Constitutional Law

Massachusetts Mounts 10th Amendment Case Against DOMA

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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.

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  1. Mass want to try to explain why the 10th reserves the power to regulate marriage to the states and not to the people?

  2. 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.

  3. Perfect court decision on this:

    DOMA violates the 10th.
    State marriage laws violate the 1st.

    1. The state marriage law does not violate the 1st. Your religion does not apply and cannot be allowed to apply to everyone else. Your rights stop where they would trample those of someone else. Freedom of religion also implies freedom from. For the state to reserve the right to CIVIL marriage just for straight people would be messing with the establishment clause-Waay more dangerous to society as a whole.

  4. 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?

  5. because of course atheists and other non-religious people can’t get married….

  6. 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. 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.”

  8. 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.

  9. I like boobs.

  10. 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.

  11. I’d give my left nut and buy a round for the bar every year if ever the SCOTUS invokes the 10th amendment.

  12. 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.

  13. 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?

  14. I was married by a Justice of the Peace in Georgia. What bearing does the 1st have on that?

  15. Jeebus H on a cracker, but I am just a little slow today.

  16. I don’t see how DOMA is infringing on Massachusetts authority to do anything.

    Read the complaint. The first section is pretty tightly argued.

  17. 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.

  18. 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.

    1. I had to file paperwork with the state and I went to the JP-it’s called a marriage license, most states make you apply for those.

  19. 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.

  20. RC, that is twice this morning you have been preempted. Go get a cup of coffee and come back.

  21. 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.

  22. 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.

    1. Establishment Clause people learn to read the most important part. The state can’t give you completely full free exercise because it would establish a state sanctioned religion. The founders were deists, they weren’t dumb enough to allow that-too many sects with differing dogma, the wars would never end.

  23. 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.

  24. Divorce laws too, especially no-fault divorce laws.

  25. T,

    What would the state (any one, even LA) say if you claimed God as your officiant? 🙂

  26. 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?

  27. 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.

  28. 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?

  29. 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?

  30. 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.

  31. Bill,

    I remember optimism. You’ll barely miss it when it’s gone. 😉

  32. 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.

  33. 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.

  34. 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.

  35. That case arguing for gay marriage in all 50 states, on the basis of the Equal Protection clause?

  36. “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.

  37. Curious verb, mount, in the title. Unintentional, I’m sure

  38. 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.

  39. 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.

  40. 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.

  41. 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.

  42. 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.

  43. 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.

  44. 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.

  45. 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.

  46. 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.

  47. 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?

  48. 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.

  49. 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.

  50. 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).

  51. 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.

  52. 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…

  53. 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.

  54. “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?

  55. 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.

  56. 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.

  57. 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.

  58. 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.

  59. 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.

  60. 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.

  61. 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.

  62. Since when did states have rights?

  63. Since when did states have rights?

    Right up until 1865.

  64. 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.

  65. 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.

  66. 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-}

  67. 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.

  68. The phrase “sovereign authority to define and regulate the marital status of its residents” is creepy beyond measure.

  69. 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?

  70. “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.

  71. 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.

  72. 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.

  73. Reason has been all over this whole “gay marriage” thing for some time.

    What an understatement.

  74. 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.

  75. 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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