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Gay Couples Challenge Defense Of Marriage Act

Kathy Bush (left) and Mary Ritchie help their sons, William and Ryan, with homework.
Tovia Smith
Kathy Bush (left) and Mary Ritchie help their sons, William and Ryan, with homework.

Six years after Massachusetts became the first state in the nation to legalize gay marriage, a group of married same-sex couples will be in federal court in Boston on Thursday, arguing that their marriages should also be recognized by the federal government.

Among those bringing the lawsuit, considered to be the first serious challenge of the Federal Defense of Marriage Act, or DOMA, are Kathy Bush and Mary Ritchie. When they married in 2004, they thought they would finally get the benefits and protections other couples do, without having to hire lawyers to draw up special contracts to secure everything from their parental rights to health care proxies.

"We said, 'Wow! We can actually exhale now,' " recalls Ritchie. "You know, if someone says the word 'married,' everybody knows what that means."


But it wasn't long before they discovered that "everybody" did not include the federal government, which is barred by DOMA from recognizing gay marriages. For all 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 would not be eligible for federal benefits available to other widows of law enforcement officers.

Ritchie and Bush also have to check the "single" box on their federal tax returns, and they say that has cost them an extra $20,000 over the six years they have been married.

"That's huge money," Ritchie says, "and it's only going to continue to grow, and that money is ours."

"It's sort of like we're treated as second-class citizens," Bush adds.


Bush, Ritchie and 17 other plaintiffs argue that the federal government can't just ignore some marriage certificates and recognize others. Their lawyer, Gary Buseck with Gay and Lesbian Advocates and Defenders, says DOMA violates the equal protection clause of the Constitution because it is discriminatory.

When Congress passed the law in 1996, Buseck says, members "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."

Indeed, in heated congressional debate over DOMA in 1996, supporters argued the stakes couldn't be higher. One of DOMA's authors, former Republican Rep. Bob Barr, proclaimed, "The flames of hedonism and the flames of self-centered morality are licking at the very foundations of our society."

Barr, now a libertarian, has since called for DOMA's repeal, saying it violates states rights. President Obama also supports repeal. But his administration is in the awkward position of having to defend the law in court. As a Department of Justice official put it, we "can't pick and choose which federal laws [to] defend based on any one administration's policy preferences."

So, while government lawyers go out of their way in their legal papers to call DOMA “discriminatory,” they’re also arguing Congress did have good reason to want to preserve the status quo.

Peter Sprigg, with the Family Research Counsel, says Congress had to hit the brakes on redefining marriage.

"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," he says. "I think it's obvious that Congress has an interest in not allowing that to happen."

But legal experts say that argument will be a hard sell, since the federal government has always deferred to states on the issue of marriage eligibility.

States have long had conflicting laws, and the federal government has never before refused to yield to a state's definition of who is legally wed.

"The federal government has never taken this step against any other class of marriages in American history," says Andrew Koppelman, a professor at Northwestern University Law School.

"Not between uncles and nieces, not between blacks and whites, not between young teenagers," he says. "Never, ever before."

Koppelman says this lawsuit may well succeed, in part, because it's limited in scope.

The plaintiffs are suing only for recognition from the federal government, but not from other states. Their suit does not address the part of DOMA that protects states from having to recognize a gay marriage from another state.

But that's little comfort to opponents of gay marriage like Sprigg.

"Obviously it's not going to be just limited to this," he says. "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."

Bush and Ritchie laugh at the suggestion. "Of course!" they say; they'd love to see gay marriage legal everywhere. But that is a different fight, they say. This battle is for couples like them who are already married.

"This is about my family and protecting my family," says Bush. "You know, [the fight for marriage] is over in Massachusetts. It's done. We just need to recognize that."

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.

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