Sullivan & Worcester LLP Assists GLAD in Filing Lawsuit to Challenge Denial of Critical Federal Benefits to Married Same-Sex Couples

 

Married Same-Sex Couples Denied Critical Protections in the 1,138 Federal Laws in Which Marital Status is a Factor

S&W Press Release
March 4, 2009

Boston, MA – March 4, 2009 – Sullivan & Worcester LLP is acting as tax counsel for Gay & Lesbian Advocates & Defenders (GLAD) in its filing of the first concerted, multi-plaintiff legal challenge to Section 3 of the federal Defense of Marriage Act (DOMA).

Gill et al. v. Office of Personnel Management targets the denial of certain federal rights and protections to married same-sex couples in Massachusetts.  GLAD lawsuits brought marriage equality to Massachusetts (2004) and Connecticut (2008), the only states where same-sex couples can currently legally marry. This suit, filed today in federal District Court in Boston, addresses the use of  DOMA Section 3 to deny spousal protections in Social Security, federal income tax, federal employees’ and retirees’ benefits, and in the issuance of passports. 

“It’s time for the federal government to end its blatant double standard of providing rights and protections to all married couples except gay and lesbian married couples,” said Mary L. Bonauto, Civil Rights Project Director for GLAD. “Same-sex married couples have taken on the commitment of marriage, play by the rules, and pay into the system. But they are denied critical federal legal protections that form a safety net to support other married couples and their children.” 

Passed in 1996, DOMA Section 3, now codified at 1 U.S.C. section 7, limits the marriages the federal government will respect to those of a man and a woman. Section 2 of DOMA, not at issue in this lawsuit, allows states to establish public policies about what marriages they will and will not respect.

GLAD argues that DOMA Section 3 violates the federal constitutional guarantee of equal protection as applied to federal income tax, Social Security, federal employees and retirees, and in the issuance of passports. GLAD also contends that DOMA Section 3 is an unprecedented intrusion by the federal government into marriage law, always considered the province of the states.

Sullivan & Worcester’s David J. Nagle and Richard L. Jones have been acting as lead tax counsel on a pro-bono basis to GLAD for the last several years and also serve as special tax counsel to two of the same-sex married couples included in GLAD’s complaint.

“DOMA presents important questions of federalism, as well as a variety of unintended tax-planning opportunities for same-sex married couples,” said David Nagle, partner in Sullivan & Worcester’s Tax Department. “The core complaint, however, is for equal rights and responsibilities among couples married under state law. Our plaintiffs are not looking for special treatment they're looking for equal treatment with their married co-workers who also support stay-at-home spouses, with other married parents who devote their lives to their children, and with other married couples whose loving relationships have spanned their lifetimes.”

“DOMA deliberately requires the federal government to discriminate against same-sex married couples, while recognizing every other valid state law marriage," added Richard Jones, associate in Sullivan & Worcester’s Tax Department. “Under DOMA, same-sex couples lawfully married in Massachusetts are deprived of numerous federal rights and benefits available to other married persons in Massachusetts, such as Social Security benefits available on the death of a spouse, federal employee spousal health benefits or the ability to file a joint federal income tax return.

The plaintiffs are eight married couples and three widowers, each of whom is currently eligible for a federal program. Each has applied for a benefit under that program and been denied because of DOMA Section 3.

“After decades together, we were thrilled to be able to marry,” said Nancy Gill, a postal worker married to Marcelle Letourneau. “But we were shocked when I applied to put Marcelle on my family health plan, and we were rejected. My employer, the federal government, doesn’t protect my family the same way it does my co-workers’ families. That’s not right.”

Dean Hara, the surviving spouse of late Congressman Gerry Studds, said “Gerry and I spent 16 wonderful years together and I miss him. The federal government’s denial to me of Gerry’s pension and health insurance added insult to injury at the worst time of my life. These systems are set-up to help married people with the sudden loss of their partner, but instead of helping me, it hurt me.”

The plaintiffs represented in the case are:

Nancy Gill (51) and Marcelle Letourneau (47) of Bridgewater:  Nancy has been a postal worker for more than 21 years, but as a federal employee she is unable to provide for Marcelle the health benefits that her co-workers' spouses readily receive. Nancy and Marcelle have two children.

Dean Hara (51) of  Boston:  The spouse of  former Congressman Gerry Studds who died suddenly in 2006, Dean is denied Gerry’s congressional pension, health insurance and the other protections available to surviving spouses of federal employees. Studds was a public servant for 27 years, 24 of those in Congress.

Melba Abreu (53) and Beatrice Hernandez (47) of Boston:  Both daughters of Cuban immigrants, they are unable to file taxes jointly and lose thousands of dollars each year. Because of that inequity, their dream of owning their own home is just that – still a dream.

Mary Ritchie (48) and Kathy Bush (49) of Framingham:  Mary and Kathy are mothers of two school-age boys. Mary, a state trooper, and Kathy, a stay-at-home mom, have a harder time making ends meet because they cannot jointly file federal taxes. Additionally, Kathy would not be eligible for the full line-of-duty benefit for surviving spouses should Mary die in the line of duty.

Herbert Burtis (78) of SandisfieldHerb, a 78-year-old musician and teacher, lost his spouse after 60 years together, including the last 13 when John battled Parkinson’s disease. Herb’s already limited income is severely reduced because he is denied the $700 month that would come with Social Security survivor benefits. 

Dorene (43) and Mary (48) Bowe-Shulman of Acton:  Dorene and Mary are raising two children and trying to save for their future. Mary, a lawyer, covers Dorene, an acupuncturist, on her health insurance but they pay taxes on the plan because the federal government doesn’t recognize their marriage. They also lose thousands each year because they can’t jointly file taxes.

Randell Lewis-Kendell (52) of Harwichport:  Randy lost Rob, his spouse and partner of 30 years, to cancer in 2007. A shopkeeper on Cape Cod, Randy struggled to pay for Rob’s funeral expenses because the federal government denied him the $255 benefit it provides all other bereaved spouses. When Randy turns 60, he will not be eligible for Rob’s higher Social Security benefit.

Martin (Al) Koski (66) and Jim Fitzgerald (57) of Bourne:  Al and Jim have been together for 33 years. Al has retired after working for Social Security for 22 years but unlike his fellow workers he’s unable to provide Jim with health coverage or access to his pension. Jim has severe asthma and they both worry about his health and their security in their old age.

Bette Jo Green (66) and Jo Ann Whitehead (67) of Jamaica Plain:  Bette Jo is a retired labor and delivery nurse, and Jo Anne is a semi-retired gardening educator. Their retirement income is smaller than it should be because even though they paid into Social Security throughout their lives, they aren't eligible for the standard spousal Social Security formula that results in higher payments to the lower earning spouse. 

Marlin Nabors (31) and Jonathan Knight (28) of Hyde Park:  Young marrieds and Mid-Western transplants to Boston, Marlin and Jonathan have just bought their first house together and talk about having children. Unable to jointly file taxes, they have lost thousands of dollars. Yet they would happily pay more in taxes if they knew their marriage was respected by the federal government.

Keith (37) and Al Toney (42) of Worcester:  The couple raised Al’s now college-age daughter, and have been foster parents for several children. After choosing the family name “Toney” upon getting married, Keith has been unable to obtain a passport in his correct name because of DOMA, which makes him and the couple vulnerable when they travel in a security-conscious, post-9/11 world. 

More than 10,000 couples residing in Massachusetts have married since 2004, and not one has received a single federal benefit or protection available to all other married couples. As soon as couples started marrying, GLAD started hearing from couples who have been harmed and whose children have been harmed because of DOMA.

While GLAD’s case focuses on certain federal programs, DOMA Section 3 cuts across virtually every area of federal law. Married same-sex couples cannot, for example, take family and medical leave to care for a seriously ill spouse; access the many family benefits associated with military service; or sponsor a foreign spouse to reside in this country.

About GLAD

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization devoted to ending discrimination based on sexual orientation, HIV status, and gender identity and expression. 

About Sullivan & Worcester LLP

Sullivan & Worcester LLP is a leading corporate law firm providing counsel to domestic and international clients ranging from Fortune 500 companies to emerging businesses. With more than 185 lawyers in Boston, New York and Washington, D.C., the firm offers services in a wide range of areas, including corporate finance, securities, litigation, mergers and acquisitions, tax, real estate, private equity and venture capital, bankruptcy, climate change, regulatory law, and employment and benefits. Sullivan & Worcester is also recognized for its representation of REITs and its deep expertise in mutual fund law. For more information please visit www.sandw.com.

Contact:
Leah Schloss
617.338.2448 
lschloss@sandw.com  

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EDITORS NOTES:  Full information about Gill et al. v. OPM  including plaintiff bios and photos, video of an interview with Mary Bonauto, slideshows, and the text of the complaint is available at www.glad.org/DOMA. To interview plaintiffs or attorneys, please contact Carisa Cunningham or Alison Cashin at (617) 426-1350, or ccunningham@glad.org, or acashin@glad.org.