Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples - NYTimes.com

Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples - NYTimes.com

By ABBY GOODNOUGH and KATIE ZEZIMA
Published: March 2, 2009

BOSTON — The legal advocacy group that successfully argued for sex-same marriage in Massachusetts intends to file suit here on Tuesday seeking some federal benefits for spouses in such marriages.

After Gerry E. Studds, the first openly gay member of Congress, died, his spouse was denied his pension.

The target is the Defense of Marriage Act, passed by Congress in 1996, which prohibits the federal government from recognizing same-sex marriage. That law denies federal benefits, like Social Security survivors’ payments, to spouses in such marriages.

Because same-sex marriage is allowed in only two states, Massachusetts and Connecticut, the number of spouses who are denied such benefits is fairly small. But Gay and Lesbian Advocates and Defenders, the group planning to file the federal suit, believes the number will grow as more states consider granting gay and lesbian couples the right to marry.

At least eight other states, including New York, are considering same-sex marriage bills.

“In our view, it’s a straightforward equal-protection issue,” said Mary L. Bonauto, civil rights project director for the group, referring to the constitutional mandate that laws be applied equally to everyone.

The suit, to be filed in Federal District Court in Boston, does not challenge a separate provision of the act that says states do not have to recognize same-sex marriages performed in other states. Information about the suit is posted on the advocacy group's web site.

While the Government Accountability Office has identified more than 1,100 federal statutory provisions in which marital status is a factor in rights and benefits, the suit focuses narrowly on equal protection as applied to Social Security, federal income tax, federal employees and retirees, and the issuance of passports.

“We picked programs every American can relate to,” Ms. Bonauto said.

The plaintiffs in the suit include eight couples and three widowers, all of whom were married in Massachusetts after the state began allowing same-sex marriages in 2004. All have applied for federal benefits, Ms. Bonauto said, but have been denied because the federal government does not recognize their marriages.

Some of the plaintiffs are federal employees who cannot share their health benefits with spouses; others cannot file taxes jointly or are receiving less generous Social Security retirement benefits.

The widowers include Dean Hara, the spouse of former Representative Gerry E. Studds. After Mr. Studds died in 2006, Mr. Hara, 51, was denied his Congressional pension and other benefits normally extended to surviving spouses of federal employees.

Another married couple, Melba Abreu and Beatrice Hernandez, estimate they would have saved about $20,000 in federal income tax over the past few years if they had been able to file jointly.

“In our case, the core of our American dream has always been for Melba and I to provide for one another,” said Ms. Hernandez, 47, of Boston. “This presents a real threat to that, when we take a good hard look at our future years.”

Another plaintiff, Herbert Burtis, 78, lost his spouse last year and would be entitled to about $700 a month in Social Security survivor benefits if his marriage had been heterosexual.

“Nobody else has to go through that begging to be considered equal to other married people,” said Mr. Burtis, who married in 2004 but was with his partner for more than 60 years

Although federal courts have heard other challenges to the Defense of Marriage Act, Ms. Bonauto said, this is the first in which plaintiffs who were married in their state of residence applied for federal benefits and were denied them.

Kris Mineau, president of the Massachusetts Family Institute, a group that has lobbied against same-sex marriage in Massachusetts, said he did not think one part of the federal act could be singled out and struck down.

Erwin Chemerinsky, a constitutional law scholar and dean of the law school at the University of California, Irvine, said that the case seemed strong but that victory was not certain.

“I think that under established equal protection law, they have strong claims,” Mr. Chemerinsky said. “But it does raise issues that courts haven’t dealt with before, so that makes it more difficult to predict what the courts will do.”

Mr. Burtis, who was among hundreds of gay, married residents of Massachusetts whom Gay and Lesbian Advocates and Defenders reached out to, said he did not expect to receive federal benefits in his javascript:void(0)lifetime.

“But at least I can be part of what I think would be a historic moment to help someone in a future generation get equality under the law,” he said.