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Religious Tolerance logo

Attempts in MA to have the federal "Defense of
marriage act" (DOMA) ruled unconstitutional

Arguments heard in "Gill" case.
Ruling by Federal District court, Boston MA.

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This story is a continuation of the previous essay

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2010-MAY-06: Arguments were heard by the court:

Mary L. Bonauto, GLAD’s Civil Rights Project Director, told the Court:

"This is a classic equal protection issue. The constitution applies to gay and lesbian citizens, married ones, too. What governmental purpose does the US have as an employer in treating some of its married employees, retirees and surviving annuitants differently from other married persons, such that [plaintiff] Nancy Gill pays for a self and family plan like some of her married colleagues, but the plan doesn't cover her own spouse?"

She argued that Section 3 of DOMA is unconstitutional because:

  • By treating the marriages of same-sex couples differently, it violates the Equal Protection clause in the 14th Amendment to the U.S. Constitution.

  • DOMA causes the federal government to intrude into marriage law which had been legislated by the states for 230 years.

  • DOMA burdens the marriages of same-sex couples and their right to maintain family integrity.

Plaintiff Nancy Gill is a U.S. Postal Service employee, and is married to Marcelle Letourneau. Together, they are raising two children. At a press conference, she said:

"DOMA means that our country doesn't treat our family or our marriage as equal to our friends’ and coworkers’ families. Under DOMA, we are not married, and my federal employer must deny Marcelle my health benefits. Under DOMA Marcelle won’t receive the federal health benefit given to surviving spouses. She'll also be denied my pension benefits." 1

On MAY-27, GLAD filed an amended complaint that included more recent financial data from three of the plaintiff couples. Because they were unable to file their federal income tax returns as "married filing jointly" three of the couples have paid $2,894, $19,066 and $25,359 in additional taxes. 2

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2010-JUL-08: Judge Joseph L. Tauro issues ruling:

U.S. District Court Judge Joseph L. Tauro ruled on two separate challenges to DOMA:

  • Nancy Gill v. Office of Personnel Management, brought by Gay & Lesbian Activists & Defenders, (GLAD; described above), and

  • A very similar case: Massachusetts v. Department of Health and Human Services, brought by the state.

Judge Tauro held that the DOMA act is unconstitutional and that it has forced the state of Massachusetts to discriminate against its own citizens. He rejected the federal government's motion to dismiss the case. He found for all but one plaintiff. In Gill, he denied Plaintiff Dean Hara's claim concerning his Federal Employees Health Benefits Plan because he lacks standing to pursue that claim in court. He allowed Plaintiffs' Motion for Summary Judgment, ruling that Section 3 of the Defense of Marriage Act (DOMA) unconstitutionally discriminated against the remaining same-sex married couples and surviving widows and widowers. 3 He wrote:

"... this court is convinced that 'there exists no fairly conceivable set of facts that could ground a rational relationship' between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection."

Judge Tauro commented on one of Congress' asserted objectives in the passage of the DOMA bill in 1996: to encourage responsible procreation and child-bearing. 4 He wrote:

"Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. 6 But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure, when afforded equal recognition under federal law." 7

The lead lawyer in the Gill case, Mary Bonauto, GLAD’s Civil Rights Project Director, said:

"Today the Court simply affirmed that our country won’t tolerate second-class marriages. I'm pleased that Judge Tauro recognized that married same-sex couples and surviving spouses have been seriously harmed by DOMA and that the plaintiffs deserve the same opportunities to care and provide for each other and for their children that other families enjoy. This ruling will make a real difference for countless families in Massachusetts." 4

Ms. Bonauto exaggerated somewhat in her reference to "our country." Judge Tauro's ruling only applies to same-sex married couples in Massachusetts. His ruling does not involve couples elsewhere in the U.S.

The complaint concerning passports was settled out of court.

The federal government was expected to decide by early 2010-SEP whether it would appeal the ruling to the U.S. Court of Appeals for the First Circuit. If it does appeal and:

  • Wins, then financial and other forms of discrimination by DOMA against legally married same-sex couples would continue as before.

  • Loses, then major forms of discrimination under DOMA will be eliminated in all of the jurisdictions within the First Circuit: Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. Of these jurisdictions, only Massachusetts and New Hampshire have legalized SSM. However, the Rhode Island legislature was considering making marriage available to same-sex couples -- a process that continues to the present time (2012-NOV).

The Obama Administration concluded that the DOMA law is clearly unconstitutional. It has decided to not take further action to appeal the ruling of the federal District Court to the First U.S. Circuit Court of Appeals.

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This story continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Arguing For Equality in Federal Court," GLAD, 2010-MAY-06, at:
  2. "GLAD Files Amended Complaint in DOMA Challenge," GLAD, 2010-MAY-27, at:
  3. "Federal Court Strikes Down DOMA Section 3," GLAD, 2010-JUL-08, at:
  4. J. Tauro, "Memorandum," 39 pages, 2010-JUL-08, at:
  5. Ibid, Page 23 & 24. Judge Tauro cited five references used by the defendants in their supplementary motion to dismiss:
    • American Academy of Pediatrics, "Committee on Psychosocial Aspects of Child and Family Health, Coparent or second-parent adoption by same-sex parents," 109 PEDIATRICS 339 (2002), at:
    • American Psychological Association, "Policy Statement on Lesbian and Gay Parents," at:
    • American Academy of Child & Adolescent Psychiatry, "Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement" at:
    • American Medical Association, "AMA Policy Regarding Sexual Orientation," at:
    • Child Welfare League of America, "Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults," at:
  6. "Goodridge v. Dep't of Public Health," 440 Mass. 309, 335 (2003). This was the court case that eventually led to the legalization of SSM in Massachusetts in 2004.

Site navigation:

Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconst. > Gill > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Unconst. > Gill > here

Copyright © 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2010-MAY
Latest update: 2011-FEB-24
Author: B.A. Robinson

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