Federal Election Commission rules against married same-sex donors

Massachusetts state Rep. Dan Winslow.
(Charles Krupa / Associated Press)

WASHINGTON — Married same-sex couples cannot make joint contributions to federal candidates as opposite-sex couples are permitted to do, the Federal Election Commission said Thursday, a decision that gay rights advocates said reinforced their case for overturning the Defense of Marriage Act.

The five-member, bipartisan panel said the 1996 law defining marriage as between a man and woman prohibited the commission from viewing gay couples as spouses, even when they have legally wed under state law.

The unanimous opinion came in response to a query by Massachusetts state Rep. Dan Winslow, a moderate Republican and supporter of gay marriage who is running in the April 30 special primary to fill the U.S. Senate seat vacated by Secretary of State John F. Kerry.

Gay marriage through the years

Attorneys for Winslow told the commission this month that gay couples wanted to donate to his campaign with a single check, as heterosexual married couples are allowed to do.


Under FEC rules, a contribution made by a married couple in a single check is credited half to one spouse and half to the other for accounting purposes. That means that even when one spouse is the sole income-earner, each can donate the maximum contribution allowed under the law.

But the commission said Thursday that gay couples could not contribute with one check because the Defense of Marriage Act clearly defined “spouses” as referring to a husband and wife.

“I understand why they decided the way they did,” said Craig Engle, an attorney for Winslow. “DOMA tied their hands. Sometimes what’s right is not legal.”

Winslow expressed disappointment. “It’s sad that in the 21st century the federal government is still denying certain people their 1st Amendment rights as guaranteed under the U.S. Constitution,” he said in a statement.

The decision is a small setback for Winslow, who is trailing his rivals for the GOP nomination in the Senate race.

FULL COVERAGE: Battle over gay marriage

But it was a victory of sorts for gay rights advocates as they await a decision by the Supreme Court on the constitutionality of the Defense of Marriage Act, expected sometime in June. Opponents of the law have argued in amicus briefs that it has unexpected and far-reaching implications, potentially affecting the application of federal ethics laws and tax statutes. The commission’s ruling provided fodder for their case.

“Now we have a real decision for the court to take note of, if they choose,” Engle said.

Gregory T. Angelo, executive director of the Log Cabin Republicans, a gay rights group that pursued the opinion with Winslow, said the FEC opinion underscored how federal law treats married same-sex couples differently than their heterosexual counterparts.

“Now more than ever, this shows us and, we hope, shows the Supreme Court of the United States that the Defense of Marriage Act is something that is unconstitutional and needs to be overturned,” he said.

In its opinion, the commission indicated that it would revisit the question of joint donations by married gay couples if the Defense of Marriage Act is overturned.

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