New DOMA Challenge Allowed

Three California public employees and their same-sex spouses were allowed to challenge the constitutionality of Code Sec. 7702B(f) because it interferes with their ability to purchase long-term care insurance through their employer. Participants in qualified long-term care programs can deduct the premiums as medical expenses. In addition, the benefits received are not taxable. Code Sec. 7702B(f) denies this favorable tax treatment to state-maintained long-term care insurance plans if they provide coverage to same-sex spouses.

Although "spouses" are eligible for coverage under Code Sec. 7702B(f), the Defense of Marriage Act (DOMA) defines spouse to mean a "person of the opposite sex who is a husband or a wife." It also defines marriage as "a legal union between one man and one woman as husband and wife." So, CalPERS refuses to allow lawfully married same-sex couples to participate in its long-term care program because of DOMA.

The government conceded that DOMA departed from the federal government's usual practice of accepting marriages recognized by state law and the court found that the individuals sufficiently claimed that the laws at issue have no rational relationship to a legitimate governmental interest.

Congressional Ethics and DOMA

Many of the Congressmen and Senators who voted to pass the Defense of Marriage Act (DOMA) are licensed attorneys. Those individuals were required to take an oath to uphold the Constitution of the United States and the State where they were licensed.

In addition, the ethics rules in many states require attorneys to avoid doing anything that would undercut the rule of law.

DOMA explicitly amends the "full faith and credit" clause of the constitution. Unfortunately, the U.S. Constitution may not be amended by Congressional fiat. Shouldn't the lawyers in Congress know that?

Since DOMA is clearly unconstitutional, should those attorneys who voted for it be subject to an ethics investigation and possible sanctions under attorney discipline rules?