The Massachusetts Case Against DOMA
The attorney general of Massachusetts filed a federal complaint against DOMA yesterday. They are suing on constitutional grounds, saying that married same-sex couples in Massachusetts are unfairly being denied the same federal benefits that married opposite-sex couples enjoy.
BOSTON — Massachusetts, the first state to legalize gay marriage, sued the U.S. government Wednesday over a federal law that defines marriage as a union between a man and a woman.
The federal Defense of Marriage Act interferes with the right of Massachusetts to define and regulate marriage as it sees fit, Massachusetts Attorney General Martha Coakley said. The 1996 law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.
Massachusetts is the first state to challenge the federal law. Its lawsuit, filed in federal court in Boston, argues the act “constitutes an overreaching and discriminatory federal law.” It says the approximately 16,000 same-sex couples who have married in Massachusetts since the state began performing gay marriages in 2004 are being unfairly denied federal benefits given to heterosexual couples.
“They are entitled to equal treatment under the laws regardless of whether they are gay or straight,” Coakley said at a news conference.
[snip]
The lawsuit focuses on the section of the law that creates a federal definition of marriage as “a legal union between one man and one woman as husband and wife.”
Before the law was passed, Coakley said, the federal government recognized that defining marital status was the “exclusive prerogative of the states.” Now, because of the U.S. law’s definition of marriage, same-sex couples are denied access to benefits given to heterosexual married couples, including federal income tax credits, employment benefits, retirement benefits, health insurance coverage and Social Security payments, the lawsuit says.
The lawsuit also argues that the federal law requires the state to violate the constitutional rights of its citizens by treating married heterosexual couples and married same-sex couples differently when determining eligibility for Medicaid benefits and when determining whether the spouse of a veteran can be buried in a Massachusetts veterans’ cemetery.
This is, in my non-lawyer opinion, the line of attack that a successful lawsuit has to take. It seems to me that DOMA is unconstitutional and it always has been. It is also, as Emma Ruby-Sachs notes today in the Huffington Post, the conservative argument against DOMA.
But yesterday, the Attorney General of Massachusetts filed a complaint that chiefly argues DOMA’s violation of state’s sovereignty over the definition and regulation of marriage.
The genius of this complaint is that it takes a conservative argument — that liberal states should not be permitted to impose their tolerance and acceptance of homosexuality on the rest of the country — and turns it around to benefit a state that really pioneered gay rights in the U.S.
Even a conservative justice would support the notion that federal encroachment over those few areas where states have sovereign jurisdiction is unconstitutional. In this case, that principle supports, at the very least, limiting the application of DOMA when it affects state programs with federal funding.
If a conservative justice chooses to oppose the argument put forward by Massachusetts Attorney General Martha Coakley, then their logic could be used in the future to justify federal enforcement of equal rights on those states that oppose same-sex marriage. If state’s no longer have absolute jurisdiction over marriage, a liberal government can interfere with a conservative state’s policies.
Coakley’s lawsuit will likely be joined with Gill et al. and the two will proceed as the most viable challenge to DOMA (many think that Smelt threw too many punches and doesn’t have the same institutional support as the Massachusetts suits since the lawyers involved were not working closely with Lambda Legal and other LGBT litigation groups with long histories in the gay rights movement).
It also has the support of Senator John Kerry. Kerry, a lawyer by training, argued way back in 1996 in the Senate, that DOMA was unconstitutional.
His reasoning then, that the full faith and credit clause would be threatened by a law that refused to recognize marriage rights potentially given by some states and not all, has not been popular in modern law suits. Perhaps this is because the trend on hot button social issues has been towards state sovereignty and full faith and credit undermines that sovereignty.
Hence the genius of Coakley’s argument.
We can all look forward to the slow, grueling process that is the march to the Supreme Court. And hopefully, by that time, a number of new states will join the same-sex marriage party.
But Coakley’s suit is significant. It is a smart, novel attack on a law that is clearly unconstitutional, but also has the support of a waning, yet still significant portion of the American population.
Hopefully this lawsuit will prevail. Congress did overstep its bounds when it passed DOMA in 1996. The law was then, as it is now, discriminatory and wrong. It has been 13 years. If Congress can’t find the backbone to repeal DOMA (and DADT), hopefully the courts will. Perhaps the conservative argument that Massachusetts is making will prevail.
It sounds so reasonable and straight forward. That means you can count on Clarence Thomas voting against it.
Probably so, Alan. But how could Scalia, and still be intellectually honest?