Bil Browning

Massachusetts sues the Feds to overturn DOMA

Filed By Bil Browning | July 08, 2009 5:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: Defense of Marriage Act, DOMA, gay marriage, marriage equality, Martha Coakley, Massachusetts, same-sex marriage

Well this certainly ratchets up the discussion, eh? Massachusetts's federal lawsuit to overturn DOMA relies on a federalist argument while GLAD's case is based on equal protection claims.

The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" for the purpose of federal law as "a legal union between one man and one woman as husband and wife." It does not challenge the constitutionality of Section 2, which provides that states are not required to recognize same-sex marriages performed in other states.

The suit alleges that the law violates the 10th Amendment to the Constitution, which reserves to the states all powers except those granted to the federal government. It also alleges that the law violates Article 1, Section 8 of the Constitution, which limits the power of Congress to attach conditions to the receipt of federal funds.

Massachusetts Congressman Barney Frank's office quickly sent over a statement from the Representative.

"Martha Coakley's decision to join the lawsuit against the part of The Defense of Marriage Act (DOMA) that denies federal recognition of thousands of valid Massachusetts marriages deserves the support and gratitude of all of the state's residents.

"This is an important example of the legitimate use of the law both on behalf of the principle and the rights of tens of thousands of citizens of the Commonwealth.

"I will be particularly interested to see how conservative defenders of states' rights rebut Attorney General Coakley's cogent argument of our rights as a state to defend marriage which has been cast aside by this law that she has challenged."

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c'mon Bil... I know you're pissed about this.

Honestly, I've been so busy today that I didn't really have time to do more than a quick blurb post. I'm sure I'll expand. But for right now as a one off comment -

With GLAD's suit in the works and the Olson suit too, does it really matter about the Mass suit? We're quickly reaching critical mass and the sheer amount of paper generated by the lawsuits alone will be enough to bring the Court crashing down. LOL

I don't like this lawsuit.

Part of its arguments is that states have the right to regulate marriage, which I wholly reject.

Should they be successful in this lawsuit over states' rights, it could set an ugly precedent for the Olson-Boies and other cases contending that marriage ought to be extended throughout the federal level and the state bans struck down.

You are obviously not familiar with the US Constitution or the state laws in the 50 states. From 1789 to 1996, the states have always controlled issues relating to marriage, divorce, adoption, etc. Just because you don't like it doesn't make it illegal. It was only with the passage of the Defense of Marriage Act in 1996 (signed by Bill Clinton) that the federal government became involved in marriage issues.

Robert Ganshorn Robert Ganshorn | July 9, 2009 2:09 AM

Thank you professor for that useful clarification.

Does it still give you any comfort that the lawsuit solidly argues for gay marriage as a state issue rather than a fundamental right, just like interracial marriage?

Edward Fox Edward Fox | July 9, 2009 1:39 PM

There is no "rather" except in your mind. The law suit in question argues that marriage is to be defined by the states not the federal government. The Olsen-Boise suit argues that California's definition is ultra vires because it offends the U.S. Constitution. Since the XIVth amendment, state laws must respect the civil rights protected by the federal constitution; that does not mean that the federal government (i.e. Congress and the Executive Branch) are competent to legislate in those areas.

Also, one reason that it usually takes years and years for a case to reach the Supreme Court is that the Court does not want to go off half-cocked. They like to wait until there are several suits involving the same issue, and then hear them all together, after many courts have read briefs and heard arguments and delivered opinions.

bigolpoofter | July 8, 2009 6:19 PM

Just goes to show there's more than one way to skin atheocrat

I like the lawsuit. It's the moss gathering approach, which seems good for the huge task we face. We should also be going after domestic partnership in the liberal States. With a few more victories, marraige rights might follow naturally.

Let's see. Massachusetts gay and lesbian people have yet again shown that they don't give a shit about the rights of transgender people, spending time and money to do more fighting for same-sex marriage issues rather than getting off of their transphobic asses and actually helping ALL people in MA to have equal rights.

Sorry if I seem not to express fully how pissed I am about this latest piece of crap.

Federalism? Well, that'll be a tough cake to slice. It seems like they're not really asking for the right to determine who's married or not, since they already exercised that. It seems like they want to determine how federal marriage rights are distributed.

Does anyone know of a similar argument where a state argued that it was being interfered with by the federal government because its citizens weren't receiving enough of a certain federal benefit? It seems relevant.