Martha Coakley Says Today What Needed To Be Said Thirteen Years Ago

…and that is that the Federal Defense of Marriage Act is unconstitutional. Here, in a nutshell, are the theories advanced by Massachusetts’ Attorney General:

  • Federalism. The Tenth Amendment reserves the power to define marriage to the states. Therefore, the Federal government may not define marriage. If Massachusetts says a gay couple is married, they’re married, and the Federal government doesn’t get to say otherwise. Therefore, Congress exceeded its power when it passed DOMA.
  • Equal Protection. It effects a denial of the equal protection of the laws to same-sex spouses in Massachusetts. An individual who is married in Massachusetts to an individual of the same sex does not have the ability to file a joint tax return and take advantage of the moderately favorable tax rates that an individual who is married to an opposite sex spouse in Pennsylvania could. There is no compelling or even rational reason for the government to have done this. Further, it compels states to treat same-sex spouses differently than opposite-sex spouses, even ones that recognize same-sex marriage, because same-sex spouses are treated as single people for (for instance) Medicaid benefits which are funded by the Federal government and then administered by the several states.
  • Discriminatory Animus. Under the case of Romer v. Evans (1996) 517 U.S. 620, a law passed by initiative was determined to be motivated by a desire to discriminate against homosexuals, and therefore this law violated the Equal Protections Clause. A similar standard should apply to the federal government, and the Defense of Marriage Act was enacted with a legislative intent to treat homosexuals disadvantageously as compared to heterosexuals.

The strongest argument, I think, is the first. It’s also the cleverest. The last argument is the weakest. It’s not clear to me that Congress was motivated by a desire to disadvantage homosexuals so much as it was motivated by a desire to mollify religious conservatives when it passed DOMA. But it’s the middle argument — the one relating to Federally-funded, state-administered programs — that gives standing, and that’s kind of the critical issue in every Federal lawsuit.

Read the whole complaint, styled Massachusetts v. Sebelius, here, courtesy of LawDork.

By the way, it’s not an argument to say that the Equal Protections Clause applies only to the states. The guarantee of equal protection applies to the Federal Government as part of the Fifth Amendment’s guarantee of due process. For this proposition, I refer Readers to the unanimous decision of the Supreme Court in Bolling v. Sharpe (1954) 374 U.S. 497, citing Hurd v. Hodge (1948) 334 U.S. 24: “In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.”

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.