DOMA case could go to US Supreme Court

April 1, 8:38 PMInternational LGBT Issues ExaminerKelvin Lynch

Previous Next

Comment Print Email RSS Subscribe

Subscribe

Get alerts when there is a new article from the International LGBT Issues Examiner. Read Examiner.com's terms of use.

Email Address   Include other special offers from Examiner.com Terms of Use

  Harvard Law professor Laurence Tribe

The Massachusetts case pending in federal court challenging the Defense of Marriage Act (DOMA) could make its way to the US Supreme Court, according to esteemed Harvard constitutional law professor Laurence Tribe.

The suit, which was filed March 3rd by Gay & Lesbian Advocates and Defenders (GLAD) on behalf of 8 same-sex couples, challlenges the interpretation by the federal government that DOMA makes gay spouses ineligible for federal health care, retirement and other marital benefits.

The US Supreme Court has said in the past that marriage is a states rights matter, but according to Tribe, this case is not about the right of same-sex couples to marry.  Instead, it focuses on the much more narrow issue of whether gay couples married under state law can be denied the same federal benefits as other married couples based solely on the fact that they are of the same gender.  Tribe calls the case "a very surgical attack on DOMA."

Tribe told Wicked Local Bridgewater that the case is a strong candidate for review by the US Supreme Court for two reasons -- (1)  the Court has long held that the equality principles of the 5th and 14th Amendments apply to the states, and (2)  DOMA is an unprecedented break from the Court's view that marriage is a state matter.  He also said the fact that Congress defers to the states to determine who is eligible to marry makes the discrimination imposed by DOMA  "particularly invidious and hard to defend."

Tribe said the case offers the Court a middle ground between the extremes of affirming a right to gay marriage that states may not violate, on the one hand, and denying equal treatment for gay couples lawfully married in states that have legalized gay marriage, on the other. 

“The court could conclude denial of equal treatment is unjustified, even if the same court is unprepared to affirm a right of same-sex couples to marry," he said.