New DOMA Lawsuit is the Most Exciting Yet

We've been in a kind of legal blitz on the Defense of Marriage Act recently. But, in the three lawsuits filed, yesterday's challenge might have the highest chance of success.

The first of these challenges, Gill et al. v. Office of Personnel Management et al., filed in March by the Massachusetts-based group GLAD, argues that same-sex spouses are denied specific monetary benefits from public programs like social security under DOMA.

Not long after, Smelt v. United States of America was a filed: a lawsuit that attacks DOMA on every front possible including its violation of due process and equal protection, the right to free speech, right to privacy, right to travel and its discrimination on the basis of sex and sexual orientation.

But yesterday, the Attorney General of Massachusetts filed a complaint that chiefly argues DOMA's violation of state's sovereignty over the definition and regulation of marriage.

The genius of this complaint is that it takes a conservative argument -- that liberal states should not be permitted to impose their tolerance and acceptance of homosexuality on the rest of the country -- and turns it around to benefit a state that really pioneered gay rights in the U.S.

Even a conservative justice would support the notion that federal encroachment over those few areas where states have sovereign jurisdiction is unconstitutional. In this case, that principle supports, at the very least, limiting the application of DOMA when it affects state programs with federal funding.

If a conservative justice chooses to oppose the argument put forward by Massachusetts Attorney General Martha Coakley, then their logic could be used in the future to justify federal enforcement of equal rights on those states that oppose same-sex marriage. If state's no longer have absolute jurisdiction over marriage, a liberal government can interfere with a conservative state's policies.

Coakley's lawsuit will likely be joined with Gill et al. and the two will proceed as the most viable challenge to DOMA (many think that Smelt threw too many punches and doesn't have the same institutional support as the Massachusetts suits since the lawyers involved were not working closely with Lambda Legal and other LGBT litigation groups with long histories in the gay rights movement).

It also has the support of Senator John Kerry. Kerry, a lawyer by training, argued way back in 1996 in the Senate, that DOMA was unconstitutional.

His reasoning then, that the full faith and credit clause would be threatened by a law that refused to recognize marriage rights potentially given by some states and not all, has not been popular in modern law suits. Perhaps this is because the trend on hot button social issues has been towards state sovereignty and full faith and credit undermines that sovereignty.

Hence the genius of Coakley's argument.

We can all look forward to the slow, grueling process that is the march to the Supreme Court. And hopefully, by that time, a number of new states will join the same-sex marriage party.

But Coakley's suit is significant. It is a smart, novel attack on a law that is clearly unconstitutional, but also has the support of a waning, yet still significant portion of the American population.

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Comments

[medwreck]

Why don't they just strengthen the full faith and credit argument by getting to via the interstate commerce clause. If a one or both members of a married or civil union possessing gay couple are prevented their right to travel to any of the states in search of the best job opportunities then they are being denied (dare I say, one of the privileges or immunities) a major component of citizenship. Besides, the SC should overturn it as a blatant invasion into states rights to issue legally binding contracts.­..especial­ly given that all the states have been proven competent to issue them for hetero couples (and incidentally grant them full faith and credit).

[hallowellboy]

Thank you Massachusetts. It's unfortunate that you must fight the morally bankrupt Federal Government to ensure the civil rights of all your citizens. Obama ran for president as the change candidate and promised to overturn DOMA. Instead, he's become a typical wishy/washy political hack. He's enthralled with the Pope, buddies around with a number of corporate religious leaders that preach hatred against Gay Americans, and does nothing to end intolerance and discrimination. I'm seeing a one term wonder in the White House.

[fern501]

I am hetero not by choice.
Tax money whomever you vote for won't change a thing they're after your money period.
A few things I've noticed about same sex marriage, the first country to allow it was the Netherlands and guess who opposed it? Right "the good Christians", the second was Belgium, no need to guess the Roman Catholic church opposed it. Now in India they just decriminalized homosexuality and the people to oppose it are the Hindu, the Muslims and the Christians, forget Mumbaï Muslims and Hindu are brothers against the homosexuals, and who opposes gay marriage in Amerika? Who is governing Amerika? As for Obama, my mother use to say "even when a country is totally bankrupt they'll still fight tooth and nail to be president, who would want to become president of a bankrupt company?"
The answer lies in my first sentence you'll pay for it...
DADT is a great thing in case they reinstate the draft to go protect the interests of rich Afghan landlords, one can always claim to be gay and skip it.

The only good thing I know is going to happen is that despite Obama and the priests with their obsolete beliefs same sex marriage will prevail and maybe one day the poor of America will not be discriminated anymore because they're not poor by choice but by government decision.

[Puma80]

This is very brave of the State of Mass to undertake. However Massachusetts would have a little more credibility as a Beacon of Modern Marriage Laws, if their Alimony Laws weren't still stuck in the 1850's.

http://www.huffingtonpost.com/elizabeth-benedict/divorce-arianna-style-c-2_b_228771.html

[Romulus]

@ Matt Carter (if you're still around)

I'm curious about something and perhaps you can clear this up for me. Is SCOTUS allowed to base a decision on something that is not included in a complaint? Specifically, as I've mentioned, it seems to me that since the federal government does not refuse to recognize a marriage where the bride is under 16, which in many states is illegal, it cannot refuse to recognize a SSM performed in Mass.

I don't see that included in the "Commonwealth" complaint. Can SCOTUS rule that way anyway or must it stick only to the points raised in the complaint?

[jukesgrrl]

Best avatar EVAH!!!

[livinCalDemtbubble]

We are trying to move ahead with GLBT civil rights with no support from the President and his Cabinet. The President's popularity is falling. I think it is largely because he no longer speaks to people's need for hope and change in these difficult times. He no longer appears to be the courageous principled leader that he presented as a candidate. DOMA and DODT are issues where he could have taken leadership, and reminded American's of the profound importance of minority civil rights. So here we are, trying to move our civil rights through the courts. GLBT civil rights are an "outsider" cause in this country, and Obama has kept us there. Although trying to move civil rights through the courts is wonderful, our indignation must be more viscerally seen and heard. We need to develop our own elected leaders who can passionately state our case to the country, locally and nationally.

[Samnchgo]

I'm extremely divided about how I feel about this. On the one hand, I'd love to see DOMA tossed out on it's unconstitutional ass. However, I feel very strongly that CONGRESS (and particularly the Dumb-o-crats) need to vote to overturn this idiotic law. After all, DOMA only passed because it had strong Democratic support during the Clinton Administration. Congress created the problem; Congress needs to fix it. If the courts throw it out, then it lets the Democrats in Congress off the hook for a law that many of them supported and voted for in the first place. They shouldn't be given such an easy pass. It's time that the Democrats grow a spine and take a stand for civil rights again -- instead of just paying lip service to civil rights.

[goldcoastsailor]

Drugs, marriage, drinking ages, abortion, speed limits, are all issues of state sovereignty. None of this is any business of the federal government. It's called libertarianism and it is consistent with the constitution.

[AntsyAmerican]

I'm actually against "states' rights" when it comes to civil rights for Americans. Let states have sovereignty over truly local matters, but it's NUTS that a citizen's civil rights (up to and including execution by the state) depend on the whims of other citizens that happen to reside in the same state. Of course, the Constitution disagrees with me.

[GuidoVanHorn]

be careful what you wish for...If DOMA is found unconstitutional as a states right issue...it opens up the states right issue in overturning Roe V. Wade etc...

[quiviran]

RvW isn't much of an issue for the gay community. They tend not to get pregnant, except very deliberately after some serious thought. Actually, not a bad idea for the straight community.

[joemondo]

In what way?

States already have latitude within abortion rights.

[Terry Mcintyre]

I am hoping that DOMA falls before the "full faith and credit" clause of the Constitution. States have different rules about heterosexual marriage - age of consent, degrees of consanguinity - which do not prevent various states from recognizing marriages consummated in other states. In fact, some states still recognize the ancient common law right to marry without obtaining a license from the government.

I also hope - as an organizer with Pink Pistols - that concealed-carry permits issued in one state are recognized as valid in others, on the same grounds. That way, a couple which is able to defend themselves in their home state would not be deprived of that right when they cross a border to a state which is more hostile to their rights. That falls under the "privileges and immunities" clause, I would think.

[dsws]

The problem with Full Faith and Credit is the rest of the paragraph: "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. " So in cases of a bigoted federal law like DOMA, ff&c can't do much against it.

[dsws]

I don't think the SCOTUS will be terribly concerned with consistency. I don't expect much from the perpetrators of Bush v Gore, or their Bush-appointed successors.

On the other hand, Boies and Olson seemed sincere, and they would know better than I whether there are five votes there for marriage equality.

[NoSandwiches]

True. Bush vs Gore proved that the majority are Republicans first and Justices second. Their decision flew in the face of every prediction based on their previous rulings--they said their decision was not to be used as precedent even though they previously said that they opposite should always be true and they favored federal over state rights. I cried when I read Supreme Injustice by Dershowitz.
Bush went on to undermine our standing in the eyes of the world. The Supreme court had already undermined my faith in justice and fairness.

Only the nomination and election of Barack Obama restored my faith in America. I did not believe it possible.

[GearRatio]

All too true. The whole conservative "States' Rights" mantra never was anything but a "code phrase" (along with "Cultrural Differences" and "Law and Order") for supporting Jim Crow laws. It gets ditched pretty quickly when the shoe is on the other foot....

[been2there]

The real force behind DOMA and homophobia is the belief that homosexuality is a freely made choice. The medical evidence rules that out. The same people who so firmly cling to "defending marriage" distrust science and carefully close what passes for a mind; the courts should accept the physiological and inherent characteristic of sexual orientation as being equivalent to skin color; DOMA is unconstitutional.

[Willow712]

The homophobes believe what they want to believe, and if you give them a logical argument, they start yelling, "slippery slope!" DOMA hopefully will be repealed for the entire country shortly, anybody see Patrick Murphy, Sen. on Rachel Maddow yesterday? he's got 161 votes "For",and needs a bit over 200 for it to pass. He believes that since Congress passed DOMA, its up to Congress to repeal it.

[MrHeathen2u]

Patrick Murphy was talking about repealing DADT, not DOMA.

[hark]

Of course DOMA is unconstitutional Blatantly so. The problem is, with four troglodytes on the Supreme Court, all you need isa fifth showing up with a hangover and not thinking straight, and there goes the ballgame. So gay civil rights has to go through a labyrinthine process just to achieve what the Constitution says they are entitled to.

It's disgusting what the right wing has done to this country.

[ssfahrer]

DOMA should be declared unconstitutional-- so that the government can get OUT OF THE MARRIAGE BUSINESS entirely. 'Marriage' should only be recognized by churches or other such RELIGIOUS institutions-- not by a secular government!

In fact, I would argue that the IRS should eliminate the "Married filing joint" and "Married filing separate" tax return statuses and replace them with the only necessary statuses for such people: "head of household" for the primary breadwinner (defined by gross income earned) and "single" (for the non primary breadwinner defined likewise). The only problem is what to do with all those tax deductions, credits, etc. for children of marriages that would no longer be recognized by government­s....

[commchf]

It doesn't matter if the parent(s) are married. The credits/deductions apply anyway. It's one of the biggest lies about Bush's tax cuts, 75% of the "cuts" were actually "credits" for minor children. Credits are what we used to call welfare. The other 25% (the real cuts) went to the wealthy.

I keep telling my neighbor that since my taxdollars are his childs welfare I want the kid to mow my lawn. The grass is pretty tall.

[Tuckerndfw]

I agree with you other than separate tax codes for income earners.

Why distinguish between the two?

Been a long time since I looked at the tax code, but the last time I checked, taxpayers are allowed to claim deductions for anyone who is financially dependent on them. Irrespective of relationship or marital status. There are age restrictions but they are modified by health or student status.

If not, it can be easily re-written to allow for dependent exemptions.

No problem at all. And eliminates the entire controversy. Except for the SS part and I'm hopeful we can alter that to only include dependents rather than "spouses."

[Ted Seto]

In the long run, I think it unlikely that DOMA will survive.

1. The principal motivation for DOMA was a dislike of homosexuality and homosexuals. There is no evidence that traditional heterosexual marriage is any stronger in states that do not recognize gay marriage (like Rhode Island) than in states that do (like Massachusetts). In other words, there is no evidence that recognizing gay marriage does anything to undermine traditional heterosexual marriage. We just don't like gays.

2. Although it was argued that recognizing gay marriage would cost the federal government money, a subsequent study by the Congressional Budget Office when Congress was controlled by Republicans concluded that the opposite was true -- that recognizing gay marriage for federal purposes would actually raise significant revenue.

3. I have analyzed DOMA as applied to the federal income tax and concluded that the CBO study probably *underestimated* the costs to the federal government of failing to recognize gay marriage. See Seto, The Unintended Tax Advantages of Gay Marriage, 65 WASH. & LEE L. REV. 1529 (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=850645. Significant federal tax planning opportunities are available to gay couples that are denied to heterosexual couples, solely because of DOMA. We tax gays less because we don't like them.

4. In the long run, hating people is not a durable foundation for law. It's also not nice.

[viewfromtheleft]

I took the time to go through your complete article and I am quite impressed by the thoroughness. Practicing in a community property state I would love to see an equivalent piece focusing exclusively on the community property issues. While you spend some time on "income splitting" you, there are a host of issues which evolve from 'severing' community property which could, arguably change some of the results you've forecasted.

Thanks for the scholarly work.

[obtusegoose]

In response to Tuckerndfw comment discounting that gay couples have are being discriminated against in hospitals:

Hospitals have commonly asked if a person visiting is "family" or just a "friend". A gay person tells the staff that they want to visit their partner. Depending on how homophobic the staff or the hospital administration is, the partner may not be allowed to visit their loved one. I have read stories of gay people showing a medical power of attorney form and still being refused visitation. Check out this story if you doubt that this is going on in our country:
http://www.lambdalegal.org/news/pr/lambda-legal-sues-florida.html

[Tuckerndfw]

A gay person can claim he is family just as easily as anyone else. He does not need to say, "I want to visit my 'partner.'­"

Sounds like a Roy Rogers movie, "Hey, podnuh, how about we ride over yonder and see what them injuns is up to?"

Lame, lame, lame. . .

Anyone who claims he was denied visitation based solely on his sexual orientation is not telling the entire truth.

Lambda is not a credible source. It has a specific agenda and the truth is not part of that agenda.

[tb92]

You are wrong. People are denied visitation based on sexual orientation all the time. I watched it happen. I can not imagine many things more horrible than being denied access to the person you love when they need you most. It's evil. It has to change.

[PlaceboStudman]

In other words you don't have a problem with someone lying to hide their relationship with someone they love. You don't see the shame and loss of dignity of having to lie and hide who we are as people who love someone of the same gender. And, yes, there is a difference between the love of blood relatives and the love of a romantic partner, and there is no reason, other than your own discomfort, for someone to have to lie about who they are or their relationship with another person.

[SUIGENEROUSLA]

There is no credible source for you is there?

And you're complaining about the use of the word partner?! Come up with a better one.

Under the law, you are related to your spouse. I am not related under the law to my huusband/spouse, partner, significant other or whatever you deem it appropriate for me to call him. I do not feel that I must lie to see my (partner) in the hospital.

Do not speak of thing you do not understand, or walk a mile in my shoes before you shoot your mouth off.

[JustMyWords]

Assuming, of course, that the rest of the family doesn't say, 'Oh, hell, no, he isn't family."

And see just how well it works when it's time for the next of kin to make a decision. Your spouse is considered to legally be your next of kin, and has the right to make decisions for you if you are incapacitated. Not married, it goes to the parents if they are living. No parents, it goes to siblings, or to children.

Of course, if you're not married, and your parents refuse to acknowledge your relationship, then you could be a world of hurt.

People aren't making up these concerns. I've seen them happen too many times myself. Nothing like needing your friends to distract Mom and Dad long enough for your partner to make it in for a quick visit. That's just how everyone wants to deal with life if they're hospitalized.