WASHINGTON — While they await a Supreme Court ruling on same-sex marriage, gay rights advocates are taking their fight to a new arena: campaign finance law.
A pro-gay-marriage Republican candidate for U.S. Senate in Massachusetts has asked the Federal Election Commission to determine whether gay couples have the right to make joint contributions to political candidates.
In a request for an advisory opinion Friday, attorneys for State Rep. Dan Winslow, a moderate Republican running in a special election to fill the seat vacated by Secretary of State John Kerry, asked the commission whether gay couples can donate to his campaign with a single check, as heterosexual married couples are allowed to do.
The matter underscores the far-reaching and often unexpected implications of the 1996 Defense of Marriage Act, known as DOMA, which denies federal benefits to gay couples legally married in their states. The Supreme Court is considering a challenge to the law and is expected to issue a ruling in June.
“If there were any doubt as to the necessity of the Supreme Court deciding the constitutionality of DOMA, situations like this prove it,” said Alan Morrison, a George Washington University Law School professor who filed an amicus brief with the court arguing that the law has undermined federal ethics and tax statutes. “Things like this are coming up in every agency, all the time.”
Under FEC rules, married couples can donate to federal campaigns through a single check and have the contribution split, with half attributed to each individual. The method ensures that even when one spouse is the sole income-earner, each has the opportunity to contribute the maximum allowed under the law.
“One spouse may only have income. One spouse may only have a banking account,” said Craig Engle, a Republican election law attorney representing Winslow’s campaign and the Log Cabin Republicans, a gay rights group.
But because federal and Massachusetts law have different definitions of the term “spouse,” it is unclear whether Winslow’s campaign can accept joint checks it has received from gay couples, Engle said.
With the GOP primary for the special election set for April 30, the campaign has asked for an expedited ruling in the next three weeks.
If the FEC decides that its definition of “spouse” is determined by the Defense of Marriage Act, married gay couples would not be able to donate to a campaign through a single check. That could limit donations and potentially affect the disclosure of contributors, Engle said.
“It highlights the inherent inequalities that exist with the Defense of Marriage Act on the books,” said Gregory T. Angelo, executive director of the Log Cabin Republicans. “The freedom of speech of these couples is limited because of these potential barriers.”
The group decided to pursue the matter with the Winslow campaign because it offered an opportunity to spotlight the law’s complications and political implications, Angelo said.
“This could highlight to Republicans just how important it is for them to support same-sex committed marriages, because it has the potential to benefit their campaigns financially,” he said.
The matter injects a new twist on the gay marriage debate into the special election, in which Winslow — who served as chief legal counsel to Mitt Romney when he was governor of Massachusetts — has emphasized his support for same-sex marriage. In doing so, he’s sought to contrast himself with one of his opponents, former U.S. Attorney Michael Sullivan, a social conservative who has called himself “a traditionalist when it comes to the definition of marriage.”
“I believe that equality is the founding value of the party of Lincoln, the Republican Party,” Winslow said in a statement. “Consistent with my belief in marriage equality, I believe these donations should be accepted.”
