Winning Equality After DOMA

Last month, in a landmark decision, the Supreme Court of the United States ruled that the Defense of Marriage Act (DOMA) was unconstitutional and struck down a major provision that had denied federal benefits to legally married same-sex couples.

Arent Fox’s Political Law group is proud to report that it was on the prevailing side in the Supreme Court’s DOMA and Proposition 8 decisions. An amicus brief signed by Political Law leader Craig Engle, and recent arguments before the Federal Election Commission (FEC) by Mr. Engle, support the Supreme Court’s decision that DOMA’s sweeping over-generalization of the definition of marriage causes unlawful discrimination, including the areas of election law, campaign finance, ethics rules, and the conduct of officeholders and federal employees.

There are several examples of the discriminatory application of DOMA in the political arena: The unequal treatment of joint-contributions by same-sex couples, unequal access to political events, differences in defining joint property between candidates and their spouses, and even gift rules, public disclosure rules, and conflict of interest statutes.

Earlier this week, the Political Law group returned to the FEC to ask that it reverse its recent decision in a case involving Arent Fox’s client, Dan Winslow, for US Senate, that denied equal joint contribution rights to same sex couple. In a unanimous decision, the agency approved an advisory opinion to adopt new rules implementing the Supreme Court’s recent DOMA decision.

The FEC’s legal staff had urged the agency to consider political contributions from same-sex married couples on equal terms with opposite-sex married couples. “I applaud the commission for doing the right thing and acting so quickly and clearly,” said Mr. Engle to the New York Daily News, adding that the Commission may be one of the first federal agencies “to clearly adopt the Supreme Court’s decision in DOMA.”

“Same-sex marriage is a fact and government reluctance to admit it is finally collapsing, as the Supreme Court recognized,” said litigation partner Hunter T. Carter. “As a marriage equality advocate, I am thrilled that we can point to the FEC and say that same-sex married couples have the rights and duties as other married couples.”

Brian Moulton, legal director of the Human Rights Campaign said, “We’re pleased to see yet another federal agency taking steps to ensure that the Windsor decision is fully implemented and lawfully-married same-sex couples are treated equally by the federal government across the board.”

In addition to election law, there are over 1,000 other statutes across at least 100 agencies and programs that will feel the effect of the Supreme Court’s decision.

Arent Fox has been advocating marriage equality since 2009, when Mr. Carter was co-author of the New York State Bar Association report endorsing unanimously marriage equality legislation in New York, which was approved unanimously by the House of Delegates. A team of Arent Fox lawyers, led by Mr. Carter, represents a leading Chilean human rights group and three same-sex couples in a case they have brought before the Inter-American human rights system. They allege that the Chilean government violated their human rights, protected by the American convention on human rights, when Chile’s highest courts refused to allow one couple to get married in Chile and refused to recognize the legal marriages of the other two couples performed in Canada and Argentina. The Arent Fox team representing the Chilean couples is preparing cases on behalf of couples from several other countries, in coordination with legal counsel from each countries, as part an Alliance for Marriage in the Americas.

As a result of bringing the case, Mr. Carter was invited to address members of Chile’s Senate and its government Human Rights Commission, and was also invited to address the full Colombian Senate, to explain our case that marriage equality is a protected human right. For more details, please click here.