"United States v. Windsor" lawsuit: The U.S. Supreme Court
finds part of
DOMA law ruled unconstitutional.
2013-JUN to SEP: Changes for binational, married
couples. Subsequent lawsuits triggered by Windsor.
The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the federal Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States
Concerning binational, married same-sex couples:
DOMA had severely disadvantaged binational, married same-sex couples, where one partner is an American citizen, and the other is from another country. Prior to the U.S. Supreme Court's decision on 2013-JUN-26, the law prevented the federal government from recognizing such couples as married. Julian Marsh and Traian Povov were such a couple. However, two days after the Supreme Court overturned part of the DOMA law, the couple received the first "green card" issued to a binational same-sex married couple. The couple's lawyer said:
"The approval of this petition demonstrates that the Obama administration’s commitment to recognizing same-sex couples’ marriages after the Supreme Court ruling is now a reality on the ground. We expect additional approvals of green card applications and petitions in the coming days." 1
Elise Foley, a reporter for Huffington Post wrote:
"Wednesday's Supreme Court ruling doesn't entirely fix the problem -- couples must be married rather than partners, and must travel to a state that allows same-sex marriage if they don't live in one -- but it's still a major victory for LGBT rights. ..."
"Some of those binational couples have lived apart for months or even years because the foreign-born spouse can't legally remain in the country. Others must worry about whether they will lose their job and work visa, then be separated. Still others stay in the U.S. without legal status and risk deportation to be with their spouse. Some Americans just leave the country entirely when their partner cannot stay." 1
Subsequent lawsuits linked to this U.S. Supreme Court ruling:
A flood of lawsuits were triggered, inspired, and/or influenced by Justice Kennedy's DOMA ruling on 2013-JUN-26 in Windsor v. United States. They totaled at least 15 during the first month alone:
- The national office of the American Civil Liberties Union (ACLU) and its state affiliates have active cases underway in Pennsylvania and North Carolina.
- The ACLU joined with the National Center for Lesbian Rights (NCLR) to file a case in New Mexico.
- Lambda Legal has a case in Arizona concerned with health coverage.
- Lambda and the ACLU had separate cases in Illinois which have been consolidated into one. They intend to file a case in Virginia shortly.
- Jackson v. Abercrombie a lawsuit attempting to legalize SSM in Hawaii -- was being appealed to the 9th U.S. Circuit Court of Appeals when the U.S. Supreme Court rulings were released. The Supreme Court's DOMA ruling in Windsor v. United States is expected to have a major impact on Jackson.
- A very similar lawsuit from Nevada, Sevcik v Sandoval, was also being appealed to the 9th U.S. Court of Appeals and is expected to be significantly impacted by Windsor.
- Lawsuits filed by lawyers on behalf of their clients are also known to exist in Arkansas, Kentucky, Michigan, New Mexico, Ohio, Oklahoma, Texas, and Utah.
On 2013-JUL-18, about three weeks after the DOMA decision was released, after having wasting $2.3 million on a hopeless effort to defend the clearly unconstitutional federal DOMA law and thus preserve discrimination against same-sex married couples, the House Bipartisan Legal Advisory Group (BLAG) threw in the towel. They wrote a brief in the Tracey Cooper-Harris v. United States case, saying:
"The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant." 2
BLAG was a bipartisan group in name only. While it was composed of three Republicans and two Democrats. To our knowledge, the vote on every decision that the group made was 3 to 2, along strict party lines.
Information on specific lawsuits:
- New Mexico: The American Civil Liberties Union (ACLU) of New Mexico, ACLU national, the National Center for Lesbian Rights (NCLR), a legal group, and some attorneys filed a Writ of Mandamus with the New Mexico State Supreme Court. They asked the court to rule on two issues:
- Whether same-sex couples can marry in the state and
- Whether the state recognizes same-sex marriages solemnized in other states.
State recognition of same-sex marriages is needed so that such couples are eligible for the 1,138 federal marriage benefits and protections that are now available to married same-sex couples as a result of the United States Supreme Court decision on 2013-JUN-26 which declared Section 3 of the federal Defense of Marriage Act (DOMA) to be unconstitutional. More details.
The brief urges U.S. District Judge Terrence Kern to issue a ruling. It also points out that:
"Only a constitutional removal of Oklahoma's marriage ban ... will provide same-sex couples in Oklahoma all the federal benefits and responsibilities that are available now in 13 states and the District of Columbia."
The U.S. Justice Department has expressed an interest in filing a response to Holladay's brief. They have been given until AUG-24 to do this. 3 More details
- Pennsylvania: Twenty-one plaintiffs launched a lawsuit during 2013-JUL called "Whitewood v. Corbett" in federal District Court. The intent is to force Pennsylvania to allow same-sex marriage in the state and to recognize same-sex marriages legally solemnized out-of-state. More details
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Gay Couple Receives Green Card After Supreme Court Ruling: DOMA Project," The Huffington Post, 2013-JUN-29, at: http://www.huffingtonpost.com/
- Shannon Argueta, "House GOP Concedes Victory And Announce They Will No Longer Defend DOMA ," Addicting Info,
- Chris Casteel, "Supreme Court decision bolsters challenge to Oklahoma gay marriage ban, couple argues in state case," NewsOK, 2013-JUL-31, at: http://newsok.com/