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Religious Tolerance logo

Lawsuit attempting to have the federal "Defense
of marriage act" (DOMA) declared unconstitutional

2011-OCT: Servicemembers Legal Defense
files lawsuit in MA Federal Court.
Major announcement by Obama Administration.

Sponsored link.

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The acronym "LGBT" refers to lesbians, gays, bisexuals, transgender persons and transsexuals.
"LGB" refers to lesbians, gays, and bisexuals.
"SSM" refers to same-sex marriage

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Background of the case:

SLDN logo The Servicemembers Legal Defense Network (SLDN) was organized in 1993. Their main goal is to achieve equal treatment for military service members of all sexual orientations: heterosexual, bisexual and homosexual. Their initial project was to help repeal the Don't Ask, Don't Tell policy which prevented LGBT members of the armed forces from serving openly. This was achieved in 2011-SEP. Their latest project is to attack the Defense Of Marriage Act (DOMA), and to have it declared unconstitutional. 1

For over two centuries, the definition of marriage throughout the U.S. had been a right reserved exclusively to the individual states. Each state determined the racial makeup, gender makeup, and minimum age that is required, and the maximum degree of consanguinity (genetic closeness) that is allowed before a loving committed couple is permitted to marry. All marriages were automatically recognized by the federal government. All married couples became eligible for equal consideration to receive federal grants, protections, etc.

On 1996-SEP-21, President Bill Clinton (D) signed DOMA into law. The law had no effect at the time, because no state allowed same-sex couples to marry. But when Massachusetts legalized same-sex marriage on 2004-MAY, the law kicked in and destroyed over two centuries of tradition. It prevented loving, committed same-sex couples who had been married in the states and had their marriages registered there from collecting any federal benefits related to their marriage. There are in excess of 1,100 benefits that every opposite-sex couple may qualify for. DOMA prevents any from being given to same-sex couples.available

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SLDN files lawsuit:

On 2011-OCT-27, nine married military servicemembers filed a lawsuit in a U.S. District Court in Boston, MA against three cabinet secretaries. The case is McLaughlin v. Panetta. It states, in part:

"This is an action by current and former active duty members of the United States armed forces seeking equal benefits for equal work. ..."

"Rather than a 'defense of marriage,' DOMA would require the Plaintiffs to divorce and marry someone else of the opposite sex to obtain spousal benefits."

"Given the military's 'zero tolerance' for discrimination based on sexual orientation, it is unconscionable that DOMA forces the military to engage in the very discrimination that it prohibits its service members from engaging in through its 'zero tolerance' policy."2

The lawsuit was filed in the same Massachusetts District Court where Judge Joseph L. Tauro ruled on two separate challenges to DOMA in 2010:

  • Nancy Gill v. Office of Personnel Management, brought by Gay & Lesbian Activists & Defenders, (GLAD; described above), and

  • A very similar case: Massachusetts v. Department of Health and Human Services, brought by the state.

Judge Tauro determined in both cases that DOMA violated the U.S. Constitution and was thus unconstitutional. 

Aubrey Sarvis, the SLDN’s executive director, told the Associated Press:

"This case is about one thing… justice for gay [bisexual] and lesbian service members… [who are] rendering the same military service, making the same sacrifices, and taking the same risks to keep our nation secure."

The Christian Post, an evangelical Christian group, notes that support for DOMA and support for discriminating against committed same-sex couples by excluding them from marriage has taken a hit lately. They state that:

"... staunch support for the protection of marriage [of opposite-sex couples to the complete exclusion of same-sex couples] has appeared to diminish publicly. Part of this is because open endorsements of gay marriage by figures like Dick Cheney, Barbara Bush, and President Barack Obama have gone largely unchallenged and unnoticed.

According to John Feeheery, a GOP strategist, this could be caused by the economic status of the country. 'I think that the economic issues are so big that this one pales in comparison,' he told the New York Times.

Gay marriage backing could have flourished in the face of less opposition as the American people and politicians focus on the economy."

Poliglot, a service of MetroWeekly, states:

"Among the benefits denied to same-sex couples currently and at issue in the lawsuit are medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military ID cards, visitation rights in military hospitals, survivor benefit plans, and the right to be buried together in military cemeteries.

The lawsuit names Attorney General Eric Holder, Defense Secretary Leon Panetta and Veterans Affairs Secretary Eric Shinseki in their official capacity. However, the complaint notes the administration's position that Section 3 of DOMA -- the federal definition of 'marriage' and 'spouse' -- is unconstitutional and states, 'The Plaintiffs do not anticipate that the United States will contest this suit because the government agrees that Section 3 of DOMA is unconstitutional'.

The complaint also claims that the plaintiffs do not expect Panetta to 'oppose the relief sought' in the lawsuit." 2

Eileen Lainez, spokesperson for the Department of Defense said:

"We will carefully evaluate the complaint and we will consult [the Department of Justice]. In the meantime, we will continue to follow the law. ..."

"Service members continue to have some benefits for which they may designate beneficiaries regardless of sexual orientation. Eligibility for a number of other benefits is restricted by applicable statutes, including the Defense of Marriage Act. In connection with 'Don't Ask, Don't Tell' repeal, the Defense Department is engaged in a careful and deliberate review of the possibility of extending eligibility for benefits, when legally permitted, to other individuals including same-sex partners." 2

R. Clarke Cooper, executive director of the Log Cabin Republicans (LCR) -- a gay positive group -- wrote:

"Log Cabin Republicans is considering filing an amicus brief in support of the SLDN suit. As LCR v U.S. challenged the DADT statute and led to legislative repeal, the DOMA suit will highlight the inequities of a stratified benefits system which runs counter to military culture."

Joe Solmonese, president of the Human Rights Campaign -- another gay-positive group -- wrote:

"Today's legal action shines a light on the difficulties that the so-called Defense of Marriage Act creates for lesbian and gay military families. HRC applauds the bravery of these service members and thanks Servicemembers Legal Defense Network and Chadbourne & Parke LLP for making sure they will get their day in court." 2

The lead plaintiffs in the case are Massachusetts Army National Guard Maj. Shannon McLaughlin, 41, and her wife, Casey McLaughlin, 34. Shannon is in the Massachusetts National Guard where she serves as a Judge Advocate General. They married in Massachusetts during 2009-DEC and are raising 10-month-old twins. Shannon obtains health care coverage from the military for herself and the twins. But Casey must pay about $700 monthly for a separate health-care account. If Casey had been a male, he would have been covered under Shannon's health care plan. A further complication is that if Shannon is deployed, Casey would be unable to take the twins to regular medical appointments at a nearby military base.

Aubrey Sarvis, executive director of the SLDN said:

"What Shannon and Casey are seeking is the same treatment that their straight counterparts, who are [also] legally married, receive every day without question and take for granted."

In addition, other plaintiffs include five other service members and two career Army and Navy veterans. 3

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2012-FEB-17: Obama Administration decides to not defend constitutionality of the U.S. Code's Title 38:

Back in 2011-FEB-23, the Obama Administration publicized their decision to no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in court.

Almost a year later, the Administration decided that several provision of Title 38 in the U.S. Code -- clauses that define veterans benefits -- are also unconstitutional because they also violate the equal protection clause of the 14th Amendment of the U.S. Constitution. Both the federal DOMA bill and Title 38 define a spouse as being "a person of the opposite sex who is a wife or husband." Thus they grant benefits to legally married opposite-sex couples but deny them to legally married same-sex couples.

On 2012-FEB-17, Attorney General Eric Holder sent a letter to John Boehner (R-OH), the House Speaker. It said:

"The legislative record of these provisions contains no rationale for providing veterans' benefits to [legally married] opposite-sex couples of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that would warrant treating these provisions differently from Section 3 of DOMA." 4

Holder listed some of the benefits being denied same-sex couples as: "medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military identification cards, visitation rights in military hospitals, survivor benefits and the right to be buried together in military cemeteries."

Aubrey Sarvis, SLDN Executive Director, issued a statement saying:

"We are pleased that the Attorney General has decided not to defend the constitutionality of DOMA in the military context, just as he has declined to defend it in other contexts. We are also delighted that, for the first time, he has said that separate definitions that apply to military veterans are also unconstitutional. This is an important step for the McLaughlin plaintiffs." 4

The article in the Huffington Post that described this development received 6,424 comments posted by readers within 17 hours of the article having been posted. Many of them appeared confused because their authors could not differentiate between:

  • A decision by the Obama Administration to no longer apply the DOMA law and Title 38. This didn't happen.

  • A decision by the Obama Administration to no longer defend the DOMA law and Title 38 in court against constitutional challenges. That did happen.

To make this clearer, the Obama Administration continues to treat married same-sex veterans as "legal strangers" to each other -- only as roommates. But they refuse to defend the constitutionality of clearly unconstitutional laws in court.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Daniel Distant, "Defense of Marriage Act: Gay Soldiers Sue Congress; Conservatives Strangely Quiet." Christian Post, 2011-OCT-27, at:
  2. Chris Geidner, "SLDN Files DOMA Challenge, Seeking Equal Benefits for Same-Sex Military Spouses," Poliglot, 2011-OCT-27, at:
  3. Ed O'Keefe, "Gay troops to file suit challenging Defense of Marriage Act, Washington Post, 2011-OCT-27, at:
  4. "Justice Department Will No Longer Defend Law Blocking Military Benefits For Same-Sex Couples," Huffington Post, 2012-FEB-17, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Declared unconstitutional > here

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Copyright © 2011 and 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2011-OCT-29
Latest update: 2012-FEB-17
Author: B.A. Robinson

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