If gay marriage is recognized by the Commonwealth; the federal government must comply?

Breaking News:

Mary Ritchie, a Massachusetts State Police trooper, has been married for almost five years and has two children. But when she files her federal income tax return, she's not allowed to check the "married filing jointly" box.

That's because Ritchie and her spouse, Kathleen Bush, are a gay couple, and the federal Defense of Marriage Act makes them ineligible to file joint tax returns.

Now Ritchie, Bush and more than a dozen others are suing the federal government, claiming the act discriminates against gay couples and is unconstitutional because it denies them access to federal benefits that other married couples receive, such as pensions and health insurance. Plaintiffs also include Dean Hara, the widower of former U.S. Rep. Gerry Studds, the first openly gay member of the House of Representatives.

The lawsuit was being filed Tuesday in federal court in Boston by Gay & Lesbian Advocates & Defenders, the anti-discrimination group that brought a successful legal challenge leading to Massachusetts becoming the first state in the nation to legalize gay marriage in 2004.

Only Massachusetts and Connecticut allow gay marriage. Vermont, Connecticut, New Jersey and New Hampshire allow civil unions.

The Defense of Marriage Act, or DOMA, was enacted by Congress in 1996 when it appeared Hawaii would soon legalize same-sex marriage and opponents worried that other states would be forced to recognize such marriages. The new lawsuit challenges only the portion of the law that prevents the federal government from affording Social Security and other benefits to same-sex couples.

Mary Bonauto, GLAD's Civil Rights Project director, said the lawsuit is the first major challenge to the section of the law that denies same-sex couples access to more than 1,000 federal programs and legal protections in which marriage is a factor.

All the plaintiffs are from Massachusetts and have marriages that are recognized by the Commonwealth. They include a U.S. Postal Service employee who wasn't allowed to add her spouse to her health insurance plan; a Social Security Administration retiree who was denied health insurance for his spouse; three widowers who were denied death benefits for funeral expenses; and a man who has been denied a passport bearing his married name.

A little more background: The legal issues surrounding same-sex marriage in the United States are complicated by the nation's federal system of government. Traditionally, the federal government did not attempt to establish its own definition of marriage; any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more other states (as was the case with interracial marriage before 1967 due to anti-miscegenation laws). With the passage of the Defense of Marriage Act in 1996, however, a marriage was explicitly defined as a union of one man and one woman for the purposes of federal law. (See 1 U.S.C. § 7.) Thus, no act or agency of the federal government currently recognizes same-sex marriage.

According to the federal government's Government Accountability Office (GAO), more than 1,138 rights and protections are conferred to U.S. citizens upon marriage by the federal government; areas affected include Social Security benefits, veterans' benefits, health insurance, Medicaid, hospital visitation, estate taxes, retirement savings, pensions, family leave, and immigration law.

However, many aspects of marriage law affecting the day to day lives of inhabitants of the United States are determined by the states, not the federal government, and the Defense of Marriage Act does not prevent individual states from defining marriage as they see fit; indeed, most legal scholars believe that the federal government cannot impose a definition of marriage onto the laws of the various states by statute.