Don Davis

On A Pair Of Victories, Part One, Or, "I DOMA Think Congress Can Define Spouse Anymore"

Filed By Don Davis | July 09, 2010 11:00 AM | comments

Filed in: Marriage Equality, Politics
Tags: Commonwealth of Massachusetts v. Department of Health and Human Services, Defense of Marriage Act, DOMA, Judge Tauro, Law, LBGT, Massachusetts, same-sex marriage

I have to work fast over the next two days to get you this story, but it is a good one.

We are all aware of the Federal Defense of Marriage Act (DOMA), championed by former Congressman Bob "I'm A Libertarian If It Doesn't Involve Your Penis Or Vagina" Barr; we now have two rulings, released on the same day by the same Federal judge, that will render Section 3 of the Act moot, if they're either upheld throughout the appeals process...or if the Obama Administration decides to end that appeals process right now.

There's a lot of ground to cover, and time is short.

Let's get to work.

This will be too much analysis for one story; we'll be, instead, discussing the ruling in Commonwealth of Massachusetts v. Department of Health and Human Services (HHS) today; the second opinion, which decides Gill v OPM (OPM is the US Government's Office of Personnel Management) will be the topic of tomorrow's discussion.

The goal of the Mass v HHS lawsuit (this is a bit informal: we'll frequently refer to Massachusetts as Mass today) is to overturn section 3 of DOMA, which defines marriage as a union between one man and one woman:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Mass has recognized same-sex marriage since the Supreme Judicial Court Of Mass ruled on the issue in 2004; the State alleges, in this suit, that DOMA violates the US Constitution's 10th Amendment...

"...by intruding on areas of exclusive state authority, as well as the
Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs."

For those unaware, here's the text of the 10th Amendment:

"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."

The Federal Government says it can regulate on this issue because of the Spending Clause, located in the US Constitution's Article 1, Section 8:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States"

We have a problem because State definition of marriage causes conflicts when the State partners with the Federal Government in various programs, for example:

--The Veterans' Cemetery Program: the State allows same-sex couple spouses to be buried in certain military cemeteries operated in partnership with the Federal Department of Veterans' Affairs (DVA).

The DVA objects to this arrangement, offers DOMA's definition of "spouse" as the reason why, and says they will recover all the money they have ever transferred to the State under this program if the State agrees to bury these spouses in these cemeteries.

An actual couple has applied under the program and will be affected by all of this.

--There are a variety of implications for the Medicare program as it exists in Mass: for one, income eligibility is calculated differently for same-sex and opposite-sex couples; for another, Mass makes extra Federal tax payments related to the fact that they provide health care benefits to same-sex state worker spouses that are taxed differently than when the same benefits are provided to opposite-sex couples.

The Federal Government tried to dismiss the case altogether by claiming that none of the Plaintiffs had any "standing" before the Court.

Long story short, you have to prove "actual harm" to bring a lawsuit, and the Federal Government position is that all harms alleged by the Plaintiff are hypothetical.

Federal District Judge Joseph Tauro, of Boston, completely dismisses this argument, pointing to actual harms that have already been suffered, including denial of burial benefits and the threat of cash costs to state if Medicare funding is cut off.

"...Standing is not contingent, as the government suggests, on Thomas Hopkins--or another similarly-situated individual--being lowered into his grave at Winchendon...

...Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny..."

Let's move right along to the Constitutional analysis:

If there is an "enumerated power" in the US Constitution's Article 1, Section 8, or "express[ed] jurisdictional elements" in a Statute passed by Congress, then the Federal Government can regulate family law; if not, you have to go to an Article 1, Section 8 "Spending Clause" analysis.

In this case, the Federal Government claims they are entitled to regulate the Federal definition of marriage because of the power under Article 1, Section 8 to provide for the "general welfare" of the Nation.

Judge Tauro, however, notes that not all the harms alleged by Plaintiffs are spending-related: for example, provisions related to the way copyright protection and the Family Medical Leave Act work depend on the marital status of the involved parties.

"In South Dakota v. Dole, the Supreme Court held that "Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the 'general welfare,' (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be 'unrelated to the federal interest in particular national projects or programs' funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion."

The State claims that DOMA fails on several of these 5 elements.

---For example, getting the Federal money that is part of the partnerships we've been talking about requires the State to violate Section 1 of the 14th amendment, which reads as follows:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added by me)

The State alleges they are compelled to deny equal treatment to same-sex couples in order to get Medicare and veterans' cemetery money (the Medicare money alone is about $5.5 billion a year).

The Court agrees with the State's position on the Medicare issue; as a result there is no need to rule on the legally identical cemetery issue.

--Now we need to address the 10th Amendment analysis:

Assuming the appeals continue, this case will go to fairly conservative First Circuit, then to the Supremes. This Court, in the next section of the opinion, anticipates some of the thinking that appeals courts up the line might apply to this ruling:

"In United States v. Bongiorno, the First Circuit held that "a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state's ability to structure integral operations in areas of traditional governmental functions."

The Court agrees that tests (1) and (2) have been met. This, regarding test (2):

"State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution...

...That same-sex marriage is a contentious social issue, as the government argues, does not alter this court's conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government's long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government."

The Federal Government argues that just because they didn't pass DOMA before 1996 doesn't mean they weren't allowed to do so; the Court finds that since the Feds failed the Article 1, Section 8 analysis already, they still fail when they try to use the same argument now.

The Feds also tried to argue that certain immigration cases give them power to regulate definition of marriage; the Court again finds their arguments unpersuasive.

The Feds argue that Massachusetts is an employer, so they have no standing to raise a sovereignty challenge; but the Court again disagrees, and says the State, as a sovereign, is entitled to regulate its employee relations.

Now we move on to (3), the proposition that for a law to violate the 10th Amendment "...it must be of such a nature that compliance with it would impair a state's ability to structure integral operations in areas of traditional governmental functions."

The question of what is a "traditional government function" is highly contentious in the Federal Appeals Courts; some question whether such an analysis can even be performed.

Based on First Circuit precedent, this Court will address the question of:

"...whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government's ability to fulfill its role in the Union and endanger its separate and independent existence."

Judge Tauro finds that DOMA fails this test; points to the same issues we've been discussing (the Medicare and Cemetery partnerships), and says the DOMA definition of "spouse" unacceptably restricts the State from governing itself:

"That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the "core of sovereignty retained by the States," because "the Constitution ...divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid."

That's a fair amount of law, all in one bite, and we have another ruling like this one tomorrow, with lots more "Strict Scrutiny" analysis...but for now, let's stop right where we are, and we'll all meet up here tomorrow.


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