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Massachusetts Mounts 10th Amendment Case Against DOMA
In a move sure to bring limited-government federalists everywhere into gleeful concert with The Gay, Massachusetts is suing the federal government, alleging that the Defense of Marriage Act (DOMA) violates the commonwealth's 10th Amendment prerogative to regulate marriage. The Boston Globe reports:
The lawsuit ... asserts that DOMA is unconstitutional because it interferes with the commonwealth’s "sovereign authority to define and regulate the marital status of its residents" and also alleges that DOMA exceeds Congress’s authority because Congress does not have a valid reason for requiring Massachusetts to treat married same-sex couples differently from all other married couples.
The Associated Press mentions that, back in March, a gay-rights advocacy group based in Boston also filed a lawsuit against DOMA, claiming that it discriminated against gays by denying them federal benefits available to heterosexual couples.
Thus Western Civilization's long, slow death-struggle continues apace.
Read Massachusetts' entire complaint here.
Reason has been all over this whole "gay marriage" thing for some time. Steve Chapman defended the federalist case for gay marriage, Cathy Young filed a dispatch from the gay-marriage culture war, and Jacob Sullum pointed out the pitfalls of fighting for gay marriage through the courts.
robc|7.9.09 @ 10:31AM|#
Mass want to try to explain why the 10th reserves the power to regulate marriage to the states and not to the people?
|7.9.09 @ 10:32AM|#
In a move sure to bring limited-government federalists
everywhere into gleeful concert with The Gay
Bill, did you hurt your tongue planting it so firmly in your cheek?
Seriously, how long did it take to successfully type that?
Good job.
robc|7.9.09 @ 10:35AM|#
Perfect court decision on this:
DOMA violates the 10th.
State marriage laws violate the 1st.
|7.9.09 @ 10:40AM|#
How does the DOMA "require Massachusetts to treat married
same-sex couples differently from all other married couples"?
As far as I can see, Massachusetts has no standing unless it can
establish that, it has no standing. I can see how a same-sex
married couple, or the surviving spouse of such a couple, might
have standing if another state declined to recognize married
status, citing DOMA. But that does not give the Commonwealth of
Massachusetts standing, does it?
X|7.9.09 @ 10:40AM|#
Perfect court decision on this:
DOMA violates the 10th.
State marriage laws violate the 1st.
That would be badass. I don't see states relinquishing even that
much of their ability to control the minutiae of peoples' lives
without a fight, though.
|7.9.09 @ 10:42AM|#
Sorry for the excess verbiage in the last post. That first
sentence, second paragraph, should have said:
"As far as I can see, Massachusetts has no standing unless it can
establish that."
|7.9.09 @ 10:45AM|#
Actually, SugarFree, tongue and cheek were quite distant during
the writing of this post. I was trying to be optimistic.
In retrospect, though, I suppose I should be glad that the
statement appears to be tongue-in-cheek, because otherwise it makes
me look like a naive boob.
T|7.9.09 @ 10:52AM|#
Man, if Mass can win this one Greg Abbott's staff are going to get sick of seeing my name on letters. I can come up with all kinds of reasons to sue the Fed under this line of argument.
|7.9.09 @ 10:58AM|#
I'd give my left nut and buy a round for the bar every year if ever the SCOTUS invokes the 10th amendment.
The Angry Optimist|7.9.09 @ 10:59AM|#
this sounds like it's going to be a loser. If this:
asserts that DOMA is unconstitutional because it interferes with the commonwealth's "sovereign authority to define and regulate the marital status of its residents"
is the crux of the argument. In what way does DOMA impede
Massachusetts authority? It is free to define and regulate the
marital status of the its residents any way it pleases. DOMA (and
someone correct me if I am wrong) permits other states to regulate
marriage as they see fit, which can include the exclusion of
Massachusetts gays who get married.
I don't see how DOMA is infringing on Massachusetts authority to do
anything.
|7.9.09 @ 11:01AM|#
I'm mystified, here. DOMA does two things, as I understand
it:
(1) It says the federal government won't recognize gay marriage.
That doesn't restrict Massachusetts at all.
(2) It says no state is required to recognize a gay marriage from
another state. That doesn't restrict Massachusetts, either. It can
recognize all the gay marriages it wants, whether performed in
Massachusetts or elsewhere.
Exactly how does DOMA violate Massachusetts' right to regulate
marriage in Massachusetts?
kinnath|7.9.09 @ 11:01AM|#
I was married by a Justice of the Peace in Georgia. What bearing does the 1st have on that?
T|7.9.09 @ 11:04AM|#
I don't see how DOMA is infringing on Massachusetts
authority to do anything.
Read the complaint. The first section is pretty tightly argued.
kinnath|7.9.09 @ 11:05AM|#
The article linked above does not provide details, but other
sources are reporting more information.
Mass's basic argument is that the Feds require them to administrate
Medicare and many other federal programs which require them to use
a different set of standards for determining marriage status than
Mass uses for its own state-funded programs. Therefore, Mass must
discriminate between legally married same-sex and different-sex
couples because DOMA says so.
robc|7.9.09 @ 11:05AM|#
kinnath,
other way around. People who get married as a religous ceremony are
required to file paperwork with the state. And if the state doesnt
agree the people should be married, will either deny it or file
criminal charges against them.
Ministers (or others) who perform marriages without getting the
proper paperwork from the state get in legal trouble too.
|7.9.09 @ 11:06AM|#
Well, cause marriage is interstate commerce. Marriage inevitably
impacts commerce by creating employment opportunities for justices
of the peace, ministers, etc., and of course many side industries
that thrive on the celebration of marriage. Controlling how and
what marriages are legally recognized is necessary to control the
flow of interstate cake and tuxedo rentals.
Duh.
Thread Watcher|7.9.09 @ 11:08AM|#
RC, that is twice this morning you have been preempted. Go get a cup of coffee and come back.
The Angry Optimist|7.9.09 @ 11:09AM|#
I am going to read the complaint, but is anybody else gleeful at the idea that, once again, the Administration is going to have to go into court and make "anti-gay" arguments? Perhaps the gays will learn that the Democrats aren't their friends either.
robc|7.9.09 @ 11:09AM|#
So they are no longer two, but one flesh. Therefore, what God
has joined together, man must never separate. -- Matthew 19:6
Marriage licensing laws violate the first by not allowing free
exercise of Matthew 19:6.
T|7.9.09 @ 11:11AM|#
I was married by a Justice of the Peace in Georgia. What
bearing does the 1st have on that?
I was married by a JP in New Orleans pre-Katrina. I tell my wife
sometimes that nobody can prove we're married, so I don't even have
to get a divorce.
Legally, your marriage can be performed by an invalid officiant and
still be good as long as you believed the officiant and the
marriage was good at the time, and have acted in good faith since
then. IOW, if you thought you were married, you are.
robc|7.9.09 @ 11:13AM|#
T,
What would the state (any one, even LA) say if you claimed God as
your officiant? :)
The Angry Optimist|7.9.09 @ 11:14AM|#
ARGGH CONSTITUTIONAL LAW makes for hurting! Brainmeats drying
up!
Superficially, however, I don't see Massachusetts winning on this.
After all, if Congress is not permitted to define what is and is
not Full Faith and Credit, what's to stop a state from denying a
valid judgment from another state? Does that mean that your state
has to accept a driver's license from another state, without
requiring a new resident to get a new license?
The Angry Optimist|7.9.09 @ 11:19AM|#
and if the argument is that federal programs require that
Massachusetts administer federal programs differently, well, I
actually (as was said earlier) don't see how Massachusetts has
standing. They aren't required to accept federal money (akin to the
DUI/Federal Highway money argument), and the Supreme Court has made
it clear that, within limits, "strings attached" to funding is not
coercion of the states' tenth Amendment rights.
Now, I don't necessarily agree with that, but that's the
way it is.
Zeb|7.9.09 @ 11:21AM|#
I don't believe that IRS tax forms require you to specify your gender. So what is to stop a gay-married couple from filing a joint federal tax return? I know that it violates DOMA, but a same sex couple who is married in MA is just as married as anyone else. Since there is no gender line on the tax form, how can the IRS determine that there is a violation?
|7.9.09 @ 11:22AM|#
I just find it ironic that a bunch of northeast liberals all of s sudden believe in federalism and states rights. Where'd that sentiment come from all of a sudden?
T|7.9.09 @ 11:23AM|#
What would the state (any one, even LA) say if you claimed
God as your officiant? :)
Texas allows you to declare an "informal" marriage (aka common law)
by signing a document which essentially says "we decided we're
married", so I guess you could use that to avoid the requirement
for God to sign the marriage license.
kinnath|7.9.09 @ 11:30AM|#
So here in the great state of Iowa, the income tax forms take
many short cuts and instruct the filer to grab data directly from
the federal return.
Life will be interesting next spring for same-sex couples legally
allowed to file jointly on their state taxes, but not on the
federal return.
GrrrlRomeo|7.9.09 @ 11:31AM|#
The federal government treats Massachusetts married couples
differently. The federal government recognizes the straight
marriages in Massachusetts but not the same sex ones. So the
federal government doesn't respect Massachusetts' definition of
marriage.
DOMA is not one piece. One piece is in Title 1 of US code and one
piece is in Title 28 of US Code. The lawsuit is going after the
piece in Title 1. It doesn't just do two things, it actually is two
things.
Also, the gays are very aware the Democrats aren't our friends. We
just know who can be pushed and who can't. This is politics, not
friendship.
|7.9.09 @ 11:33AM|#
According to the WSJ, DOMA prevents MassHealth, (health
insurance program for low-income residents) from covering gay
couples as married because it is partly funded by federal dollars.
Though as TAO stated, based on precedent it may mean they have to
choose between accepting federal dollars or ignoring state
law.
I personally think this suit is great.
what about|7.9.09 @ 11:35AM|#
That case arguing for gay marriage in all 50 states, on the basis of the Equal Protection clause?
Steven Hall|7.9.09 @ 11:37AM|#
"I just find it ironic that a bunch of northeast liberals all of
s sudden believe in federalism and states rights. Where'd that
sentiment come from all of a sudden?"
Behold the power of butt sex.
Peter|7.9.09 @ 11:41AM|#
I just find it ironic that a bunch of northeast liberals all
of s sudden believe in federalism and states rights. Where'd that
sentiment come from all of a sudden?
Politicians are hypocrites all the time.
|7.9.09 @ 11:52AM|#
Mass's basic argument is that the Feds require them to
administrate Medicare and many other federal programs which require
them to use a different set of standards for determining marriage
status than Mass uses for its own state-funded programs.
Ah, so its not recognition of marriage per se, but administration
of programs as required by the feds.
Holy crap, but if the argument is that any federal program that
imposes requirements on the state violates the 10th Amendment, then
the cat really is totally out of the bag.
I hope they win this, because it will mean that any requirement
imposed by the feds as a condition of funding is
unconstitutional.
Funny that gay marriage is what brought this out of the woodwork,
when Mass has been taking orders from the feds for years and years
on just about every topic under the sun. But, whatever.
kinnath|7.9.09 @ 11:59AM|#
Holy crap, but if the argument is that any federal program
that imposes requirements on the state violates the 10th Amendment,
then the cat really is totally out of the bag.
The argument is that Mass has defined "marriage" since the start of
the union. Along the way, the feds began to impose mandated
responsibilities on the states. Then, after the fact, the feds
prohibit the state for using its own definition of marriage,
thereby requiring the state to discriminate against some of its
citizens.
So the state isn't arguing that the original mandates on
unconstitutional, just the requirement to use a federal definition
of marriage.
I, Kahn O\'Clast|7.9.09 @ 12:02PM|#
The case looks compelling. The Supreme Court is likely to rule narrowly that DOMA does violate the Constitution on these grounds, forcing the recognition of same-sex marriages for purposes as specified here for states with same-sex marriage. It is unlikely to impact any other legislation proactively but could set a marvelous precedent.
X|7.9.09 @ 12:02PM|#
So the state isn't arguing that the original mandates on
unconstitutional, just the requirement to use a federal definition
of marriage.
That is unfortunate, though not surprising, in its specificity.
kinnath|7.9.09 @ 12:04PM|#
This would be different than the MassHealth issue where the
state could just decline the partial federal funding.
Medicare is a federal program, so the feds can define who is or is
not eligible for the program.
However, the feds make the states responible for administering the
program. So Mass argues that the feds are forcing them to disregard
its own laws to administer the federal program.
I doubt Mass will win, but one outcome could be that Mass is
exempted from administering the federal program and the feds would
have to establish their own agencies to administer it.
|7.9.09 @ 12:04PM|#
I just find it ironic that a bunch of northeast liberals all
of s sudden believe in federalism and states rights. Where'd that
sentiment come from all of a sudden?
Same place where federalist Republicans come out in support of
DOMA.
robc|7.9.09 @ 12:05PM|#
kinnath,
But wouldnt that same argument apply to, for example, drinking age
and federal highway funds.
States defined "legal drinking age" before they ever received
highway funds. The feds redefined "legal drinking age" to their own
definition and forced the states to use it.
I dont see a difference. I think just about every federal
requirement fits this pattern.
T|7.9.09 @ 12:07PM|#
Holy crap, but if the argument is that any federal program
that imposes requirements on the state violates the 10th Amendment,
then the cat really is totally out of the bag.
I don't think the argument is that the program requires the states
to do something. The argument is the fed programs require Mass to
engage in discriminatory practices and create two separate classes
of marriage and married couples. The same argument, IMHO, could be
used to cut through affirmative action like a chainsaw.
|7.9.09 @ 12:08PM|#
The argument is that Mass has defined "marriage" since the
start of the union. Along the way, the feds began to impose
mandated responsibilities on the states. Then, after the fact, the
feds prohibit the state for using its own definition of marriage,
thereby requiring the state to discriminate against some of its
citizens.
Considering they changed the definition of marriage after the
federal mandates came into effect, I don't see how that holds
water. According to the current MA jurisprudence the state was
already itself discriminating when the federal mandates took
effect, so how can the mandates be the cause of the
discrimination?
|7.9.09 @ 12:10PM|#
Same place where federalist Republicans come out in support
of DOMA.
From a certain POV, the DOMA actually supports federalism. Were it
not for DOMA, every state would essentially be forced to recognize
gay marriages.
T|7.9.09 @ 12:11PM|#
tates defined "legal drinking age" before they ever received
highway funds. The feds redefined "legal drinking age" to their own
definition and forced the states to use it.
Yeah, and some states (LA) told the feds to go piss up a rope for a
number of years, which is why the interstates in LA were such crap
for the better part of the 90s.
The Angry Optimist|7.9.09 @ 12:12PM|#
even though it will "narrowly drawn" not to have the effect RC
Dean rightly posits it should have, practically speaking, robc is
correct: Massachusetts is not required to administer federal
programs; the federal government cannot "impound" state and local
officials to further a federal scheme. It was in one of the Brady
Bill cases. So Massachusetts must be voluntarily (probably for a
piece of the action) administering the programs, and voluntarily
administering them discriminatorily. This is Massachusetts wanting
to have its federal dollars with no strings attached.
Again, I don't have a problem with that, because I think the power
of the purse that Congress has is de facto coercive and
unfair (when they lord it over the states).
The Angry Optimist|7.9.09 @ 12:13PM|#
From a certain POV, the DOMA actually supports federalism. Were it not for DOMA, every state would essentially be forced to recognize gay marriages.
I disagree, unless you think that Full Faith and Credit should be
written out of the Constitution. Anything Congress chooses to
exclude or include in FF&C, I think, doesn't really have
implications for the "federalist system", but FF&C is part and
parcel of that system.
MNG|7.9.09 @ 12:22PM|#
It's an odd approach; I can see a person that is affected by DOMA bringing a case, but for many of the reasons discussed here it seems odd for Mass to do so...
|7.9.09 @ 12:26PM|#
Essentially, the fed position here will be same as it is on the
drinking age: Hey, we're not telling you that you can't have gay
marriage/a drinking age of 18. We're just saying that if you have
it, you can't have any of this big pot of money over here.
The DOMA case is even stronger for the feds: they are saying in
this case that they don't even care if you have gay marriage, you
just can't recognize gay marriage when spending this particular pot
of money.
If the Court rules that linking funding to these kinds of
conditions is unconstitutional, then its a new federalist ball
game. That will be a hard ruling to contain to gay marriage, once a
principled precedent is established.
Zeb|7.9.09 @ 12:26PM|#
"Were it not for DOMA, every state would essentially be forced
to recognize gay marriages."
Aren't states already essentially forced to accept marriages from
other states? Or could another state refuse to acknowledge any
marriage performed in Massachusetts?
KipEsquire|7.9.09 @ 12:30PM|#
One wonders whether the Massachusetts Attorney General believes that, say, the federal minimum wage is an incursion of "state sovereignty" and therefore a Tenth Amendment violation.
The Angry Optimist|7.9.09 @ 12:32PM|#
Zeb - yes, DOMA allows the states to *not* recognize gay
marriages.
Myself, I think that you can either read FF&C as a tautology
("Anything Congress says it is, it is, and anything they say it
isn't, it isn't") or you can read in-line with the original meaning
of the Commerce Clause, which was to essentially create a "free
trade zone" of commerce. If FF&C applies to final, valid
judgments, it should apply to final, valid license issuance. The
persons to whom the licenses were issued *should be*
irrelevant.
|7.9.09 @ 12:34PM|#
If FF&C applies to final, valid judgments, it should
apply to final, valid license issuance.
I've never understood why my driver's license and marriage license
are recognized in every state, but my concealed carry license
isn't.
|7.9.09 @ 12:35PM|#
One wonders whether the Massachusetts Attorney General
believes that, say, the federal minimum wage is an incursion of
"state sovereignty" and therefore a Tenth Amendment
violation.
Not to mention Davis-Bacon laws controlling the wages paid on any
project with federal funding, perhaps a closer analogy to what Mass
is complaining about here.
|7.9.09 @ 12:49PM|#
One wonders whether the Massachusetts Attorney General
believes that, say, the federal minimum wage is an incursion of
"state sovereignty" and therefore a Tenth Amendment
violation.
I doubt he particularly cares. MA's minimum wage is higher than the
federal limit.
kinnath|7.9.09 @ 1:00PM|#
States may decline federal funding for building highways -- that
should be clear.
Medicare is an individual entitlement. I'm not sure that a state
would be free to decline to participate in this program or
adminstrate the distribution of this entitlement.
Perhaphs one of the many laywers that frequent H&R could weigh
in on this.
The Angry Optimist|7.9.09 @ 1:02PM|#
kinnath - I cannot imagine that the states are doing this because they are forced into doing it: like I was saying earlier, there is a constitutional precedent from SCOTUS that the federal government cannot effectively "impound" the states or their officials into a federal scheme. It has to come with some kind of "quid pro quo". So, if it is the case that the states are administering a federal welfare program, it is almost guaranteed that the states are doing so in return for federal dinero.
|7.9.09 @ 1:23PM|#
Medicare is an individual entitlement. I'm not sure that a
state would be free to decline to participate in this program or
adminstrate the distribution of this entitlement.
States don't administer Medicare (which is for old people). That is
a purely federal program.
Each state has its own Medicaid program (which is for poor people),
which has to meet certain requirements to be eligible for federal
matching funds. The state is perfectly free to run its own medical
assistance program for the poor without federal matching
funds.
If what Mass is saying is that the federal requirements (as applied
to gay marriage) for matching Medicaid funding are a violation of
the 10th Amendment, then:
(1) Why aren't the Medicaid funding requirements other than those
applied to gay marriage also a violation of the 10th?
(2) Why aren't requirements for federal funding other than Medicaid
also a violation of the 10th?
If Mass wins, there will be a tsunami of cases filed by states to
remove federal funding requirements.
|7.9.09 @ 1:26PM|#
RC, I think it's kind of like the 2nd Amendment issue. If it's not a hot-button issue, no one gets bent out of shape if the Feds step on some toes. But if it's one of the Big arguments, it draws attention and allows the movement to go forward.
kinnath|7.9.09 @ 1:39PM|#
States don't administer Medicare (which is for old people).
That is a purely federal program.
Each state has its own Medicaid program . . .
See this is what happens when engineers start talking about public
policy 8-}
Mad Max|7.9.09 @ 2:06PM|#
The Massachusetts Complaint has an 'Addendum of federal laws
regulating marriage,' listing the areas of federal legislation
which supposedly need to be modified in the interest of
Massachusetts' '10th Amendment' rights. These areas of legislation
are federal employee benefits, federal bankruptcy laws, the federal
Housing Act, the federal Consumer Credit Protection Act, federal
copyright law, federal education loans, federal tax laws, the
federal COBRA law, ERISA (the federal pension law), the federal
Family and Medical Leave Act, federal veterans' benefits, the
federal Medicaid, Medicare and Social Security programs, the
federal Public Safety Officers' Benefit Program, the federal child
support enforcement legislation, the federal Older Americans Act,
the federal Railroad Retirement Act, federal court privileges, and
the federal HIPPA law (relating to medical records).
In a generous spirit, Massachusetts' complaint says that 'This
action does not address the application of DOMA in states that do
not recognize marriages between same-sex couples.'
I assume, of course, that this means Massachusetts politicos will
fully defend the right of other states to define marriage as
consisting of the union of one man and one woman.
db|7.9.09 @ 2:10PM|#
The phrase "sovereign authority to define and regulate the marital status of its residents" is creepy beyond measure.
T|7.9.09 @ 2:27PM|#
The phrase "sovereign authority to define and regulate the
marital status of its residents" is creepy beyond
measure.
What's so creepy about that? You don't want to be married or
divorced at the states' whim?
|7.9.09 @ 3:36PM|#
"However, the feds make the states responible for administering
the program. So Mass argues that the feds are forcing them to
disregard its own laws to administer the federal program.
I doubt Mass will win, but one outcome could be that Mass is
exempted from administering the federal program and the feds would
have to establish their own agencies to administer it."
Wasn't there a case a year or two back where the court said that a
Catholic Adoption agency had to place kids with gays, because not
doing so violated California's discrimination laws? IIRC, after the
ruling, the adoption agency opted to close down, which was really
sad because it specialized in hard to place kids.
To me, the two cases seem similar.
|7.9.09 @ 4:09PM|#
These areas of legislation are ....the federal HIPPA law
(relating to medical records).
I can't speak to the others, but I am an expert on HIPAA, and I can
tell you with some degree of confidence that HIPAA that the terms
"spouse", "husband", "wife", "married", and "marriage" do not occur
in those regulations.
The only area where it might come up is around the issue of who is
your "personal representative", the person who stands in your shoes
for purposes of making medical decisions on your behalf. On that
issue, HIPAA defers entirely to, wait for it, state law.
It gets better. HIPAA actually requires that a personal
representative be treated as the equivalent of the patient, with
all the rights to the patients medical records that the patient
has. If state law gives gay spouses the same rights as hetero
spouses, then under HIPAA the gay spouses are personal
representatives, and HIPAA requires, not prohibits, requires, that
gay spouses have the same rights to each other's medical records as
hetero spouses.
|7.9.09 @ 4:17PM|#
You know how you can tell lawyers from laymen? It's how they
spell HIPAA. I see it as HIPPA in news articles all of the
time.
A woman
married a dog in Ghana. Slippery slope? Discuss amongst
yourselves.
#1 LIBERTARIAN ISSUE!!!!!!11!!|7.9.09 @ 5:13PM|#
Reason has been all over this whole "gay marriage" thing for
some time.
What an understatement.
Joemaflage|7.9.09 @ 11:48PM|#
It is time we end the powerful strings the feds use to run our
states. Most of these federal programs give great incentives to
create laws that are destructive to our liberties. The feds do not
care what the outcome of thier laws are only that it is done thier
way to get OUR tax money back.
Look at the mess our family courts are over tihs federal incentive
funds.
I hope thye win this so other states wake up and fight back.
Nemo|7.10.09 @ 4:24AM|#
Now all we need is Tim Cauvenaugh coming in here exasperated that some of the commenters thought he was gay, and the circle will be complete.
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