Gay couples ask Mass. federal judge to strike down US marriage law, calling it discriminatory

Gay couples ask judge to toss US marriage law

BOSTON — Seven gay couples and three widowers who married in Massachusetts after it became the first state in the nation to legalize same-sex marriage went to court Thursday to challenge the constitutionality of a federal law that defines marriage as a union between a man and a woman.

The couples filed a lawsuit last year, arguing that the Defense of Marriage Act is discriminatory because it denies same-sex couples access to federal benefits given to heterosexual couples. U.S. District Judge Joseph Tauro held the first hearing in the case Thursday.

The couples include a Social Security Administration retiree who was denied health insurance for his spouse; three widowers who were denied death benefits for funeral expenses; and couples who have paid more in taxes because they are not allowed to file joint returns.

Mary Bonauto, an attorney with Gay & Lesbian Advocates and Defenders, said the 1996 law, known as DOMA, got the federal government involved in regulating marriage, something it had left to the states for more than 200 years. She said the law denies gay couples access to more than 1,000 federal programs and legal protections in which marriage is a factor.

“What DOMA does is negate their marital status,” Bonauto argued during the hearing.

The law was enacted by Congress in 1996 when it appeared Hawaii would soon legalize same-sex marriage and opponents worried that other states would be forced to recognize such marriages. The lawsuit challenges only the portion of the law that prevents the federal government from affording Social Security and other benefits to same-sex couples.

Since then, five states and the District of Columbia have legalized gay marriage.

W. Scott Simpson, a Justice Department lawyer, said the Obama administration is opposed to the law, but the department has an obligation to defend the constitutionality of laws passed by Congress.

“This presidential administration disagrees with DOMA as a matter of policy and would like to see it repealed, but that does not affect the statute’s constitutionality,” Simpson said.

Simpson said the law does not interfere with the rights of individual states to “experiment in the area of marriage, but that should not dictate how the federal government applies federal law.”

Tauro did not indicate when he would rule on the government’s motion to dismiss the lawsuit and the couples’ request to declare the law unconstitutional.

After the hearing, the couples who brought the lawsuit told reporters how the law has affected them.

Herb Burtis, a voice professor at Smith College, said his spouse, John Ferris, died in 2008 after they had been together for 60 years. They married in 2004 after Massachusetts legalized gay marriage. After Ferris died, Burtis, 80, was turned down when he applied for Ferris’ Social Security retirement and survivor benefits.

“It feels like we’re second-class citizens,” Burtis said. “We don’t count, even though most of us have paid into the Social Security system for most of our lives.”