Justice Department won’t oppose DOMA challenge by state couples

A lawsuit filed in Connecticut is central to the Obama administration’s surprise decision Wednesday to end its defense of a federal law that denies a range of benefits to same-sex couples by defining marriage as being between a man and woman.

Attorney General Eric Holder announced that the Department of Justice will not defend against a challenge of the Defense of Marriage Act filed last fall in Connecticut on behalf of several plaintiffs, including Joanne Pedersen and Ann Meitzen of Waterford.

In a letter to House Speaker John Boehner of Ohio, Holder said recently filed lawsuits in Connecticut and New York have caused President Obama and the Justice Department, which had been defending DOMA, “to conduct a new examination.”

Pedersen is the named plaintiff in the Connecticut case.

“My reaction as I am reading this, I am sort of flabbergasted and actually very delighted,” said Meitzen, reached by phone as she was reading about Holder’s decision. “It’s fabulous, just fabulous. I had literally no idea.”

“I was a little shocked and amazed that it happened this way,” Pedersen said. “I just have my fingers crossed that it goes through and everybody agrees.”

That is unlikely.

Lee Swislow, the executive director of GLAD, the Gay & Lesbian Advocates & Defenders, which filed the suit on the couple’s behalf, said Holder’s decision is a significant boost, but the litigation is almost certain to continue.

Either branch of Congress can elect to defend the law, which was passed in 1996 and denies to married same-sex couples many pension and federal health benefits available to married men and women.

“We expect at least one of those chambers will,” she said.

The Republican-controlled House is seen as the more likely chamber to come to the defense of DOMA. Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee, called Holder’s action “a transparent attempt to shirk the [Justice] Department’s duty to defend the laws passed by Congress.”

Sen. Richard Blumenthal, D-Conn., a member of the Senate Judiciary Committee, applauded the decision.

“This decision is not only legally correct, but will also add momentum to efforts in Congress to repeal this unfair and discriminatory law,” Blumenthal said.

Swislow said Holder’s decision reflects a conclusion by Justice Department lawyers that elements of the law denhying same-sex couples federal benefits are unconstitutional when measured against a more rigorous standard of proof than previously employed by the government.

Previous cases involving DOMA were brought in jurisdictions with binding U.S. Circuit Court of Appeals precedents stating that laws “singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment,” Holder wrote in his letter.

With no binding precedents in the 2nd Circuit, which includes Connecticut and New York, the law must meet a  “heightened scrutiny” test, which is more rigorous than “a rational basis,” Swislow said.”So the burden of proof shifts from us to them,” she said.

“In these cases,” Holder wrote of the Connecticut and New York lawsuits, “the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.”

“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder wrote.

When subjected to that standard, the law is unconstitutional, Holder wrote. Swislow said the administration effectively is saying the the burden is now heavier for those who wish to defend the law as constitutional.

“Their agreement with that principle is not determinative,” Swislow said. “But it is a very powerful statement by some very well-respected and smart attorneys, so we think that’s incredibly helpful to our case.”

Swislow said she expects the question will be resolved by U.S. Supreme Court.

Pedersen and Meitzen became plaintiffs after Pedersen filled out an online survey.

“GLAD was doing a survey asking how does DOMA affect you? I explained how it affects me,” Pedersen said.

Pedersen is retired after a 30-year career as a civilian employee of the U.S. Navy. But Meitzen, whom she married soon after gay marriage was legalized in 2008, continues to work, despite a chronic lung condition.

“When she retires, she loses her medical benefits,” Pedersen said. If Pedersen was married to a man, her husband would be covered by her federal health benefits, but DOMA bars Meitzen from spousal coverage.

“We got married as soon as we could under the law, yet the federal government still treats us like second-class citizens,” Pedersen said.

Pedersen and Meitzen had a commitment ceremony in 2004, inviting 120 people to a party in their backyard. They further formalized the relationship in 2007, getting recognized in a civil union.

In 2008, once same-sex marriage was legalized by a Connecticut Supreme Court decision, they got married in their living room in front of a dozen witnesses.

Unless DOMA is repealed or struck down, their marriage is the same as their civil union – unrecognized by the federal government.

“The federal government still unmarries you,” Swislow said.