The Legal Discrimination of "DOMA"

The Legal Discrimination of “DOMA”-

By: Leslie Arsenault, President of Diversity Alliance at MSL.

On April 4, 2012, I watched history in the making. As the President of MSL’s Diversity Alliance, I was invited to watch the oral arguments concerning the constitutionality of the Defense of Marriage Act or “DOMA” in the First Circuit Court of Appeals in Boston. I cannot describe the emotion and gratitude I felt upon hearing Attorney Mary Bonauto from Gay & Lesbian Advocates & Defenders (GLAD) and Maura Healey, Chief of the Civil Rights Division for the Massachusetts Attorney General Martha Coakley’s office, telling the three federal justices how DOMA blatantly discriminates against same-sex couples; how it hurts an entire class of people; and how it hurts me.

In 2003, the Massachusetts Supreme Judicial Court became the first court in the history of the United States to hold that denying marriage licenses to same-sex couples violated state constitutional equal protection principles in Goodridge v. Department of Public Health.[1]  This landmark case resulted in Massachusetts becoming the first state in the nation to allow same-sex couples to marry. However, the federal government already had a law in place to stop same-sex couples from being granted any of the over 1,100 different federal rights and benefits of marriage they grant to heterosexual marriages. [2] This discriminatory law, the Defense of Marriage Act, is commonly known as “DOMA”.

DOMA was enacted in 1996, when it appeared that Hawaii would soon legalize same-sex marriage and opponents worried that the federal government as well as other states would be forced to recognize such marriages.[3] Even though the federal Department of Justice (DOJ) is required to defend DOMA in litigation, last year President Obama instructed the DOJ to stop defending the law because he believes that laws which discriminate based on sexual orientation are presumptively unconstitutional. Although section 3, which defines “marriage” as “the legal union of one man and one woman,” has been found unconstitutional in two Massachusetts court cases (which are now under appeal) and a growing number of DOMA related cases, the House of Representatives decided to take over the defense of this law in place of the DOJ.[4]

Obama is right; equal protection should provide same-sex couples with the same legal and economic benefits that opposite-sex couples are given, yet we are denied these civil rights based solely upon with whom we form a family. Did you realize that up until 1967, blacks and whites could not be legally married because of the ban on interracial marriages?  Did you know that those laws were changed by the courts and not by a vote on a ballot?[5] We all know how that vote would have gone 45 years ago. Those laws are now seen as absurd and discriminatory, which they were, yet many people back then ignored the plight of the inter-racial couples who wanted to marry and have families, much like the way many Americans have been turning their backs on families like mine.

Let me tell you about my family. My wife and I are both in our fifties and have been together for ten years and legally married in Massachusetts for almost five. We have five children between us and three grandkids.  She is an Army veteran and a registered nurse who last year was recognized as “Addictions Nurse of the Year” by the Massachusetts Nurses Association. I have run a small house-cleaning business for 25 years and am currently a 2L student at MSL.

We have each paid into the U.S. Social Security System for over 40 years, yet when one of us dies, the other one does not get her Social Security survivor’s benefits which are granted to every eligible heterosexual surviving spouse in America. Why? Because we are gay and for no other reason. Our federal government legally considers us to be “roommates” instead of “family”, so we, and ultimately our children, are not entitled to receive over 1,100 of the very benefits and protections afforded our “straight” counterparts. We are denied the right to an estate tax exemption and next-of-kin status when one of us dies leaving assets to the other; the right to take unpaid family leave if one of us becomes seriously ill, and the right to file our federal taxes together. We have to file jointly as married for the State; then both file separately as single for the IRS, which of course costs more. In fact, my wife has to pay over $2,000, annually, in a federal “luxury tax” for putting me on her health plan. When I fill out my financial-aid forms for law school, I can’t check off the “married” box, because it is a federal form. This is humiliating and reminds me how my own government considers me a second-class citizen. Additionally, gay U.S. citizens are unable to sponsor their non-citizen, same-sex spouse for legal permanent residency. How is this fair in a country that claims “Equal Protection For All?”

Most opponents of same-sex marriage argue that marriage is for the purpose of raising children, and that two parents of the same sex are not adequately equipped to raise children. There is no basis in fact for this opinion: studies show that children do well in homes where they are nurtured and loved, regardless of parental gender, and “homosexuality per se is irrelevant to parenting ability.”[6] In fact, the nation’s leading child-welfare experts - the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, and the National Association of Social Workers - all support gay and lesbian couples adopting and having children. They all agree that children raised by gay and lesbian parents physically and mentally are as healthy as other children.[7]

Furthermore, many gays and lesbians, like me, have biological children as the result of trying to conform to society’s pressure to be “straight” by having heterosexual relationships, which ultimately fail. Is it fair to deny these children the same benefits and protections that their cousins, friends, and neighbors get? Additionally, many gay couples are so committed to having a family that they either go through tremendous costs, both financially and medically, to have children through means such as in vitro fertilization, or foster and/or adopt children.  It is interesting to note same-sex couples have adopted more disabled foster children than opposite -sex couples, at a rate of 14 percent to 11 percent. There is insufficient data to prove same sex couples are in fact more nurturing than opposite-sex couples, but evidence suggests heterosexuals prefer to adopt “healthy white” children, whereas same-sex couples are more willing to adopt the disadvantaged.[8]

Secondly, many heterosexual couples choose not to or are unable to have children, yet their marriages are considered valid. Other opponents fear that gay couples will somehow “make their children gay.” This is a ridiculous assertion since no one has ever been able “to make” someone gay or straight.[9] My parents couldn’t make me “straight” even though they “made” my other nine siblings that way. As we say in the gay community: “If you want to end homosexuality, tell the straight people to stop making gay babies!” By the way, up to this point, all five of the children I’ve been raising are heterosexual.

I know that many people, especially religious leaders, believe that homosexuality is a chosen behavior that does not deserve protection under the law. But who would choose to be a second-class citizen, teased, bullied, and discriminated against (even by their own families) for most, if not all, of their lives? Homosexuality is an inborn trait that is NOT chosen, just as surely as we don’t get to choose the color of our eyes or our skin.[10]

Some religious leaders also say that allowing gay marriages will give a stamp of approval to a behavior that they believe is immoral.  But what about the “separation of church and state” in America? As I like to say, “Jesus did not write the U.S. Constitution!”

Marriage is a civil right granted to us all constitutionally. No one requires a church’s approval to be legally married. Even inmates can get married, yet I’m pretty sure the behavior that landed them in jail wouldn’t be considered “moral.” [11]

The nation will now wait for the First Circuit’s decision concerning the constitutionality of DOMA to be handed down. This is a giant step toward marriage equality which GLAD believes will likely end up being decided before the nation’s highest judicial authority within four years. [12]  

I have no doubt that the U.S. Supreme Court will be on the right side of history by striking down DOMA, unless Congress decides to repeal this statute before then. 

 Hopefully, I have persuaded some of you to look at DOMA and the plight of your fellow citizens, who happen to be gay, in a new way. We are all part of the same race, the human race, and we all deserve to be treated with dignity and respect by one another.   Like it or not, we humans are much more similar than you think: we all want to be happy, healthy, and accepted. Please help the last group of people who are legally discriminated against (around the world) to enjoy the same rights we are all born free with as human beings. As Thurgood Marshall said in his victorious fight for equality in education for African-Americans in Brown v. Board of Education,[13] separate is not equal.[14] Most of all, remember that not only are “All Men Created Equal,” but “We The People” means EVERYONE!  

   Thank you, Leslie Arsenault, President of the Diversity Alliance at the Massachusetts School of Law, Andover, MA.

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[1] Goodridge v. Department of Public Health, 440 Mass.309, 798 N.E.2d 941 (2003).

[2]  General Accounting Office: OGC-97-16 Defense of Marriage Act, January 31, 1997; General Accounting Office:   GAO-04-353R Defense of Marriage Act: Update to Prior Report, January 23, 2004, accessed February 12,

[3] 1 U.S.C. § 7: 28 U.S.C. § 1738C (1996). (DOMA). Pub. L. 104-199, 100 Stat. 2419 (Sept. 21, 1996).

[4]  Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (2010); Massachusetts. v. U.S. Dept. of Health and Human Services, 698 F.Supp.2d 234 (2010);  Golinski v. United States Office of Personnel Management, Document 96, February 28, 2011, "List of Pending cases where the Defense of Marriage Act is being challenged”, http://www.scribd.com/doc/497553; Milton J. Valencia, “Appeals court in Boston to hear Defense of Marriage challenge.”, Boston Globe (April 3, 2012).

[5] Loving v, Virginia, 388 U.S. 1; 87 S.Ct. 1817; 18 L.Ed.2d 1010 (1967).

[6] Bezio v. Patenaude, 381 Mass. 563, 410 N.E.2d 1207 (1980).

[7] Glad Briefs, Experts Weigh In On DOMA, 4 Winter (2012).

[8] Macomber, Jennifer E. & Kate Chambers, Adoption and Foster Care by Gay and Lesbian Parents in the United States , The Urban Institute, (March 23, 2007)http://www.org/publications/411437.html.

[9] Hunter, Rob, Gay Rights Needed to Protect Equality, University Wire, May 6, 2005; Adoption ban on gay couples “wrong”, Daily Telegraph, October 31, 2002.

[10] Science Daily, Homosexual Behavior Largely Shaped By Genetics & Random Environmental Factors, June 28, 2008

[11] Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673 (1978); Turner v. Safely , 482 U.S. 78, 107 S.Ct. 2254 (1987).

[12] http://www.glad.org/doma .

[13] Brown v. Board of Education, 347 U.S. 483,  74 S.Ct. 686  (1954).

 [14]  Id. at 491.