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Same-sex spouses sue federal government

Legally married couples say they suffered injustices under the Defense of Marriage Act, which deprives them of benefits accorded others.

March 04, 2009|Carol J. Williams

Saying they suffered injustices under the Defense of Marriage Act, a dozen legally married same-sex spouses filed suit against the federal government Tuesday, alleging that the 1996 law deprives them of a range of benefits accorded other couples.

The suit filed in Boston by the Gay & Lesbian Advocates & Defenders, or GLAD, challenges a section of the federal law denying gay couples access to more than 1,000 federal programs and legal protections in which marriage is a factor.

Legal analysts predicted it will be years before the suit makes its way through the federal court system, but said they believed it had a good chance of eventually leading to the invalidation of the act's power to discriminate on the basis of sexual orientation.

"The statute wouldn't be ripped to shreds," said Laurence H. Tribe, a constitutional law professor at Harvard Law School, "but it would be unconstitutional as applied to circumstances like these where you have two couples identically legally married in the states where they live but one is entitled to financial or other tangible benefits that the other couple can't get."

All of the plaintiffs were married in Massachusetts, where gay marriage has been legal since 2004. Many of the 18,000 same-sex couples married in California last year could wage similar legal actions in the future but need first to establish that they have been harmed by the act, lawyers said.

Among the Massachusetts plaintiffs is Dean Hara, widower of U.S. Rep. Gerry Studds, the first openly gay congressman. Hara said he has been denied Studds' survivors' annuity, his health insurance and Social Security benefits.

Mary Ritchie, a Massachusetts state trooper, estimated that she and the stay-at-home mom to whom she is married have paid at least $15,000 more in federal income tax than they would have if allowed to file a joint return.

Two Californians employed in the federal court system have been waging individual battles for spousal benefits but must first exhaust administrative appeals.

"I think the people in same-sex marriages in California should file a similar suit," said Brad Levenson, a deputy federal public defender in Los Angeles fighting to get his spouse covered by his health insurance. "We've only had [a legal marriage] for about a year but we could probably at least show the harm done to us for that year."

Karen Golinski, a staff attorney with the U.S. 9th Circuit Court of Appeals whose spouse also has been denied inclusion in her family health insurance plan, conceded that gay marriage probably hasn't been legal in California long enough to have produced the "ripe cases" for challenging the federal statute.

Two 9th Circuit judges have ordered the federal court system to process the spousal benefit applications of Golinski and Levenson but the orders have been rejected because of the Defense of Marriage Act prohibition of any federal program recognition of gay marriage.

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carol.williams@latimes.com

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