By Jack Minor
In a remarkable courtroom revelation, a group pushing for repeal of the federal Defense of Marriage Act stated that the Internal Revenue Service recently changed its policies and is functioning as if the law preserving traditional matrimony does not exist.
Peter Breen, executive director and legal counsel with the Thomas More Society, was in court alongside a lawyer from the House of Representatives to argue that DOMA prohibits recognition of same-sex marriages performed in other countries.
Congress was forced to defend DOMA after Barack Obama’s Justice Department announced last year it would refuse to carry out its responsibility to defend the law.
Breen said that while the judge seemed open to his arguments, during the day’s testimonies a “gay” advocacy group made a “unique revelation.”
The Human Rights Campaign, which lobbies for the LGBT community, admitted it has been pressing the IRS to ease the restrictions of federal law on various retirement plans that put spouses in a privileged position.
“According to the HRC they have successfully secured numerous retirement plans that do not put spouses in a privileged position. This is something that undermines the meaning of marriage and the special place it has in our culture,” Breen said.
“Even the IRS under Obama appears to have begun adopting the administration’s position that DOMA is not constitutional and no longer binding on the IRS,” Breen said. “That was quite a unique revelation that caught us all by surprise.”
The case involves Jennifer Tobit, the lesbian partner of deceased attorney Sarah Farley, who is arguing that she is entitled to her “spouse’s” profit-sharing plan because they were “married” in Canada. Following Farley’s death, her parents applied to collect her pension plan benefits, which are estimated to be around $41,000.
Tobit is being represented by the National Center for Lesbian Rights, which says that the case is unique because it is the first one involving the application of DOMA to a private company.
U.S. District Court Judge Darnell Jones was asked to decide whether DOMA applies to private companies and, if it does, to determine its constitutionality.
While the Obama administration previously had stated it would no longer defend DOMA in court, it has gone far beyond that and advocated for its repeal in multiple court filings.
“This court should hold that Section 3 of DOMA unconstitutionally discriminates,” the DOJ said in its brief in the Tobit case. “Section 3 treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition and significant federal benefits otherwise available to married persons.”
Breen said while it was not inappropriate for the government to appear in court in the case, since the judge had asked for arguments concerning DOMA’s constitutionality, it was unique to have the federal government express its opposition to a valid and defensible federal law, especially in a case involving a contract between two private parties.
The Tobit case marks the seventh time that the Obama administration has actively argued for DOMA’s repeal, asserting that courts should use the heightened scrutiny standard in deciding the constitutionality of the law.
In a similar case in California, the Obama administration argued that any decision regarding the law should be subject to “heightened scrutiny,” meaning the government must show that DOMA is substantially related to an important government function.
In the California case, DOJ lawyers acknowledged that “the Supreme Court has yet to rule on the appropriate level of heightened scrutiny for classifications based on sexual orientation.”
They also admitted there are several court precedents for applying the normal standard to issues involving sexual orientation but that the decisions are “flawed” and “incorrect.”
“Every single appellate court that has looked at this has said DOMA is constitutional. This administration is taking a radical position that is a departure from settled law and it is totally inappropriate,” Breen said.
