9 cases (filed jointly) currently before the US District Court / MA, re: rights to marriage benefits

This was filed in March of this year. ~ pinto

http://www.freedomtomarry.org/rights/docs/US%20-%20Gill%20v%20OPM%20(complaint).pdf

Introduction/Nature of the Action

1. This is a case about federal discrimination against gay and lesbian individuals married to someone of the same sex, and the harm that discrimination has caused each plaintiff.

2. Plaintiffs in this action are citizens of the Commonwealth of Massachusetts and the United States of America. Each of the plaintiffs is, or was until becoming a widower, legally married to a person of the same sex in accordance with the requirements of Massachusetts state law.

3. Although the federal government does not license marriages, a large number of its programs take marital status into account in determining eligibility for federal protections, benefits and responsibilities. Statute, precedent, and practice establish state law as the touchstone for determining a couple’s marital status for purposes of determining eligibility for federal programs.

4. Each plaintiff, or his or her spouse, has made one or more requests to the appropriate agencies or authorities within the federal government for treatment as a married couple, a spouse, or a widower with respect to particular programs or benefits. Yet each of the plaintiffs has been denied and is still being denied legal protections and benefits under federal law that are available to a similarly situated person married to an individual of a different sex under Massachusetts law.

5. With each denial of specific protections or benefits, the defendants or their agents have invoked the “Defense of Marriage Act,” P.L. 104-199, codified in part as 1 U.S.C. § 7 (“DOMA, 1 U.S.C. § 7”) and have stated that the federal government will only respect marriages between a man and a woman.

6. Several of the plaintiffs, as set forth below, seek spousal protections based on their employment with, or their spouse’s employment with, the United States government. Plaintiff Nancy Gill, a 21-year employee of the United States Post Office, already receives “Self and Family” health insurance coverage for herself and the two children she has with her spouse, plaintiff Marcelle Letourneau, through her job at the Post Office. Yet, unlike postal workers married to spouses of the opposite sex (see below at Paragraphs 59-97), she is unable to add her spouse, Marcelle, to that plan or to the vision benefit plan, nor can she use her flexible spending account for Marcelle’s medical expenses. Plaintiff Martin Koski, a retiree from the Social Security Administration, has been denied health insurance coverage for his spouse, plaintiff James Fitzgerald, although retired employees who are married to someone of a different sex may add their spouses to such coverage, as described below at Paragraphs 98-123. Plaintiff Dean Hara is the surviving spouse of Gerry Studds, a retired Member of the United States Congress. Dean has been denied both health insurance and the survivor annuity normally available to surviving spouses, which is described below at Paragraphs 124-169. In each instance, DOMA, 1 U.S.C. § 7, has barred the plaintiffs’ access to benefits routinely granted to others in similar circumstances.

7. Several of the plaintiffs, as set forth below, have been denied their correct spousal status by the Internal Revenue Service (“IRS”) on the basis of DOMA, 1 U.S.C. § 7, and thus have been required to pay more in federal income taxes than other similarly situated people married to someone of a different sex. Plaintiffs Melba Abreu and Beatrice Hernandez, as described below at Paragraphs 204-234, and plaintiffs Mary Ritchie and Kathleen Bush, as described below at Paragraphs 170-203, seek to file their federal income tax returns as “Married Filing Jointly” rather than as “Single” or “Head of Household.” Plaintiff Mary Ritchie also seeks to contribute funds to a “spousal IRA” for her spouse Kathleen Bush, to contribute to her retirement security, as an income-earning person who is married to someone of a different sex may do (see below at Paragraph 187). Plaintiffs Abreu and Hernandez and plaintiffs Ritchie and Bush filed amended federal income tax returns with the IRS, asking to be re-categorized as married taxpayers and requesting refunds. The IRS rejected each amended federal income tax return and accompanying refund claim on the basis of DOMA, 1 U.S.C. § 7.

8. Several of the plaintiffs, as set forth below, seek spousal protections afforded by the Social Security program. Three different widowers, plaintiff Randell Lewis-Kendell, as described below at Paragraphs 258-286, plaintiff Herbert Burtis, as described below at Paragraphs 287-310, and plaintiff Dean Hara, as described below at Paragraphs 124-169, seek the “One-Time Lump-Sum Death Benefit” normally available upon the death of a spouse. Plaintiff Burtis, relying on the long work record of his spouse, also seeks the survivor benefit normally available to a widower married to
someone of the opposite sex, as described below at Paragraphs 300-310. This benefit would increase his monthly Social Security payment by approximately $700 per month, to the level of the monthly payment that his deceased spouse John Ferris received before his death. As a person married to a spouse of a different sex is entitled to do (see below at Paragraph 246), plaintiff Jo Ann Whitehead, as described below at Paragraphs 235-57, seeks to increase her monthly Social Security payment based on the work record of her spouse, plaintiff Bette Jo Green, who has had higher earnings during their long relationship. Each of these plaintiffs has been denied these benefits by the Social Security Administration because of DOMA, 1 U.S.C. § 7.

9. Plaintiff Keith Toney seeks a passport bearing his correct name, which he lawfully changed as a consequence of his 2004 marriage to plaintiff Albert Toney III, as described below at Paragraphs 311-328. Invoking DOMA, 1 U.S.C. § 7, the State Department denied plaintiff Keith Toney’s request for a passport in his married name despite submission of his marriage certificate and other government-issued identification, although it accepts name changes effectuated through marriage for a person married to an individual of a different sex who submits the same documentation.

10. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202 and Fed. R. Civ. P. Rule 57 and for review of agency action pursuant to 5 U.S.C. §§ 701-706. It seeks a determination that DOMA, 1 U.S.C. § 7, as applied to plaintiffs, violates the United States Constitution by refusing to recognize lawful marriages for purposes of the laws governing benefits for federal employees and retirees, the Internal Revenue Code, the Social Security laws and the laws and regulations governing issuance of passports. The result of these violations of the Constitution is that each of the plaintiffs has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to them if their spouses were of the opposite sex.


Other cases and decisions, past and present, federal and state are listed here -

http://www.freedomtomarry.org/rights/tr_docs.htm ~ pinto

http://www.advocate.com/news_detail_ektid91055.asp

June 17, 2009

DOMA Lawsuit Wins First Victory
By Julie Bolcer


A plaintiff in a lawsuit against the federal Defense of Marriage Act will be allowed to get a U.S. passport using his married name, Gay and Lesbian Advocates and Defenders announced on Wednesday. The victory is the result of a recent change in State Department policy for the issuance of passports to people who change their name after marrying someone of the same sex.

GLAD filed its lawsuit, Gill v. Office of Personnel Management, in March to challenge section 3 of DOMA on behalf of six married same-sex couples and three men whose same-sex spouses have died. Section 3 of the law concerns federal recognition of same-sex marriages. In addition to the passport issue, other plaintiffs’ claims in the lawsuit involve taxation, Social Security, and federal employees’ benefits.

The passport complaint involved Keith Toney, who was able to change his last name from Fitzpatrick on his Massachusetts driver’s license after he married Al Toney III in 2004. However, the federal government denied his request to change his name on his passport, citing DOMA, which resulted in a frustrating discrepancy in his legal identification.

According to a letter sent to GLAD by the Department of Justice, the State Department will now issue passports to all married same-sex couples based on the name on their marriage certificates, provided the state issuing the certificate recognizes the name change in law.

Toney will apply for his new passport in Boston on Monday.

why legal equality is so important, it reaches into our everyday lives.

The Toney case seemed like a great example of why there is a Full Faith and Credit clause and why patchwork laws and interstate and intergovernmental variances create a nightmare. That's what people have ensured for themselves for a reason, and we are people, too.

:thumbsup:

I said elsewhere it's like dismantling DOMA one brick at a time.

I would have preferred that these cases wait for a differently composed Supreme Court, BUT if there is going to be a case going there anyway (and the two in California make that inevitable), these at least are much more solid involving attempts to exercise rights, denials based on DOMA, and documented harm.

Good Luck to all!