Keith Toney got a new passport last summer. Usually, no big deal. But Keith had to join a federal court lawsuit before the State Department agreed to issue a passport in his legal name.
The problem? Keith took the surname of his longtime partner Al Toney after they were married in Massachusetts in March 2004. Keith had no problems changing his driver’s license, credit cards, and so forth. But when he tried to renew his passport in 2005, the State Department told him that the Defense of Marriage Act (DOMA) which prohibits any federal recognition of same-sex marriages prevented it from issuing a passport in his legally recognized marital name.
Over the next four years, Keith managed as best he could when he and Al traveled to Costa Rica, where they own property. He got used to carrying his marriage license and a news article with him to help explain sometimes across the Spanish-English language barrier why his passport bore a different name from the rest of his identification. But he never got used to the fact that the government was forcing him to carry a document that no longer represented his real identity. “It was an insult,” he recalls today.
To put their anger to good use, Keith and Al signed on to the legal attack on DOMA that was tried earlier this month (May 6) before a federal judge in Boston. Along with other same-sex couples all legally married in Massachusetts, the Toneys argued that the federal government is violating the Constitution’s Equal Protection Clause by denying them the same privileges and benefits that it extends to other legally married couples in the Bay State and everywhere else in the country.
The State Department finally relented last year by agreeing to accept Keith’s marriage license as evidence of a change of name one of several gay-friendly actions taken under Secretary of State Hillary Rodham Clinton. After five years, the department even waived the usual name-change fee and delivered the new passport within two days of a specially arranged interview.
The other plaintiffs in the case, Gill v. Office of Personnel Management, are not so lucky. Their complaints about the second-class status of their marriages are unanswered, at least, not yet. But attorneys for Gay and Lesbian Advocates and Defenders (GLAD), the Boston-based legal center that filed the suit, were professing cautious optimism after the 90-minute hearing before Senior U.S. District Court Judge Joseph Tauro.
For his part, Justice Department attorney Scott Simpson was in the awkward position of defending a law that the Obama administration says it wants to repeal. “This presidential administration disagrees with DOMA as a matter of policy,” Simpson said, according to news accounts of the hearing. “But that does not affect its constitutionality.”
As with Keith Toney’s problem, the stakes in the case for the 17 remaining plaintiffs _ seven couples and three men whose husbands died _ sound more like the product of bureaucratic snafus than the stuff of constitutional litigation. Lead plaintiff Nancy Gill has worked for the U.S. Postal Service for more than 20 years, but cannot provide the same benefits to her spouse, Marcelle Letourneau, that other married workers provide to theirs. Other couples cannot file joint federal income tax returns. The three “widowers” including Dean Hara, husband of the late congressman, Gerry Studds have been denied Social Security survivor benefits.
Congress passed DOMA in 1996 in an effort to thwart any progress toward gay marriage in the states. The House committee report on the bill said its purpose was to “express moral disapproval of homosexuality.” One section provides that no state is obliged to recognize same-sex marriages recognized in another state. The Massachusetts plaintiffs are challenging a second provision that defines marriage for federal law purposes as between one man and one woman.
In defending the law today, the Obama administration has expressly disavowed many of the lawmakers’ motives behind its enactment. Whatever the political reasons, the concession may also be sound legal strategy. The Supreme Court’s 1996 decision striking down an anti-gay initiative in Colorado, Romer v. Evans, held that anti-gay animus cannot be used to justify a law, even under the most relaxed constitutional scrutiny.
Instead, the government now argues the law preserves the status quo while states debate marriage rights for gays and lesbians. In court, GLAD attorney Mary Bonauto answered that the law actually “upended” the status quo by superseding the states’ traditional prerogative to define marriage.
Tauro encouraged the plaintiffs’ side by vigorously challenging Simpson on the point. “When did it become a federal matter the definition of marriage?” Tauro asked. Massachusetts will be making a similar federalism-style argument later this month (May 26) in its separate legal action to strike down the law.
Tauro gave no indication when he will rule, but the Toneys who watched the hearing along with the other plaintiffs from the jury box in Tauro’s courtroom were optimistic afterward. “The judge was very respectful,” said Keith “We personally feel it went very well.”
“We’re hopeful people anyway,” Al added. “It would be kind of sad to go through life not being hopeful. The other way is pretty grim.”