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Six years after Massachusetts became the first state to legalize gay marriage, several gay couples are in federal court today. They're arguing that their same-sex marriages should also be recognized by the federal government.
From Boston, NPR's Tovia Smith reports that it's the first serious challenge of the government's Defense of Marriage Act, known as DOMA.
TOVIA SMITH: Kathy Bush and Mary Ritchie had already been together for more than a decade, bought a house together and had two kids when they finally got to legally marry in Massachusetts. Finally, they say, they were real deal and they could stop running to lawyers for special contracts meant to secure everything from their parental rights to their ability to visit each other in the hospital.
Ms. KATHY BUSH: We were just so excited.
Ms. MARY RITCHIE: Yeah, we said, Wow, this is - we can actually exhale now. You know, if someone says the word married, everybody knows what that means.
SMITH: But it wasn't long before they found that everybody did not include the federal government, which is barred by DOMA from recognizing a gay marriage. For federal purposes, Ritchie and Bush are still single. So, for example, if Ritchie, a state police lieutenant, were killed in the line of duty, Bush could not get federal benefits available to widows of law enforcement officers.
And they have to file their federal taxes as singles, which they say has cost them an extra $20,000.
Ms. RITCHIE: That's huge money and it's only going to continue to grow, and that money is ours.
Ms. BUSH: You know, the federal government undermines us. It's sort of like we're treated as second-class citizens.
SMITH: Attorneys for the plaintiffs argue the government can't just ignore some marriage certificates and recognize others. Plaintiffs' lawyer, Gary Buseck, says the law, passed by Congress in 1996, violates the equal protection clause of the Constitution because it basically discriminates for no good reason.
Mr. GARY BUSECK (Attorney): Congress simply had a knee-jerk reaction that we have to bar the doors of the federal government in every conceivable way from the invasion of married gay people. I mean, they let it all hang loose.
Representative BOB BARR (Republican, Georgia): The flames of hedonism, the flames of self-centered morality, are licking at the very foundations of our society.
SMITH: Back in 1996, then-Congressman Bob Barr was one of DOMA's sponsors, but he's since called for its repeal, saying it violates states rights.
President Obama also wants DOMA repealed, but his administration's in the awkward position of having to defend it in court. As a spokesperson put it, we can't pick and choose based on policy preferences.
So while government lawyers call DOMA discriminatory, theyre also arguing Congress had had good reason to try and preserve the status quo. They declined to comment on tape, but Peter Sprigg from the Family Research Counsel says Congress needed to hit the brakes.
Mr. PETER SPRIGG (Family Research Counsel): A change in something so fundamental to society as the definition of marriage should not be forced upon the federal government by the decisions of a handful - a tiny minority - of the states. I think it's obvious that Congress has an interest in not allowing that to happen.
Professor ANDREW KOPPELMAN (Northwestern University Law School): The problem with that argument is that federal government has been perfectly happy to let the states dictate to them for 200 years.
SMITH: Andrew Koppelman, professor at Northwestern University Law School, says states have always had conflicting laws on marriage, and the federal government has never before refused to take a state's cue on who is legally wed.
Prof. KOPPELMAN: In fact, the federal government has never taken this step against any other class of marriages in American history. Not between uncles and nieces, not between blacks and whites, not between young teenagers. Never, ever before.
SMITH: Koppelman says this lawsuit may well succeed, in part because it's limited in scope.
The plaintiffs are only suing for recognition from the federal government and not from other states, though that's little comfort to opponents of gay marriage like Peter Sprigg.
Mr. SPRIGG: Obviously it's not going to be just limited to this. The people who are pressing this are people who believe that same-sex marriage is a civil right and should be legal in all 50 states. That is their ultimate goal and they will not be satisfied until that goal is achieved.
Ms. BUSH: You want something to drink?
Unidentified Child: Go-Gurt.
Ms. BUSH: Go-Gurt? Are we going to have time to your homework before baseball, do you think?
SMITH: Home in their kitchen after school, Bush and Ritchie say ultimately of course they'd love to see gay marriage legal everywhere, but this battle, they say, is for couples like them who are already married.
Ms. BUSH: This is about my family and protecting my family. You know, it's over in Massachusetts. It's done. We just need to recognize that.
SMITH: If they prevail in federal court, and through an appeal, it'll almost certainly be the U.S. Supreme Court that decides whether a same-sex marriage in Massachusetts ought to mean more than it already does.
Tovia Smith, NPR News, Boston.
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