Constitutional Law

DOMA violates equal protection with 'discriminatory burdens' on same-sex spouses, says ABA brief

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In an amicus brief (PDF) filed Friday, the American Bar Association asks the U.S. Supreme Court to consider the “unprecedented and discriminatory burdens” placed on legally married same-sex couples by Section 3 of the federal Defense of Marriage Act.

As an ABA press release sums up, the brief, which was filed in U.S. v. Windsor, et al., says the statute’s definition of marriage as involving only a man and a woman is inconsistent with the guarantee of equal protection under the Fifth Amendment of the U.S. Constitution.

From health care rights and retirement benefits to taxation and estate planning, the DOMA both treats same-sex married couples differently than opposite-sex married couples and creates a complex legal situation that makes it difficult for attorneys to help same-sex couples obtain the same or similar treatment and function smoothly as a family, the ABA says in the brief.

“Section 3 … not only withholds a wide array of federal rights and protections from married gay and lesbian couples, but it usually leaves them and their lawyers with few or no sound legal options for approximating those rights. The difficulties presented by Section 3 arise in a range of settings, from procuring affordable health care to achieving financial security and, for binational couples, to navigating the immigration system.”

Additional and Related Coverage:

ABA Journal: “District attorneys are declining to defend controversial state and federal laws” “Will Justices Opt for ‘Offramps’ in Same-Sex Marriage Cases? Standing Is One of the Issues” “US brief backs right to gay marriage in California in ‘eight-state solution’ stance”

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