Massachusetts challenges federal Defense of Marriage Act

[Zenlitened]

Source: Boston Globe

Massachusetts, the first state in the nation to legalize gay marriage, has become the first state to challenge the constitutionality of a federal law that defines marriage as the union of a man and a woman, saying Congress intruded into a matter that should be left to individual states.

"In enacting DOMA (the Defense of Marriage Act), Congress overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people," the state said in a lawsuit filed today in US District Court in Massachusetts.

The lawsuit said that more than 16,000 same-sex couples have married in Massachusetts since the state Supreme Judicial Court ruled that gay marriage was legal in 2004 "and the security and stability of families has been strengthened in important ways throughout the state."

(snip)

The lawsuit argues that DOMA, which was enacted in 1996, precludes same-sex spouses from a wide range of protections, including federal income tax credits, employment and retirement benefits, health insurance coverage, and Social Security payments.

Read more: http://www.boston.com/news/local/breaking_news/2009/07/mass_to_challen.html

[Lone_Star_Dem]

1. Way to go Massachusetts!!

:kick: and recommended!

[Ian David]

3. You're welcome! n/t

[Swede Atlanta]

40. Very interesting angle.....

I think DOMA is unconstitutional on a number of levels:

1. Full Faith and Credit Clause of the U.S. Constitution requires all states to give full faith, i.e. recognize all "public acts, records, and judicial proceedings" of other states. Civil marriage is recognized as a public act. If Massachusetts marries two persons of the same gender that is a "valid act" according to the laws of Massachusetts and must be recognized in all other states under this clause.

I don't think Congress can by legislative act diminish or alter the meaning of this clause. I believe it would take a Constitutional amendment to change this clause to exclude same-sex marriage. Congress overstepped its authority.

2. Marriage and other domestic affairs are the purview of the states
Marriage and other domestic matters (e.g. divorce, adoption, etc.) have always been recognized as matters within the jurisdiction of the states. That is both historical and arguably for constitutional reasons. The federal government is a government of limited powers - the so-called enumerated powers. All other powers such as the general police power are left to the states. Congress and the courts have dramatically broadened things considered to be within the constitutional reach of the federal government by interpreting various enumerated powers in very liberal (meaning broad) ways such as the Commerce Clause (used to prohibit discrimination against blacks in transportation and public accommodation prior to the passage of the Civil Rights Act).

Marriage has come within the purview of the Supreme Court when the question is whether or not a state law or Constitution violates equal protection and other constitutional rights. That is why the Supreme Court could strike down laws prohibiting inter-racial marriage in Loving v. Virginia.

But as a general matter Congress lacks Constitutional authority to regulate marriage.

3. Equal Protection
I don't think the equal protection argument (same-sex surviving spouses cannot receive social security of a deceased spouse) will win. The court in Lawrence did not decide that case on equal protection (the argument made by Justice O'Connor in a concurring opinion) but rather that sodomy laws violate the recognized constitutional right to privacy. Once the court recognizes same-sex couples as deserving of equal protection as a suspect or quasi-suspect class, the doors swing wide open. I'm not sure the current composition of the Court is ready to go that far.

This will be interesting especially in light of the case being brought from California and being litigated by David Boies and Ted Olson (opposing counsel in Bush v. Gore).

[Ian David]

2. This would normally be awesome news, but wish we had another spot on the USSC. n/t

[jgraz]

6. In this case, we do.

Kennedy's been pretty solid against anti-LGBT discrimination.

[customerserviceguy]

32. Edited

I went back to read the article, and found that MA is challenging only one part of DOMA.

[GreenPartyVoter]

4. Proud to be the fifth rec!

[jgraz]

5. I can't believe even the current troglodytes on the court would uphold DOMA

Well, Thomas would. But the rest at least have SOME functioning neurons.

[Ian David]

7. Scalia voted with the minority in Lawrence v. Texas.

He just votes straight-ticket Medieval.

[jgraz]

9. DOMA is a whole 'nother thing, though

It blatantly violates the "full faith and credit" clause. Scalia may vote to uphold but, at 73, he's gotta be thinking a bit about legacy. I can't believe he'd want to be remembered as one of the worst justices in the history of the Court.

Of course, that ship may have already sailed...

[Recursion]

10. Scalia's position isn't quite so simple, IMO

He thought the Lawrence ruling was dangerously broad (and truth be told, he has a point regarding the way it was written, IMO). But this is a Federal vs. State case in many ways, and Scalia holds some pretty weird views in that field.

[Jankyn]

8. Any chance it will be combined...

...with the Boies/Olson case?

[WonderGrunion]

29. Should be no chance of that

Each case attacks different laws on different grounds. Boies/Olsen attacks Prop 8 in california from an equal protection (14th Amendment) point. This one attacks DOMA (a federal statute) from a states rights (9th Amendment) position.

[pipi_k]

11. I think marriage should be defended from

the fuckwad heterosexuals who think it's OK to shit all over the sanctity of their marriage vows by having affairs with other women and diddling little boys.


Proud to be a Massachusetts-ite

:)

[Nothing Without Hope]

12. I'm proud of my state for this. Go Massachusetts! n/t

[pinto]

13. Going at it from the loss of *federal* protections (i.e. tax credits, Soc. Sec.) seems a smart move

to make at the level of the US Supreme Court. At least to this layman. :thumbsup:

[Vidar]

14. Bravo Massachusetts!

[Fearless]

15. HELL YEAH!

I love my state! :patriot:

[varelse]

16. What wonderful news :)

Thank you, Massachusetts Democrats and progressives :)

[justiceischeap]

Hot Damn!

This is good news coming on the heels of the Maine news. (They got their 55,000 signatures to put gay marriage rights to a state vote)

[WonderGrunion]

30. It's too easy in Maine to put these issues on a ballot

Just like California, I'm afraid. We'll need to organize hard locally to fight this. The good thing is that anti-gay bigots up here have lost the last two times they tried to attack LGBT rights at the ballot box.

[Dogtown]

17. K&R n/t

[berni_mccoy]

18. The best part is that they are using the old favorite argument of the NRA and RW: state's-rights.

[KamaAina]

19. Once again Massachusetts stands up to tyranny

Huzzah, brave patriots! :yourock:

[grantcart]

20. John Adams would be proud.

[kimmylavin]

21. Excellent!

And I like how they included "the security and stability of families has been strengthened in important ways throughout the state" for all those jackasses who say gay marriage somehow negatively affects families. (I still can't wrap my head around that one...)

Go Massachusetts!

[polmaven]

27. "Gay marriage will destroy 'traditional' marriage"

Sure...much more so than Argentinian "soul mates" will, I guess.

I know of not a single "traditional" marriage that has broken up because the couple down the street is gay. I know of a LOT of them broken up because the "babe" or the "stud" down the street is available.

[No Elephants]

38. In the several years that Massachusetts has recognized same gender marriage, all "opposite"

marriages that existed several years ago have been dissolved and no new "opposite" marriages have been entered into. As a result, the only married couples in Massachusetts now are same gender marriages.

The theocrats have been totally vindicated.

:silly:

In reality: In public places, I used to hear some older folk going on against same gender marriage, but only while the Focus on Family types were campaigning here. After the legislature let the constitutional amendment thing die over two sessions, the neo theos abandoned the state and I hear no one talking about gay marriage anymore, one way or the other. Seems to be a non-issue, just as it should be.

[ladym55]

47. Yep, Massachusetts has stable families

The Globe ran a mini-editorial a few days back that said that Massachusetts had the second lowest divorce rate in the nation and the third lowest teen pregnancy rate.

I've always liked this sentiment (and I think it can be attributed to Ellen Goodman): Massachusetts likes marriage SO much, they want everyone to have it.

Go, Massachusetts!!!! :applause:

[TheWraith]

22. FYI everybody, this is MUCH better news than the Prop 8 suit filed in California.

Mainly because they're directly suing the Feds over DOMA instead of appealing to try and get a state proposition knocked down under Equal Protection. That gives them better standing to challenge it as well as a much stronger case to go directly at DOMA instead of needing to establish whether the 14th Amendment covers gay marriage.

[Mad_Dem_X]

23. Great news! n/t

[SecularMotion]

24. K & R

from another proud resident of Massachusetts.

:kick:

[Kajsa]

25. Massachusetts leads the way, again!

Bravo, and about damn time!

:applause:

[AntiFascist]

26. Best of luck Massachusetts....

the people of your state seem to be more evolved than the majority in California, sad to say.

[WonderGrunion]

28. Interesting to challenge it from a "States Rights" perspective

That should make some conservatives heads explode.

[David__77]

31. Glad there's no hand wringing here.

I remember when I first started posting here way back in 2001. Lots of posters were so skittish about equality for gay people, and chanted "back burner!" all the time. Glad to see we're making progress in progressive ranks.

[bluescribbler]

33. Go Martha!

AG Caokley has given me one more reason to be proud to vote for her.

[graywarrior]

34. And I can proudly say I am a Masshole again! Weeeeeeee!

[madrchsod]

35. so it`s up to the states to sue the federal law....

state`s rights issue will make the knuckle daggers heads explode.

yes...this will be a bigger test than California.

[rgbecker]

36. I'm proud to be from Massachusetts!

Insofar as my taxes are paying for this challenge, I join with those DUers from Massachusetts in saying you are so welcome to our help and getting this DOMA out of state affairs.

[Politicub]

37. And here we go!

It's going to be a bumpy ride, but it always has been. The wheel continues to turn.

[tomm2thumbs]

39. Ensign's letter - shows precisely how these people 'protect marriage' - by ruining their own

He's not in love with his wife OR the other woman - he's in love with 'Him'. I hope They are happy together.

This was the letter Ensign allegedly sent to 'the other woman' and Huffington Post reports that after this... 'that attitude changed quickly, says Hampton, who claims that Ensign later repudiated the letter and told him "I'm in love with your wife."

Way to protect that marriage!! Way to go!!

[ProSense]

41. Kerry supports challenge

All it takes is one state.

[ProSense]

42. Congressman introduces bill to repeal DADT

here

[MannyGoldstein]

43. I Like Being A Masshole

Other than the winter weather.

People are generally nice to each other here.

[midnight armadillo]

50. Yeah, none of that fake Southern friendliness shit

Here, if someone's being nice, they mean it. Otherwise you'll get a "how's it going" (which, to non-Massholes, is not something that requires a response) and they'll just ignore you. It's honest.

I like the winter weather because it helps drive the douchebags to Florida.

[ibegurpard]

64. LoL

ah, that fake southern charm.
I prefer to be stabbed in the chest than in the back thanks.

[rox63]

44. I love my home state!

Another reason why I'm proud to be a lifelong Masshole! :D :D :D

[ejbr]

45. k & r !!! n/t

[JonLP24]

46. Recommended

:kick:

[RetiredTrotskyite]

48. K&R

Way to go, Mass!!!

[greeneyedboy]

49. the Law Dork 2.0 blog has a good analysis of the case

Law Dork goes into this case in some depth: http://lawdork.wordpress.com/ .

[Zenlitened]

59. Interesting analysis. Thanks for posting the link!

:hi:

[Wednesdays]

51. K&R

:kick:

[LiberalAndProud]

52. Massachusetts totally ROCKS!!!

I wish I could be a Masshole too. You folks have more than one reason to be very very proud of you state. (You really call yourselves Massholes?)

[rox63]

56. The name was originally imposed on us by neighboring states because of the way some of us drive

But many of us now wear the label with pride, as a poke in the eye to those who originally labelled us with the name.

[AllyCat]

53. MA rocks! And in WI...we have a "constitutional" ban. Hope this fixes it

[happyslug]

54. I suspect the Courts will reject this action, on the grounds these are FEDERAL rights not STATE Righ...

Please note this action is NOT against the section of DOMA that permits each state NOT recognize any other state's decision to permit Gay Marriages (I.e. Congress;s ruling that the Full Faith and Credit Clause does NOT apply to homosexual marriages), but an attack on Rights granted by the Federal Government in the form of Federal Recognition of married couples for the purposes of FEDERAL Rights.

Now, we are NOT talking about Constitutional rights, through the Tenth Amendment is being used, but rights given by the Federal Government in regards to the rights of married couples under the Federal Income Tax law and the Social Security Law (and other similar laws). Remember the rights of married couples under both sets of law is determined by FEDERAL LAW, thus a married heterosexual couple can filed a joint return but a Massachusetts married homosexual couple can not. A heterosexual spouse of a "wage earner" for Social Security purposes is entitled to certain benefits under the Social Security act, but Homosexual spouses are NOT. These "rights" are set by FEDERAL STATUTE not the US Constitution. The underlying Federal Law recognize what each state calls a married couple, but both do NOT defined what is a married couple, leaving that up to State Law. Congress saw this as a problem and wrote DOMA so that even if a State recognize a Homosexual marriage, the Federal Government does NOT have to. Such a definition is within the power of congress for both the Federal Income tax AND the Social Security Act reflect FEDERAL Benefits, NOT state benefits.

Now the Tenth Amendment reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

What Massachusetts is trying to say is that the Marriage is something up to each state to define and thus DOMA is unconstitutional for the Federal Government can NOT come up with a separate definition of Marriage. The attack on this is simple, DOMA is NOT the Federal Government defining Marriage, but the Federal Government exercising its power of taxation to define who can take a deduction and the power of taxation includes defining who can take a deduction (i.e. the Federal Government can defined what married couples can take a Federal Income tax Deduction). This is a Clear right of the Federal Government and I see this attack on it to fail.

The Federal Defense of DOMA as to Social Security is weaker, given that Social Security, when it was established in the 1930s, is an independent grant of power from the states to the Federal Government. We must remember that even today any state can drop out of the Social Security system. Now such dropping out of the Social Security System would deny any resident of that State from getting Social Security. On the other hand, since the Federal Government has a clear right under the US Constitution to raise taxes any way its wants, any state that drops out of Social Security will still have the Social Security taxes collected within its borders. Yes, a State could set up a system where you still have to pay Social Security Taxes BUT no one would get any Social Security benefits. For this reason ALL States have delegated to the Federal Government the right to set up a Social Security System.

I point this out for it means that the Social Security System is constitutionally a State system, run by the Federal Government using Federal Taxes. Social Security is a joint Federal-State program, with all of the money coming from the Federal Government. Given this joint nature and the fact that Congress, in setting up the Social Security System, was acting as an agent of ALL of the states, and must treat ALL of the states equally, the issue of who is a married couple will come up.

Traditionally Social Security has looked to State Law if the Social Security Act or other Federal Law does NOT address an issue. Thus the Social Security Act says a spouse of a wage earners is entitled to benefits under that wage earners Social Security account, but does NOT define who a spouse is. The Social Security Act left that up to each state. DOMA changed this when it comes to Homosexual spouses, basically saying such spouses are NOT spouses for Federal purposes including Social Security. Did Massachusetts retain this right when it gave the Federal Government the sole right to set up a Social Security System? Or did all of the States delegated who gets Social Security to the Federal Government alone? This can be a 10th Amendment issue, but more so what was the power delegated from the States to the Federal Government when the Social Security Act was passed?

While I will say that DOMA definitions of marriage for purposes of the Federal Income deduction is clearly within the sole power of the Federal Government (And I see ALL nine Supreme Court Judges making such a ruling), Social Security is different. It is clear that the people who wrote the Social Security Act in the 1930s only accepted the idea that heterosexual couples where the only people legally allowed to married in all 48 states (Remember Social Security was passed in the 1930s, Alaska and Hawaii did not come into the Union till 1959 and 1960 respectfully). The states, when their delegated the power to set up the Social Security Act also had this view (Again we are talking about the 1930s). Thus the state gave the power to the Federal Government to set up who can get Social Security, and once that right was given only the Federal Government has to right to defined who is eligible for Social Security benefits. Thus DOMA excludes Homosexual marriages from Social Security benefits for who is eligible for such benefits is within the sole power of Congress. I can see the Court making the opposition ruling, that each state can define marriage as each states wants to and that is within the rights of the state even for Social Security Purposes. The biggest problem with that argument is Social Security has always been a program run and financed by the Federal Government and thus Congress can be viewed as the body who decides who gets Social Security Benefits (i.e. Congress has the Constitutional right to exclude Homosexuals couples if Congress so desires).

Now, I will NOT get into the concept of "Standing" except to say, how is Massachusetts affected by the fact that the Federal Government do NOT include Homosexual Couples in the Federal Government's definition of who can file as a married couple for federal income tax purposes? I see no harm to Massachusetts and this case, as to Federal Income Tax, should be dismissed on the issue of Standing (i.e. Massachusetts suffers NO direct harm do to this Federal Definition and thus has not right to challenge the law). Now a Private Couple could do so, if denied the deduction for Income Tax purposes on the grounds their homosexual marriage is NOT recognizes do to DOMA, but such a couple has to bring it themselves and face the same issue above i.e. the Federal Government has the SOLE right to set up its tax system and who is treated under that system. I.e. they will lose just like I think the state will lose.

As to Social Security, the issue of Standing is less clear (i.e. NOT subject to summary dismissal as in the case of Federal Taxation). The State can claim that if someone can NOT get Spouses benefits of the Social Security Act they would become a cost to the State (and thus the state has a clear harm caused by DOMA and thus has standing to file the action). Again less clear and when the Motion is made for Summary Judgment, the Judge may ask for clear evidence of actual harm before ruling on the issue of the case (i.e. if the State FAILS to show how it is harmed by DOMA, not its citizens the state itself, then a Judge will dismiss the action on Standing ground without ever getting to the underlying issues). Again a persons, married under Massachusetts law and then denied survivor's benefits would clearly be affected by DOMA would survive a Standing Challenge and get to the underlying issues.

My point is I see this lawsuit going no where. The Lower courts should rule that DOMA is within the power of Congress, given these are Federal Rights and Benefits. The Supreme Court may not even take the case given the above unless some lower court actually rules that DOMA is unconstitutional then the Supreme Court will take the case.

[Zenlitened]

60. See:

http://lawdork.wordpress.com/2009/07/08/breaking-massachusetts-ag-to-sue-u-s-for-marriage-recognition/

[happyslug]

62. That does NOT address my comments

Six rationales are cited in that article, the first three are as follows:

1. DOMA created a federal definition of marriage, directly interfering with Massachusetts’ longstanding soverign authority to determine who it determines are “married” under federal law.
2. DOMA is a discriminatory law.
3. DOMA places Mass. in the position of choosing whether to adapt its programs to fit federal law, but if it does so, it limits the ability of Mass. residents to have full equality under Mass. programs.

The response to 1, is easy, the Federal government has the right to define terms as it seems fit for FEDERAL purposes only, Federal Income taxation and Social Security are FEDERAL programs and if the Federal Government does NOT like a State's definition for the sole purposes of those Federal Program the Federal Government can

The response to 2 is even easier, Does DOMA violate the US Constitution or Federal Statute? The Federal Government, like any state or individually, has the right to discriminate provided it is NOT illegal discrimination (I.e. you can discriminate against hiring a ex-bank robber as a bank teller, but if the reason is NOT that he is a ex-bank robber but his race, that is illegal). The State of Massachusetts says you must treat Homosexual couples like heterosexual couples, but that is NOT binding on the Federal Government if the Federal Government decides NOT to follow it (i.e. in the form of DOMA)

The reposne to #3 is similar, we are discussing FEDERAL PROGRAM funded by FEDERAL MONEY, if the state want the Federal Money it must follow Federal law even if it violates State law. The state do NOT have to have a National Guard, but if they decided they want one to get federal funding for it each state MUST follow Federal Law, even of the underlying State law says otherwise.

The next three arguments are as follows:

* The commonwealth is affected when it provides health benefits because same-sex couples who choose to receive them are tax on those partners’ benefits, which “frankly creates a paperwork nightmare.” She referred repeatedly to the “two-tiered” system the state had to create after 2004 as a result of DOMA.
* DOMA requires that Mass treats individuals differently under public medical benefits like Medicaid and Medicare.
* Mass. cannot inter the same-sex spouses of military veterans in federal military burial locations.

The response to these is simple, that is the cost Massachusetts decided to take on when it decided to adopt a definition of marriage that was different from the Federal Definition. Medicaid and Medicare are again federally funded (Medicaid only 50 %, but if the State wants that 50% the State has to follow ALL of the Federal Rules to get that 50%). Again the Federal Government can decide how it is to spend its money and if the State wants to spend money differently the state has the power to raise taxes to do so out of its own taxes. If the state wants to avoid the paperwork nightmare, change its law to follow Federal Law (Again I am pointing out how I think the Federal Courts will handle this not anything more).

This reminds me of when Casey was Governor of Pennsylvania in the 1980s, he opposed abortion and the Pennsylvania assembly passed a Anti-Abortion law. Governor Casey vetoed it NOT because he opposed it, but because it was clearly violated Roe va Wade. Casey subsequent signed a modified anti-abortion law that addressed his concerns. This later law was upheld by the US Supreme Court, but I am discussing the law Casey Vetoed. Why did he veto it? Casey did NOT want to spend money defending a bill that would be struck down as being unconstitutional. Casey did NOT want to waste the Tax payer's money defending an indefensible law. He refused to grand stand, he wanted a law he could defend in court.

The Attorney General sounds to me that she is grand-standing, by avoiding the issues of standing (Through mentioned in the article) she side step one issue, she then ignores the long history of Federal Restrictions on Spending that the Courts have long upheld (Including the long history of the Federal Courts Striking down discrimination laws based on Federal law when State law clearly not only permitted racial segregation, but in many cases mandated it).

The problem for this Attorney General is DOMA applies to Federal rights only, rights set forth in federal law. If DOMA applied to state law then Attorney General would have a better argument, but the Federal Government did NOT define ALL marriages as between a man and a Woman, but that for FEDERAL BENEFITS ONLY (including tax benefits) marriages for FEDERAL PURPOSES ONLY must be between one man and one woman. That is the hurtle the Attorney General must over come and that article ignores thus hurtles.

[Zenlitened]

63. Try looking at the facts of this case WITHOUT the fun-house-mirror glasses.

[happyslug]

66. I am looking at the facts which include the law, and that is the problem

I doubt it will survive a motion for Summary Judgment, and such a dismissal will be upheld on appeal. I just hate when people waste taxpayer's money, and that is all I see this will be.

[Q3JR4]

55. :-o

Nothing, just :o

Q3JR4
Speechless for once.

[-..__...]

57. Meanwhile...

Coakley, Massachusetts, and our "leaders" in state government continue to take steps backwards to further erode our right to keep and bear arms.

The AGs of 33 other states have filed amicus briefs on the side of the NRA .vs The City of Chicago case that would be a major step in
incorporating the 2nd amendment of the BOR to apply to all citizens.

Can we expect the inclusion of Coakleys support for this fundamental right?

LOL!!! Fat fucking chance.

The DOMA filing is just an example of the two-faced hypocrisy from Coakly making a big splashing noise affirming one right, yet showing nothing but contempt for the 2nd amendment rights of the citizens of the Commonwealth (and by extension, to the rest of the country as well).

[redqueen]

58. Excellent. (nt)

[JerseygirlCT]

61. It will be interesting to watch all those "states' rights" folks turn themselves

inside out to avoid agreeing with this.

Anything but the gay! :sarcasm:

[ibegurpard]

65. This will certainly end up before the Supreme Court

where I wouldn't hold out much hope.