Land of Loopholes: As Long as the Federal Defense of Marriage Act Reigns Supreme, Full Equality Is Denied to Gay and Lesbian Couples Joined in Domestic Partnerships, Civil Unions, and Even Marriage

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As defined by the Defense of Marriage Act, marriage is a "legal union between one man and one woman as husband and wife," and spouse refers "only to a person of the opposite sex who is a husband or a wife."

Passed by Congress in 1996 and signed into law by then-president Bill Clinton, DOMA's unambiguous definition of marriage denies same-sex couples--whether states recognize their relationships or not--more than 1,100 federal spousal benefits and obligations, including Social Security, federal civilian and military service benefits, and family and medical leave, according to the U.S. Government Accountability Office.

"[It] is federal discrimination, pure and simple," says Michele Granda, a staff attorney for Boston-based Gay and Lesbian Advocates and Defenders. "It treats married same-sex couples completely differently from married opposite-sex couples, even if they were married in the same state. It's unfair and punitive."

The Advocate takes a quick look at the rights DOMA denies gay and lesbian couples. At press time, the U.S. Supreme Court has refused to hear any cases challenging the law.


In October 2006 the U.S. Office of Personnel Management told Dean Hara that he was ineligible for his deceased husband's pension. His husband was former Massachusetts representative Gerry Studds, the first openly gay member of Congress, whom Hara had married in 2004.

"Even members of Congress convicted of crimes and their spouses are still eligible for the pension and health benefits for life," said Hara, a financial adviser in Boston, via e-mail.

The National Taxpayers Union estimated Studds's annual pension to be $114,337.


Corporations like FedEx, whose employee health plans are self-insured and federally regulated, often use creative legal maneuvers enabled by DOMA to bypass state law and deny benefits to spouses of gay employees. Under federal law, a state cannot require FedEx to provide equal benefits.

It's no surprise that on the Human Rights Campaign's 2006 Corporate Equality Index the company earned a score of 55, a below-average score, says Daryl Herrschaft, HRC Workplace Project director. …


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