Academic

Massachusetts AG Brings Suit to Declare DOMA Unconstitutional

By Calvin Massey

Martha Coakley, the Massachusetts Attorney General, has filed suit in Boston's federal district court, seeking a declaration that section 3 of the Defense of Marriage Act is unconstitutional.   Read the Complaint here.   Section 3 of DOMA stipulates that for federal purposes only a marriage between a man and a woman is valid.  In the complaint Massachusetts argues that this section interferes with its residual sovereignty under the Tenth Amendment to regulate marriage, and contends that section 3 also: (i) operates to force the state to administer federal regulatory programs, (ii) imposes an unconstitutional condition upon state participation in federally funded programs because section 3 requires Massachusetts to violate the federal equal protection clause, and (iii) imposes a condition on the state's receipt of federal funds (recognition of only traditional marriages) that is insufficiently related to the federal programs and purposes. 

The residual sovereignty argument is without merit under current constitutional law.  Even though Garcia v. SAMTA  has been eroded by New York v. United States and Printz it remains axiomatic that the courts have "no license to employ freestanding conceptions of state sovereignty."  While marriage has certainly been a subject of state regulation rather than federal regulation, DOMA's section 3 operates only to define marriage with respect to federal law.  That is hardly a wholesale displacement of state sovereignty to regulate marriage.  

Massachusetts's remaining arguments center on two particular federal programs: federal funding of health care and veterans' cemeteries.  Mass Health, the state's health-care plan, is partially funded with federal money, but the receipt of that money is conditioned upon compliance with DOMA's section 3.  Unlike the Brady Bill's background check, which was at issue in Printz, the state is not mandated to do anything.  It can take federal money and comply with DOMA, or it can do without federal money and treat same-sex married couples the same as opposite-sex married couples.  The same principle applies to veterans' cemeteries.  Massachusetts operates two veterans's cemeteries and has accepted federal money for their maintenance.  A condition upon receipt of that money is that it must be repaid if the state fails to operate the cemeteries exclusively as veterans' cemeteries.  Federal law explicitly states that the only people who can be buried in such cemeteries are veterans and their "spouses."  Relying on DOMA's section 3, the Veterans Administration has ruled that a same-sex spouse is ineligible for burial unless they were also a veteran.    

The contention that the conditions imposed on funding of health care and veterans'  burials -- limiting spousal eligibility to traditional married couples -- is insufficiently unrelated to the federal programs is also without much merit.  South Dakota v. Dole  is the leading case on the relatedness criteria, and it gives little guidance on the point.  It is surely rational for Congress to specify which spousal relationships qualify for federal assistance, and that is probably all that Dole requires. 

Massachusetts's best argument is that DOMA's section 3, implemented through the funding conditions noted above, is unconstitutional because it requires the state to violate the federal equal protection clause.  That may be so, but it isn't so at the moment.  Yet, as a vehicle to force the courts to consider whether DOMA's section 3 violates the equal protection clause, this suit may be efficacious.  Whether DOMA does or does not violate equal protection is, however, another matter.  

Update:  Matthew Franck, at NRO's Bench Memos, notes that the Mass AG's complaint fails to address the standing question.  Franck cites Massachusetts v. Mellon as the obstacle.  I'm not so sure he's right on this point.  After Massachusetts v. EPA the state may have parens patriae standing to vindicate the quasi-sovereign interest of securing the benefits of federal constitutional law to its citizens.  I wrote on this topic in State Standing after Massachusetts v. EPA, 61 Florida L. Rev. 249 (2009).

Full post as published by The Faculty Lounge on July 09, 2009 (boomark / email).