Currently, six states and the District of Columbia give same-sex couples the civil right to marryMassachusetts, Connecticut, Iowa, Vermont, New Hampshire, and, as of June 24, 2011, New York. See http://www.nclrights.org/site/DocServer/Relationship_Recognition_State_Laws_Summary.pdf?docID=6841; http://www.nytimes.com/2011/06/25/nyregion/gay-marriage-approved-by-new-york-senate.html?_r=1&hp. Nine states provide civil unions or domestic partnership: California, District of Columbia, Delaware (starting Jan. 1, 2012) Illinois, Hawaii (starting Jan. 1, 2012), Oregon, Nevada, New Jersey, and Washington.. In addition, California recognizes the validity of the 18,000 same-sex marriages that were performed just before the passage of Proposition 8 in November 2008. Because of the Defense of Marriage Act (DOMA), however, the federal government continues to deny all legally married same-sex couples an estimated 1,138 benefits and protections available to opposite-sex married couples under federal law. Recent developments raise the likelihood that the law may be repealed or overturned soon, including federal cases challenging its constitutionality, the recent statement by the Obama Justice Department that the law is unconstitutional, as well as potential legislation targeted at some of the most deplorable effects of DOMA.

DOMA was passed by Congress in 1996 and signed into law by President Clinton in the midst of Hawaii's struggle with the constitutionality of denying same-sex couples the right to marriage. Section 2 of DOMA allows states to refuse to recognize same-sex marriages of other states irrespective of the Full Faith and Credit Clause of the U.S. Constitution, while Section 3 explicitly defines marriage as a legal union between a man and woman for all purposes of federal law. In enacting DOMA, the federal government departed from a longstanding principle of federalism that respected the valid marriages of a state, to which it generally left issues of domestic relations. Because of DOMA, the federal government denies same-sex married couples all marital benefits, protections, and responsibilities under federal law, including: the right to family medical leave to care for an ill spouse, spousal benefits of federal employment, estate protections that allow a spouse to inherit without incurring taxes, tax protections for interspousal transfers during marriage and at divorce, the right to file joint tax returns, the right to file a joint bankruptcy petition, and the ability of a U.S. citizen to sponsor a non-citizen spouse for permanent residence.

In recent years, individuals and couples denied many of these federal benefits and protections have brought claims in federal court with one case currently pending at the Court of Appeals. In Gill v. Office of Personnel Management, same-sex married couples in Massachusetts filed suit for the denial of rights related to healthcare, taxation, and social security. 699 F. Supp. 2d 374, 379-383 (D. Mass. 2010). In its ruling, the district court judge agreed with the plaintiffs and held that DOMA's Section 3 violated the constitutional guarantee of equal protection even under the highly deferential rational basis test. Id. at 387. In its companion case, Massachusetts v. U.S. Department of Health and Human Services, the same district court judge held that DOMA violated the Tenth Amendment and the Spending Clause of the Constitution. 698 F. Supp. 2d 234, 248-249 (D. Mass. 2010). In October 2010, despite Obama's acknowledged opposition to DOMA, the Department of Justice appealed those rulings, and the cases have been consolidated and are currently pending in the First Circuit.

Not long after the Massachusetts decision, couples from Connecticut, Vermont, and New Hampshire filed suit in Connecticut district court for the denial of various federal benefits under DOMA (Pedersen v. Office of Personnel Management, 3:10- cv-1750 (D. Conn. filed Nov. 9, 2010)) and a widow brought a claim in New York district court after she was forced to pay more than $350,000 in federal estate taxes when her partner of 44 years died (Windsor v. U.S., 1:10-cv-8435 (S.D.N.Y. filed Nov. 9, 2010)). The filing of these two new cases in the Second Circuit—which had no legal precedent on the level of scrutiny to apply to classifications based on sexual orientation—forced the Obama administration to reconsider its earlier defense of DOMA. On February 23, 2011, Attorney General Eric Holder announced the administration's revised position that (1) laws that classify on the basis of sexual orientation should be subject to heightened scrutiny, (2) Section 3 of DOMA was unconstitutional because it could not withstand heightened scrutiny, and (3) the DOJ would no longer defend DOMA in federal court, though Congress had the option of stepping inSee Letter from Eric H. Holder, Attorney General, to John Boehner, Speaker, U.S. House of Representative, Re: Defense of Marriage Act (Feb. 23, 2011) available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html..

In California, two suits are also pending at the federal district court that involve challenges to DOMA based on the denial of specific benefits. In Golinski v. Office of Personnel Management, a federal employee sued after her employer denied health insurance to her wife (3:10-cv-00257 (N.D. Cal. filed Jan. 20, 2010)), and in Dragovich v. U.S. Dep't of the Treasury (Case No. 3:10-cv-01564 (N.D. Cal. motion to dismiss denied Jan. 18, 2011)), numerous public employees filed suit after their spouses were denied long-term pension and health care plans because of DOMA. In addition, on June 13, 2011, in an opinion signed by twenty bankruptcy judges, U.S. Bankruptcy Court for the Central District of California found DOMA unconstitutional in a case involving a joint Chapter 13 bankruptcy petition filed by a legally married couple. In re Balas and Morales, 2:11-bk-17831 TD (C.D. Cal. decision filed June 13, 2011).

Although the Obama administration no longer defends DOMA in the courtroom, the administration has confirmed it will continue to enforce DOMA until it is overturned, including in the area of immigration. Under federal immigration law, a U.S. citizen has the option of sponsoring a non-citizen spouse for permanent residence. Because of DOMA, however, an estimated 54,000 bi-national same-sex couples in the U.S. are precluded from doing the same. Therefore, when one spouse is subject to deportation, a same-sex couple is forced to make the intolerable choice of physically separating or moving abroad to stay together—often to countries hostile to gay couples. Moreover, once an individual is deported, immigration law often bars return for up to 10 years. Although the Attorney General did remand one immigration case involving a civil union to the Board of Immigration Appeals to determine "whether and how the constitutionality of DOMA is implicated" (Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011)), the official policy of the administration on enforcement has not changedFor more information on the effect of DOMA in immigration cases involving bi-national same-sex couples, see Protecting and Preserving the Rights of LGBT Families: DOMA, Dorman, and Immigration Strategies by the Legal Action Center and Immigration Equality (June 13, 2011) available at http://www.legalactioncenter.org/sites/default/files/DOMA-Removal-Proceedings-6-13-2011.pdf..

Legislation like the Uniting American Families Act of 2009 (UAFA) could help mitigate the denial of rights caused by DOMA before DOMA is overturned. UAFA, introduced by Senator Patrick Leahy (D-VT) and Representative Jerrold Nadler (D-NY) in 2009, would change the definition of "spouse" in U.S. immigration law to include "permanent partners." See 2009 H.R. 1024 § 3; 2009 S.B. 424. This change would allow U.S. citizens and lawful permanent residents to petition for permanent residence for a same-sex partner. If passed, UAFA would provide same-sex bi-national couples in permanent partnerships with the same rights, and the same burden of proof as to the validity of the relationship, as opposite-sex married couples.

Until DOMA is overturned by the Supreme Court or repealed by Congress or an executive order, same-sex couples will have to continue struggling with a patchwork of laws that creates challenges in every aspect of their lives.

Originally published in the California Minority Counsel Program eNewsletter - May/June 2011 Issue

Erin Dominguez is an associate in the family law department at Sideman & Bancroft LLP in San Francisco. She also sits on the Board of Directors for the National Center for Lesbian Rights. edominguez@sideman.com 415-392-1960