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The Benefits of Fairness
A lawsuit tests the federal protections owed to same-sex couples.

Saturday, March 21, 2009

NANCY GILL, a 21-year veteran of the U.S. Postal Service,was barred from insuring her spouse under the federal employee health plan. Randell Lewis-Kendell was denied a $255 lump-sum Social Security payment when his spouse of 30 years died in 2007. Keith Toney was told he could not change his name on his passport to reflect his marriage.

Ms. Gill and Mr. Lewis-Kendell and Mr. Toney each married same-sex partners in Massachusetts and continue to live in the state, which has legally sanctioned such unions since 2004. But they were denied federal spousal benefits because Section 3 of the Defense of Marriage Act (DOMA) defines marriage as the legal union of one man and one woman. These three and 12 other married gay Massachussets residents recently sued the federal government, arguing that Section 3, as applied in their cases, is unconstitutional because it denies them the equal protection of the law. They are right.

We have long supported legal protections for all committed couples. We have, however, been skeptical of attempts to use the courts -- rather than the political process -- to advance the cause of same-sex marriage. This case is different. The plaintiffs aren't arguing that they should be allowed to marry or to call their relationships marriages; they are married in the eyes of their home state, which has concluded that there are no legitimate reasons for denying these couples the full rights and responsibilities of marriage.

To show that its actions are constitutional, the federal executive branch must demonstrate that it has a rational basis for denying benefits. According to the legislative history, DOMA was created for the purposes of "defending and nurturing the institution of traditional heterosexual marriage," "defending traditional notions of morality" and "protecting state sovereignty and democratic self-governance."

But is traditional marriage strengthened by forcing Ms. Gill to pay extra for medical coverage for her partner when her partner could be covered at no additional charge under the federal health plan that already includes Ms. Gill and the couple's two children? Are traditional notions of morality truly protected by denying a man grieving the loss of his lifelong companion a $255 Social Security payment that often goes toward funeral expenses? Are states' rights bolstered by the State Department's decision to block a name change on a passport when that change is already reflected on other forms of identification, such as a driver's license?

President Obama is on record opposing DOMA. Although the Justice Department typically defends acts of Congress in court, Mr. Obama should ask his legal advisers to determine whether they, like the plaintiffs, believe DOMA as applied in this case is unconstitutional. If so, Mr. Obama should consider whether this is one of those rare instances where the Justice Department declines to defend a law.

The plight of those described in the lawsuit raises profound questions about the legality, fairness, decency and wisdom of denying benefits to committed same-sex couples -- regardless of marital status or home address. This larger question is not before the Massachusetts federal trial court, but it should be on the minds of all who care about justice.

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