GLAD Expands DOMA Challenge to Include State, Private Company Consequences of DOMA

Posted by Chris Geidner
November 9, 2010 11:25 AM |

As reported on Monday night by Metro Weekly, the Gay and Lesbian Advocates and Defenders filed a lawsuit today challenging the application of the Defense of Marriage Act's definition of marriage to several same-sex married couples and one widow in a federal lawsuit filed in Connecticut.

At first glance, the lawsuit looks similar to the Gill v. Office of Personnel Management lawsuit that resulted in a successful trial court ruling in July.

The lawsuit expands upon Gill, though, in a particularly significant way -- reaching to state and private corporation discriminatory treatment resulting from DOMA.

In Gill, only federal programs and federal government-provided benefits were questioned -- from Social Security to passports to taxes. In today's lawsuit, Pedersen v. Office of Personnel Management, state and private entities' actions are brought into the lawsuit.

geller-marquis.jpgThe actions are challenged not because of discretionary decisions made by the state or private entities, but instead because of those programs' adherence to federal laws and regulations. An example comes from Count IV of the complaint, Janet Geller and Joanne Marquis v. Timothy F. Geithner and Douglas H. Shulman:

Under existing [Internal Revenue Code] statutes and regulations as well as New Hampshire state law, Jo would receive a medical subsidy spousal benefit from the [New Hampshire Retirement System] to help pay for her legal spouse Jan’s private health insurance premiums, but for DOMA, 1 U.S.C. § 7, which prohibits the NHRS as a tax-qualified plan from providing the benefit to an otherwise qualified retiree’s spouse if that spouse is of the same sex.

With regards to private companies, GLAD's lawsuit details the actions taken by Bayer Corporation against Gerald V. Passaro II, the widower of Thomas M. Buckholz. Buckholz had been an employee of Bayer for more than 20 years. From the lawsuit:

Under the terms of the Bayer [Corporation Pension] Plan, and in compliance with applicable federal law, where a Participant, like Thomas Buckholz, who has vested and has a nonforfeitable right to benefits under the Bayer Plan, dies prior to his annuity start date, the Participant's surviving spouse shall be paid a Preretirement Survivor Annuity.  (Bayer Plan, §5.6(a)).

As a result of the application of DOMA, 1 U.S.C. § 7, through ERISA and the Internal Revenue Code, Jerry has been denied the vested qualified preretirement survivor annuity (QPSA) available to all spouses of vested participants in defined benefit pension plans in the equivalent situation as Jerry finds himself today even though he is legally Tom's surviving spouse under Connecticut law.

This expansion of the lawsuit to cover the actions taken by state and private actors as a result of DOMA -- though extremely significant -- is just one of the two primary differences between today's filing and Gill.

The other, more obvious distinction is that the Connecticut filing of the case means that an appeal from this case would go to the U.S. Court of Appeals for the Second Circuit, which includes New York. Gill, coming from Massachusetts, is being appealed to the First Circuit. Those two circuits encompass all of the jurisdictions except Iowa and the District of Columbia that currently have marriage equality.

Read the complaint: 2010-11-09-pedersen-complaint.pdf

[UPDATE @ 12:25 PM: In order to avoid any confusion, it's important to note that when GLAD filed Gill, Massachuestts Attorney General Martha Coakley followed up by filing Massachusetts v. United States. It was that case -- not Gill -- that implicated the Tenth Amendment and the Spending Clause. GLAD's case in Gill -- like their case here -- is based on, as Judge Tauro wrote in Gill, DOMA's alleged "violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment."

(The Fourteenth Amendment provides for equal protection of the laws against state action, but the Fifth Amendment's due process clause has been interpreted by the U.S. Supreme Court as requiring the federal government to provide equal protection of the laws.)]

[Photo of Janet Geller and Joanne Marquis provided by GLAD. GLAD's video -- featuring GLAD's Mary Bonauto -- about the case can be found below.]

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