They are gearing up for a challenge to the Federal Defense of Marriage Act. And if that law is struck down, gay marriage is de facto legalized nationwide, with every state required to recognize gay marriages performed in other states.

The Boston-based legal advocacy group that helped make gay marriage a fact of life in Massachusetts is girding for a fight to expand the rights of same-sex married couples.

For more than a year, Gay & Lesbian Advocates & Defenders has quietly surveyed the nearly 10,000 same-sex couples who have wed in Massachusetts to see whether they want federal benefits and equal tax treatment currently provided only to married heterosexuals.

GLAD also ran ads in two publications last month asking same-sex couples to contact the group if they want to be buried in Arlington National Cemetery as military veterans with their spouses or if they unsuccessfully sought to care for a sick spouse under the federal law that lets workers take unpaid medical leaves.

Carissa Cunningham, a spokeswoman for the group that won the landmark 2003 state Supreme Judicial Court case legalizing gay marriage, said GLAD is taking aim at the federal Defense of Marriage Act of 1996. The statute says no state need recognize gay marriages from another state and denies hundreds of federal benefits to same-sex spouses.

The problem is that if you get a federal court ruling striking down the federal DOMA, all the state constitutional amendments passed over the last several years will be irrelevant. A single ruling will overturn the repeated and forceful expression of the will of the American people on the issue. As I have been pointing out for a couple of years, the only way to deal with the issue of judicially-imposed gay marriage is for a federal marriage amendment to pass.

As I see it, there are two options available.

Option 1 would be a complete gay marriage ban, one that would not only stop a federal court from creating a right to gay marriage under the Constitution, but which would also undo in a single swoop the 2003 decision of the Massachusetts Supreme Court. Indeed, it could be argued that the effect of the amendment would be to dissolve the gay marriages that already exist.

Option 2 is less ambitious. It would, in effect, write the language of the federal DOMA into the Constitution. The impact would be to retain the current status quo, where no state can be forced to recognize gay marriage and no forbidden to do so. In effect, it would be the nothing more than a restatement of the principle of federalism.

The question is, of course, whether either such amendment would ever be permitted to make its way out of Congress and into the hands of the states, most of which would likely pass it.

Posted by: Greg at 11:56 AM | Comments (3) | Add Comment
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