Gay Rights Activists Want Marriage Act Overturned

The same lawyer who convinced Massachusetts' highest court to give the green light to gay marriages there, is taking her argument to the federal courts. Gay rights activists will file suit Tuesday seeking to overturn the Defense of Marriage Act, that bars federal recognition of gay marriage.

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The lawyer who convinced Massachusetts' highest court to legalize gay marriages is now taking her argument to the federal courts. Gay rights activists will file suit today. They're seeking to overturn the Federal Defense of Marriage Act which bars federal recognition of gay marriage. NPR's Tovia Smith reports.

TOVIA SMITH: It may indeed have meant a lot when gay and lesbian couples first started to marry in Massachusetts, but the attorney who argued the case, Mary Bonauto, says Massachusetts gay marriage still doesn't mean as much as it should.

Ms. MARY BONAUTO (Attorney): It's not the marriage that other couples have because there's a big hole in it in terms of basically every area of life and death that the federal government is involved in.

SMITH: Bonauto is now challenging the Federal Defense of Marriage Act, saying it unfairly discriminates against gay couples in everything from federal government employee benefits to federal taxes and social security.

Ms. JOANNE WHITEHEAD(ph): These are Pianese and Siberian Iris.

Ms. BETTY JO GREEN(ph): Earlier in the spring, this is a red bud tree.

SMITH: Joanne Whitehead and Betty Jo Green stand in their now snow-covered back yard in Boston, recalling the garden wedding they held back when their flowers were in full bloom and their hopes were high. After they got married in 2004, they immediately began to reap the benefits - for example, on their state taxes. But when Green and Whitehead applied for social security benefits as a married couple, they were turned down. That means that eventually, if for example Green dies first, Whitehead will get some $13,000 less in survivor benefits each year.

Ms. WHITEHEAD: Here we have paid into the social security system all our working lives, and we just aren't getting the same protections as other married couples. And, you know, that's - that doesn't seem fair.

SMITH: There are eight couples joining the suit. There's a postal worker who gets health insurance for herself and her kids, but can't get coverage for her legal spouse. There are several married couples who pay higher federal taxes because they can't file a joint return. And there's Dean Hara, who was married to the late Congressman Gary Studds. Hara could not get survivor benefits normally available to Congressional spouses like health insurance and access to Studd's pension.

Mr. DEAN HARA: I get the letter back saying that on the federal level, we are not married. And it is frustrating. It is a slap in the face.

Representative BARNEY FRANK (Democrat, Massachusetts): That's a blatant denial of equal protection of the law.

SMITH: Massachusetts's Congressman Barney Frank says it's unconstitutional for the federal government to refuse to respect the legal marriage of a gay couple from a state that allows it.

Rep. FRANK: The whole purpose of the Defense of Marriage Act was to reinforce the right of a state to decide for itself who can get married and who can't. Now they then turn around and say, okay, but here's the deal: that in those states that do allow it, the federal government will confer benefits on one set of the people that Massachusetts allows to marry and not on the other set.

SMITH: Even opponents of gay marriage concede that the Defense of Marriage Act is more vulnerable now. President Obama publically supports repealing the law. There are not yet enough votes to do that in Congress, so any change now may be more likely in the courts. But Jim Campbell, attorney with the Alliance Defense Fund, insists legally, the federal government has a lot of leeway.

Mr. JIM CAMPBELL (Attorney, Alliance Defense Fund): The government must merely put forward a rational basis that marriage, by design, is meant to further procreation, is meant to further the family, and therefore the government has a rational basis for defining marriage as they have.

SMITH: The lawsuit attacks only the section of DOMA that keeps the federal government from recognizing a gay marriage. The other part that says a state doesn't have to recognize another state's gay marriage would not change. But that's small comfort to opponents like Brian Brown of the National Organization for Marriage.

Mr. BRIAN BROWN (National Organization for Marriage): Everyone knows that the next step will clearly be a federal lawsuit saying that an out-of-state same-sex marriage must be recognized in a state that currently doesn't recognize same-sex marriage because the constitution requires it.

SMITH: Advocates of gay marriage bristle at that suggestion. This is not about politics or the principle of marriage, they say, but rather it's about basic bread-and-butter issues, like who gets health insurance or social security. As attorney Mary Bonauto put it, it's not about who's allowed to marry. These couples are already married, but they're being discriminated against because they're gay.

Tovia Smith, NPR News.

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