Last month’s landmark ruling in Gill v. Office of Personnel Management that declared Section 3 of the Federal Defense of Marriage Act (DOMA) unconstitutional has been temporarily stayed pending an appeal, and the judgment has been modified to clarify that it applies only to the named plaintiffs.  The U.S. Department of Justice has 60 days from August 18, 2010 to decide whether it will appeal the decision by the United States District Court for the District of Massachusetts to the First Circuit Court of Appeals.  Although a Justice Department spokeswoman announced that no decision has been made yet on the appeal, most legal experts originally opined that an appeal was likely given the dramatic impact the decisions may have on same-sex couples’ ability to receive certain federal benefits and/or protections.  But with the narrowing of the judgment, it remains to be seen whether the Justice Department will choose to let this opinion stand, hoping for more favorable facts in a subsequent decision.  Nevertheless, if Judge Tauro’s decisions in Gill and a companion case are followed in cases involving other same-sex marriages, married same-sex couples would be allowed to file joint federal tax returns, receive spousal benefits through Social Security, obtain employer-sponsored medical benefits tax-free, and receive protection under the spousal provisions of ERISA relating to qualified retirement plans.

The U.S. Department of Justice and the parties represented by Gay & Lesbian Advocates & Defenders (GLAD) reached an agreement on the stay last week.  GLAD announced that it was in its clients’ best interests because only a final victory would ensure that any awarded benefits, such as Social Security payments or tax refunds, would not be subject to repayment to the government in the wake of a potential court reversal.  The organization also wants clarity for married same-sex couples around the country. 

In addition to the stay, Judge Tauro also filed an amended judgment (pdf) in Gill that fully outlines what his July decision means for each plaintiff – 7 married same-sex couples and 3 widowers.  The amended judgment makes it clear that the “as applied” challenge provided relief only for the named plaintiffs and that the opinion does not necessarily result in elimination of DOMA as a barrier to recognition of other state-sanctioned same-sex marriages for other purposes under Federal law.  Originally filed in March 2009, Gill was considered by many to be one of the best challenges to DOMA, and the National Law Journal previously identified the case as having the greatest potential for national impact.     

Susan K. Hoffman authored this entry.