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Attorneys Theodore Olson (left) and David Bois are seeking to overturn Prop 8. (Photo by Damian Dovarganes/AP)
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Editors’ note: This is the first of a two-part series surveying various LGBT-related lawsuits filed around the country.
LGBT Americans could be affected by pending litigation throughout the country that touches on issues such as marriage rights. Here are some cases of interest.
Massachusetts v. U.S. Health & Human Services Dept.
The Massachusetts attorney general is arguing that part of the Defense of Marriage Act is unconstitutional because it interferes with the state’s authority to define the marital status of its residents. The federal lawsuit was filed last week in the U.S. District Court for the District of Massachusetts, and the federal government is slated to respond within 60 days.
Gill v. Office of Personnel Management
Gay & Lesbian Advocates & Defenders argue that the part of the Defense of Marriage Act prohibiting federal recognition of same-sex marriage is unconstitutional because it violates the equal protection clause. The federal lawsuit is pending before the U.S. District Court for the District of Massachusetts and the U.S. Justice Department is expected to issue a reply brief in September.
Smelt v. United States
Attorneys argue that the Defense of Marriage Act and Proposition 8 are unconstitutional because, among other reasons, they interfere with the ability of married gay couples to travel and establish residency in other states. The federal lawsuit produced last month’s controversial Justice Department motion to protect DOMA and is pending before the U.S. District Court in the Central District of California, Southern Division.
Perry v. Schwarzenegger
Lawyers for the American Foundation for Equal Rights argue that Proposition 8 is unconstitutional because it violates the equal protection clause and singles out LGBT people for discrimination.
The federal lawsuit is pending before the U.S. District Court in the Northern District of California.
Bonilla v. Hurst
Plaintiffs argue that Louisiana’s constitutional ban on same-sex marriage and civil unions violates equal protection and due process clauses. The federal lawsuit is pending before the U.S. District Court in the Eastern District of Louisiana.
McConkey v. Van Hollen
The plaintiff is contesting Wisconsin’s constitutional ban on same-sex marriage and civil unions by arguing that it violates the state’s two-subject rule, which prohibits proposed constitutional amendments from dealing with more than one more subject. The Wisconsin Supreme Court has agreed to hear the state lawsuit and a decision regarding arguments is expected this fall.
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HOME > NEWS > NATIONAL NEWS
By: Chris Johnson COMMENTS
 
A raft of court cases pending throughout the country could advance marriage rights and other priorities for LGBT Americans.
One case filed last week seeks to overturn part of the Defense of Marriage Act that prohibits the federal government from recognizing same-sex marriage. Massachusetts Attorney General Martha Coakley filed the federal lawsuit, known as Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.
Representing one of six states with same-sex marriage on the books, Coakley says that DOMA unfairly excludes more than 16,000 married same-sex couples in Massachusetts from the federal benefits of marriage. She says that DOMA also interferes with the state’s right to define and regulate the marital status of its residents and that Congress doesn’t have a valid reason for treating married gay couples differently from straight couples.
The case is pending before a U.S. District Court in Massachusetts. Amie Breton, a Coakley spokesperson, said the U.S. Justice Depart-ment has 60 days to respond after the attorney general serves the federal government with the lawsuit, but the court could grant federal officials more time.
Massachusetts public officials have praised the lawsuit. Gay Rep. Barney Frank (D-Mass.) said in a statement that Coakley’s decision “deserves the support and gratitude of all of the state’s residents.”
“I will be particularly interested to see how conservative defenders of states’ rights rebut Attorney General Coakley’s cogent argument of our rights as a state to defend marriage, which has been cast aside by this law that she has challenged,” he said.
Sen. John Kerry (D-Mass.) also said in a statement that he “wholeheartedly” supports Coakley’s efforts to overturn DOMA. Kerry was among the senators who voted against DOMA when it came before the Senate in 1996.
“Denying same-sex couples the same rights and protections under the law as enjoyed by opposite sex couples has absolutely nothing to do with defending marriage,” he said.
But the Coakley lawsuit is not the only case challenging DOMA. In March, Gay & Lesbian Advocates & Defenders filed a federal lawsuit against the section of DOMA that prohibits federal recognition of same-sex marriage, arguing that the statute violates the equal protection clause in the U.S. Constitution.
The case, filed on behalf of eight plaintiff couples and three widows, is known as Gill v. Office of Personnel Management.
Janson Wu, a GLAD staff attorney, said his organization is “very confident” about its prospects in the case because the complaint “is based upon very traditional and well established principles of equal protection under the Constitution.”
The case also is pending before a U.S. District Court in Massachusetts. GLAD is seeking to amend its complaint by the end of this month for technical reasons, and the U.S. Justice Department is expected respond to the lawsuit Sept. 18.
Although the organization has its own case, GLAD is “incredibly excited” that Coakley filed a lawsuit regarding DOMA, Wu said. He said both lawsuits have been filed as related cases before the same judge.
“[Massachusetts is] in a much more unique position to be able to bring these arguments that it is clearly in the state’s right, historically and under our Constitution, to determine who can and cannot marry,” Wu said. “And the federal government cannot just swoop in and undo those marriages that Massachusetts has already deemed valid.”
Whatever the decision of the district court, Wu said he’s expecting the U.S. Supreme Court to take up the lawsuit. He noted that he expects the justices to hear the case around 2013.
One legal expert said the lawsuits from GLAD and Coakley could be successful because they seek to overturn only part of DOMA as opposed to the entire law.
Doug NeJaime, a gay professor at Loyola Law School Los Angeles, said the cases “present a relatively limited question about DOMA’s operation.”
“By challenging only one part of DOMA … these cases present compelling arguments about equal protection and federalism and have a substantial chance of prevailing,” he said.
Nan Hunter, a lesbian law professor at Georgetown University, said the two challenges are among the most important pending LGBT-related lawsuits because, in addition to challenging DOMA through litigation, they can influence how lawmakers and President Obama will address the law.
“They have the potential to alter not only the particular areas of law that they directly affect, but also to influence broader political dynamics in LGBT rights, especially in Congress and in the Obama administration,” she said.
Yet another federal lawsuit seeking to overturn DOMA is Smelt v. United States. In addition to seeking to invalidate DOMA, the lawsuit also challenges the constitutionality of Proposition 8, which ended same-sex marriage in ...
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