U.S. Justice Department argues that Defense of Marriage Act is unconstitutional
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The U.S. Department of Justice argues the Defense of Marriage Act is unconstitutional, in a brief filed in a Pennsylvania case over whether the wife of a former female Cozen O'Connor partner is able to collect the partner's profit-sharing plan benefits under federal law.
"This court should hold that Section 3 of DOMA unconstitutionally discriminates," attorneys for the DOJ said in its brief in Cozen O'Connor v. Tobits.
"Section 3 treats same-sex couples who are legally married under their states' laws differently than similarly situated opposite-sex couples, denying them the status, recognition and significant federal benefits otherwise available to married persons."
The Dec. 30 filing was largely expected given the Obama administration's directive that it would not defend the law. This is the seventh case in which the Justice Department has filed briefs affirmatively arguing Section 3 of DOMA is unconstitutional, according to the department's Office of Public Affairs.
But in most cases, the department is representing the defendant organization that enforced DOMA and not challenging the plaintiffs' arguments. Tobits appears to be the only case involving two private parties fighting over the rights to benefits.
The case arose out of a dispute over approximately $41,000 in benefits accrued by partner Sarah Ellyn Farley before her death from cancer in 2009. A beneficiary form -- signed just hours before Ms. Farley's death, which is suspicious in the eyes of lawyers representing Jennifer Tobits -- says the parents are the beneficiaries.
The parents, David and Joan Farley, argue they have to be the beneficiary because DOMA defines "spouse" as a person of the opposite sex. That definition, they argue, prohibits Cozen O'Connor's plan from recognizing Jennifer Tobits as Sarah Ellyn Farley's wife.
The parents also argued that a similar Pennsylvania statute limiting marriage to between a man and a woman also bars Ms. Tobits from receiving the benefits from the Pennsylvania-based firm.
Ms. Tobits and Ms. Farley married in Toronto in 2006 and lived in Illinois. Ms. Farley was a partner in Cozen O'Connor's Chicago office; at the time of their marriage and Ms. Farley's death, Illinois did not provide for same-sex marriages, though the state has since passed a civil union law.
Ms. Tobits argues the constitutionality of same-sex marriages doesn't have to come into play because DOMA does not control the interpretation of the private profit-sharing plan. If it does, however, she argues DOMA is unconstitutional.
A number of other groups have sought and received the ability to file amicus curiae briefs with the court.
The Justice Department spent nearly 10 pages of its 42-page brief explaining how gays and lesbians have been discriminated against by federal, state and local governments as well as by private parties.
"The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals," the department said.
The Justice Department further argued gays and lesbians are a minority group that has historically lacked political power. While much of the discrimination by the federal government has subsided, the department said there are still efforts such as ballot initiatives to repeal laws protecting gays and lesbians.
As an example, the Justice Department said that when DOMA was enacted in 1996, only three states had laws specifically restricting marriage to opposite-sex couples. Now there are 37 with such laws and 30 states have constitutional amendments explicitly restricting marriage to opposite-sex couples.
As to the fourth prong of the test to determine if heightened scrutiny should apply, the department said, "Just as a person's gender, race or religion does not bear an inherent relation to a person's ability or capacity to contribute to society, a person's sexual orientation bears no inherent relation to his or her ability to perform or contribute."
That point was made clear by President Barack Obama, the department argued, when he signed the Don't Ask, Don't Tell Repeal Act of 2010, which involved military service.
The brief was filed by Justice Department trial attorney Judson O. Littleton and signed by U.S. Attorney Zane D. Memeger of the Eastern District of Pennsylvania.
First Published January 9, 2012 12:00 am