Advocating Equality Before DOMA and After

Last week in a landmark decision, the Supreme Court of the United States ruled the Defense of Marriage Act (DOMA) was unconstitutional and struck down a federal law denying benefits to legally married same-sex couples.

Arent Fox’s Political Law group was on the prevailing side in the Supreme Court’s DOMA and Proposition 8 decisions. An amicus brief signed by Political Law head 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 unequal treatments, 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 that prompted our amicus brief and FEC arguments,” said Mr. Engle. These include 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.

The Political Law group should soon return to FEC and ask that it reverse its recent involving Arent Fox’s client, Dan Winslow for US Senate. That decision denied equal joint contribution rights to same sex couples. With Arent Fox’s filing, the FEC may be the first agency in the federal government to adopt concrete changes because of the Supreme Court’s decision in DOMA.

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 Hunter 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 detail, please read the firm's web page that discusses “Advocating Equality,” which can be found here.


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