A legal battle over a law that denies federal benefits to married gay couples is headed to a federal appeals court in Massachusetts, the first state in the nation to legalize gay marriage.
The federal Defense of Marriage Act, enacted by Congress in 1996, defines marriage as a union between a man and a woman and prevents the federal government from recognizing same-sex marriages.
A federal judge in Massachusetts declared a key section of the law unconstitutional in 2010 after Attorney General Martha Coakley and the legal group Gay & Lesbian Advocates & Defenders sued. Judge Joseph Tauro found that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including the ability to file joint tax returns.
An appeal by a bipartisan congressional group in both cases will be heard Wednesday by the federal appeals court in Boston.
For Jo Ann Whitehead and Bette Jo Green of Boston, the law means they are unable to plan for the future the way other married couples can.
The couple, who are plaintiffs in the lawsuit filed by GLAD, have been together nearly three decades and married for seven years, since shortly after same-sex marriage became legal in Massachusetts in 2004. Green, 69, a labor and delivery nurse, has always earned more money than Whitehead, 70, a garden educator. But because of the law, known as DOMA, Whitehead has been denied the "spousal benefit" usually allowed to the lower-earning spouse under Social Security. They estimate that is a loss of about $3,600 a year.
They also estimate that they lose about $1,000 a year because they are unable to file a joint federal tax return.
"Being marginalized for really what I view as no good reason is unfortunate," Whitehead said. "It would be nice to not be so invisible anymore as a married couple."
DOMA was enacted when it appeared Hawaii would soon legalize same-sex marriage and opponents worried that other states would be forced to recognize such marriages. Since the national law was passed in 1996, many states have instituted their own bans on gay marriage, while eight states have approved gay marriage: Connecticut, New York, Iowa, Massachusetts, New Hampshire, Vermont, Maryland and Washington as well as the District of Columbia. Maryland and Washington's laws are not yet in effect and may be subject to referendums.
In Massachusetts' lawsuit, Coakley argued that the law violates the U.S. Constitution by interfering with the state's right to make its own marriage laws and forces the state to violate the constitutional rights of its residents by treating married gay couples differently than other married couples.
"We essentially have to keep two sets of books _ you're married for state purposes, but you're not married for federal purposes. It requires us, in a way, to discriminate against our citizens because so many federal benefits are distributed through state agencies," Coakley said Friday.
In GLAD's lawsuit, Tauro found that the law violates the equal protection clause of the U.S. Constitution.
"Massachusetts made this decision to marry these people, and they are married," said GLAD attorney Mary Bonauto. "Now they come before the federal government as married people, as anybody else in Massachusetts does, but only the same-sex couples are denied recognition under federal law."
In 2011, President Barack Obama announced that the U.S. Department of Justice would no longer defend the constitutionality of the law. After that, House Speaker John Boehner convened the Bipartisan Legal Advisory Group to defend it.
Paul Clement, the Washington lawyer who argued before the U.S. Supreme Court this week on behalf of 26 states that oppose Obama's health care law, will argue on behalf of the bipartisan group in the DOMA case. Clement did not return a call seeking comment Friday.
In legal briefs filed in court, Clement argues that the challenges to the law appear to be based on the claim that Congress has no legitimate interest in providing a federal definition of marriage and has no choice but to adopt the state definition.
"Congress has multiple rational bases for preferring a uniform federal definition over a patchwork, so DOMA should survive unless there is something categorically different about marriage. There is not," Clement wrote.
"Congress has ample power to define the terms used in federal statutes to apportion federal benefits and burdens. Any other rule would turn the Supremacy Clause and our entire constitutional structure upside down."