Massachusetts Becomes First State to Challenge Legality of DOMA

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Published: 2009-10-13

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The Commonwealth of Massachusetts v United States

This past July, Massachusetts Attorney General Martha Coakley filed a lawsuit in federal court challenging the constitutionality of the federal Defense Against Marriage Act (DOMA). While there have been several legal challenges against DOMA, the Commonwealth of Massachusetts v United States is the first suit filed by a state.

The lawsuit specifically alleges that the federal definition of marriage as a union between one man and one woman is unconstitutional and that DOMA has interfered with the state’s "sovereign authority" to define and regulate marriage. The complaint also alleges that DOMA has resulted in a denial of rights and benefits to same-sex couples in Massachusetts, including employment and retirement benefits, social security payments and health insurance coverage.

Massachusetts became the first state to recognize the right of same-sex couples to marry in 2004. Since that time, the state has granted approximately 16,000 same-sex marriages.

Currently, only three other states recognize and grant same-sex marriages: Connecticut, Iowa and Vermont. New Hampshire will begin recognizing and granting same-sex marriages in January 2010. Maine may soon join the group as well, depending on the outcome of a November vote. New York and Washington, D.C. also recognize same-sex marriages from other states, but at present do not grant them.

The Defense Against Marriage Act (DOMA)

In 1996, President Bill Clinton signed DOMA into law. The Act served two purposes:

  • It provided a legal definition of "marriage" under federal laws as a union between one man and one woman and defined "spouse" as a husband or wife of the opposite sex
  • It provided that states did not have to give recognition to same-sex marriages granted by other states

DOMA was introduced into Congress following a 1993 decision by Hawaii’s Supreme Court that held the state’s decision to ban same-sex marriages might be a violation of the Hawaiian Constitution. Other states feared that if Hawaii legalized same-sex marriages, they would be forced to recognize those marriages in their own states under the Full Faith and Credit Clause of the US Constitution.

The Full Faith and Credit Clause requires states to give "credit" to the laws and judicial decisions of other states. For example, the federal government has held that this clause requires states to enforce protection orders and support orders issued by other states.

There also was a fear that if same-sex marriages became legalized in one state, other states and the federal government would have to provide the same type of protections and benefits to same-sex spouses as they currently do to traditional married couples, including Social Security benefits and income tax credits.

In order to prevent these outcomes from occurring, DOMA was quickly pushed through Congress and signed into federal law. Following the law’s passage, many states adopted "mini DOMAs" that defined marriage as between a man and woman and explicitly stated that the state would not recognize same-sex marriages from other states. Currently, 37 states have mini DOMA laws in place.

Challenges to DOMA

The Massachusetts lawsuit against the federal government is only the first of many recent attacks on DOMA. In fact, the constitutionality of DOMA has been questioned since its passage. The law has been attacked as a denial of equal protection and due process rights under the federal and state constitutions. It has been argued that the federal government does not have a rational basis for denying marriage to same-sex couples and that the distinction between same-sex and heterosexual couples is arbitrary and discriminatory.

DOMA also has been attacked as an invasion of state rights by the federal government. The Tenth Amendment to the US Constitution leaves all powers not specifically granted to the federal government to the state governments. Traditionally, this has included legal decisions regarding family law issues and eligibility for federal entitlement benefits.

In February 2009, a 9th Circuit judge ruled that DOMA’s prohibition of federal recognition of same-sex spouses legally married under state law was unconstitutional. In the Matter of Brad Levenson, the federal appellate court ruled that a court employee’s same-sex spouse was entitled to be a named beneficiary on the employee’s health insurance and other benefits under the Federal Employees Health Benefits Act (FEHBA).

In addition to the 9th Circuit case, there was another case filed in California challenging Section 2 of the Act, which permits states to disregard same-sex marriages granted by other states. In Smelt v United States, same-sex couple Arthur Smelt and Christopher Hammer argued that their marriage should be recognized in other states. Their case was dismissed in August due to a filing error, but is likely to be re-filed in federal court.

There is also another case out of Massachusetts challenging the federal definition of marriage under DOMA. Gill v Office of Personnel Management et al was filed last March and the government’s response to the case is expected in mid to late September.

The federal government’s reply to the criticisms and legal challenges against DOMA has been mixed. President Obama has long been critical of the federal law, but the Department of Justice has continued to defend any legal challenges against the Act. Some political commentators believe that the only way DOMA can be reversed is through the court system because of the potential political implications for any president who took direct action to repeal the federal law.

Whether or not Massachusetts’ current challenge to DOMA will be successful has yet to be seen. Regardless of the outcome, it is unlikely that the legal challenges against DOMA will stop anytime soon.