Brian Rice knows first-hand what it’s like to be part of a group that is not recognized for benefits by the federal government.
Now a litigation associate in McCarter & English’s construction law practice, back in 2004 when he lived in Massachusetts, Rice and his partner became one of the first same-sex couples in the nation to legally marry.
Although Rice’s marriage to Jason Kelliher is recognized in Connecticut, they cannot utilize the tax deduction for married couples under the federal tax code, because of the Defense of Marriage Act. “It impacts us every year at tax time,” Rice said. “Because the federal government doesn’t recognize us as married, we have to file [separately]. It doubles the work.”
Rice, who is secretary of the Connecticut Bar Association, hopes that will change. When the Boston-based Gay & Lesbian Advocates & Defenders approached the CBA and asked that it support amicus briefs to challenge the constitutionality of DOMA, Rice was thrown into the process of deciding whether the CBA should join the fight.
The CBA Board of Governors, on which Rice serves, voted 12 to 4, with one abstention, to participate in the GLAD brief, joining more than 18 other amici from across the political spectrum that weighed in on the issue. On Sept. 27, the U.S. Court of Appeals for the Second Circuit will take up the case for which the brief was filed.
The CBA Board of Governors’ decision sparked lengthy discussion. Some longtime members said the association had traditionally stayed away from political “activism” which could alienate members. CBA president Barry Hawkins and others said that joining Connecticut Attorney General George Jepsen and other bar organizations opposing DOMA was the right stance, arguing that gay marriage is the “civil rights question of our decade.”
Lost in some of the controversy over the CBA decision is just how the DOMA challenge will proceed. In fact, the CBA and GLAD amicus brief may actually end up as part of two cases.
It’s already been filed as part of a New York lawsuit brought by Edie Windsor, who claims she was denied benefits when her wife, Thea Spyer, died. A Manhattan federal judge ruled in Windsor’s favor. Because the administration of President Barack Obama has refused to defend the DOMA law, an appeal has been filed by attorneys hired by Republicans in the U.S. House of Representatives. That matter is now before the U.S. Court of Appeals for the Second Circuit. Oral arguments are scheduled for Sept. 27.
The amicus brief could also be filed in the Connecticut case of Pederson v. Office of Personnel Management Act. In that case, six same-sex couples and one widower from Connecticut, Vermont and New Hampshire, are seeking to have the federal law that defines marriage as only between one man and one woman deemed unconstitutional. A Connecticut federal judge ruled in favor of the same-sex couples in July.
There is a chance that case will go directly to the U.S. Supreme Court. A decision on that question is expected in October. If the high court does not grant certioriari, the appeal with go to the Second Circuit and the CBA and GLAD brief will follow it. (Last week, Justice Ruth Bader Ginsburg told students at the University of Colorado at Boulder that she believes the Supreme Court will take up a DOMA challenge before the end of the coming court term.)
Tim Fisher, a partner at McCarter & English in Hartford who signed the amicus brief as the attorney of record on behalf of the CBA and other bar organizations, said the key issue in the brief is that “the definition of marriage has always been a matter of state law.”
The federal government, he said, has always relied on the states to define who can qualify for benefits as a married couple. DOMA, however, “for the first time has rejected those rights of states,” Fisher said.
“The result is a very difficult and burdensome variation of how people are treated according to whether their rights are governed by state or federal law,” he said. “We contend that for the U.S. Congress to draw that line and single out this group strips them of rights that everyone case enjoys can’t be justified under the equal protection clause.”
In addition to the CBA, groups from the state that have joined in the amicus include the Connecticut Hispanic Bar Association, the George W. Crawford Black Bar Association, the South Asian Bar Association of Connecticut and the Connecticut Women’s Education and Legal Fund.
Filing amicus briefs supporting DOMA are the Frederick Douglas Foundation, the American College of Pediatrics, former U.S. Attorneys General Edwin Meese and John Ashcroft and the National Organization for Marriage.
Brian Rice said he was considered a “pioneer” in 2004 when he and his husband married in Massachussets. When he and his partner moved to Connecticut that year, Rice said they were in “legal limbo” until 2008, when the case of Kerrigan v. Connecticut Department of Public Health guaranteed same-sex marriage rights in the state.
Ever since then, Rice has lobbied to the state and federal lawmakers for equal protection to same sex-couples. On Aug. 28, he spoke up again, during the CBA Board of Governors conference call.
At first, Rice said, he stayed in the background and “watched the debate unfold.” The discussion among CBA leaders was focused on how joining other law-related organizations in opposing DOMA would impact the reputation of the CBA.
“I didn’t want to get up and jump right in,” Rice said. But after listening to the words of those on the Board of Governors for and against, which he said were articulate and thoughtful, he decided to stand up and share his thoughts.
Rice said he felt it was important to let people know that the law has a personal impact on his life. He also said it was important to speak out for other gay CBA members who might not feel comfortable doing so. His bottom line is that there is a fundamental unfairness in being denied access to benefits because of sexual orientation.
“Because the federal government doesn’t recognize us as married,” Rice told his fellow Board of Governor members, “we wouldn’t be able to get benefits that other people can.”
The law also affects their career decisions. If Rice or his partner want to ever work for the federal government, under the current law they would be denied health and retirement benefits that other married employees enjoy. The couple also faces, at some point in their marriage, being denied Social Security and family medical leave benefits.
“This isn’t political,” Rice said. “It’s really a narrow legal issue on equal protection.”
Brad Gallant, the immediate past president of the CBA and a Board of Governors member who voted in favor of joining the amicus brief, called Rice’s decision to stand for what he believes the act of “a very courageous young man.”
Rice said it was difficult to “stand up and speak about something, especially when you feel the government is discriminating against you. I’m personally proud that the CBA decided to step up to the plate.”•