Mass. A.G. Martha Coakley
From the Attorney General’s office:
Attorney General Martha Coakley will announce the details of a lawsuit that her office has filed challenging the constitutionality of the federal Defense of Marriage Act (DOMA) as it relates to Massachusetts. Currently, 16,000 married same-sex Massachusetts couples are unfairly denied federal benefits under this act.
Here’s the Complaint (pdf).
Here’s the AP article.
Coakley is only going after section 3 of the Defense of Marriage Act and has made clear that the state itself suffers additional injuries in addition to those raised in Gill, the lawsuit brought by the Gay & Lesbian Advocates & Defenders.
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THE NEWS CONFERENCE: AG Coakley introduces Jonathan Miller, Civil Rights AAG, and Maura Healey, Civil Rights Section Chief, who are with her.
Coakley begins by saying that the words of John Adams, in Massachusetts’ constitution, were determined in 2004 to mean that marriage must be available to all couples regardless of sexual orientation. After five years of living that experience, today, Massachusetts filed a lawsuit in federal District Court challenging Section 3 of DOMA.
Coakley gave three reasons for the suit:
- DOMA created a federal definition of marriage, directly interfering with Massachusetts’ longstanding soverign authority to determine who it determines are “married” under federal law.
- DOMA is a discriminatory law.
- DOMA places Mass. in the position of choosing whether to adapt its programs to fit federal law, but if it does so, it limits the ability of Mass. residents to have full equality under Mass. programs.
Section 2, the Full Faith and Credit portion of DOMA, is not challenged.
Among the commonwealth-specific harms Coakley cited are:
- The commonwealth is affected when it provides health benefits because same-sex couples who choose to receive them are tax on those partners’ benefits, which “frankly creates a paperwork nightmare.” She referred repeatedly to the “two-tiered” system the state had to create after 2004 as a result of DOMA.
- DOMA requires that Mass treats individuals differently under public medical benefits like Medicaid and Medicare.
- Mass. cannot inter the same-sex spouses of military veterans in federal military burial locations.
The lawsuit, per Coakley, is seeking an injunction against the federal government prohibiting it from applying DOMA to Massachusetts.
DOMA also violates the Spending Clause, the suit alleges. One clear limitation is that Congress cannot compel the states to violate its states’ citizens state constitutional rights. This is interesting because it is something that is far more effectively raised by a state than any private party.
Asked about the GLAD Gill lawsuit, Coakley said that the state’s lawsuit is brought on behalf of all citizens, so it is in that sense broader. “They [the GLAD suit's lawyers] bring similar and related issues as to the impact” of DOMA.
Consolidation with the Gill suit is a possibility they have considered, as she said judges “often put together” cases containing similar issues.
As to why now and why Massachusetts, Coakley noted, “We now have a record of five years” of implementing marriage equality and seeing the development of the “two-tiered” system.
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REACTIONS: From my perspective, Coakley has done a great job of advancing the reasons why the state — as the state — has additional burdens to bear because of DOMA beyond the burdens that individual couples bear. As such, this suit does have a slightly different flavor than the Gill challenge.
GLAD has said that it “applaud[s] the Commonwealth’s move to protect legally married same-sex couples from the harms caused by federal discrimination.”
HRC also has issued a statement, saying, in part:
This lawsuit, which names the United States and the Secretaries and Departments of Veterans affairs and Health and Human Services as defendants, marks the first time that a state has challenged the federal government’s discriminatory treatment of its LGBT citizens.
Chairman Barney Frank says: “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.”
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Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Go Martha — and go MA!
Her points are sensible, down-to-earth and implicate the lives of thousands of Americans. She shows that marriage discrimination nationally causes real harm to Americans. It will be incumbent on those who want to keep this discrimination on the books to prove that gay marriage is harmful — and they will have a hard time doing so.
Wow. IANAL so maybe it’s just unbridled optimism; I would think a challenge from the state of Mass. is a really strong play.
“Coakley has done a great job of advancing the reasons why the state — as the state — has additional burdens to bear because of DOMA beyond the burdens that individual couples bear.”
So? A federal policy limiting naval bases to states with coastlines obviously “burdens” the Midwest — is that a Tenth Amendment violation?
The federal government establishing policies for itself simply does not implicate federalism. Due process or equal protection, perhaps. But not federalism.
The entire lawsuit ought be thrown out for lack of standing.
P.S. Does the Massachusetts AG think a federal minimum wage is also an unconstitutional intrusion upon state sovereignty?
In a world where there weren’t joint state-federal programs, I might agree with you. But, we don’t.
As Coakley said and I noted, the Spending Clause is the method by which Coakley asserts that the federalism principle is being violated. That has nothing to do with the other examples that you cite.
A great bit of news. A state can use arguments such as these where a private citizen cannot — and I hope there will be exact figures in the actual brief.
However, I continue to worry about the danger of a Runaway Scalia-led Court ’settling the problem’ by outlawing all gay marriage, and would very much appreciate hearing from anyone who can convince me it is not a danger.
Hooray for MA! But I’ve got a question:
When I read article 3 of the US constitution, I see the sentence “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”
Why then is this case filed in district court? I saw that the jurisdiction claim in the complaint was based on 28 USC 1331 and 28 USC 1341(a)(2) (which seem to send virtually _all_ cases to district courts). The commonwealth of MA is a party here, so it should have sent the case to the supreme court as a result of its (rarely used) original jurisdiction.
What am I missing here? Is plain text no longer reliable?
“prup” obviously knows nothing about the law or the Supreme Court.
I was wondering the same thing, so I did a little looking. Turns out that the Supreme Court doesn’t care for original jurisdiction all that much, so it appears that they have interpreted the original jurisdiction clause in a limited manner.
The Court refuses to exercise jurisdiction where the suit is actually filed to benefit particular individuals, which here might apply to the same-sex couples within Massachusetts. Also, the Court has the discretion to reject jurisdiction where there is another suitable forum, and would almost certainly exercise that discretion in order to allow the lower courts to develop the record.
See, for instance, State of Ga. v. Penn. R. Co., 324 U.S. 439 (1945).
That is why I have asked someone to explain why such a scenario is impossible. (After all, even Marbury was Marshall’s effort to avoid declaring that Jefferson was required to accept John Adams’ ‘midnight judges.’ Both Griswold which we rightly applaud, and that great ’self-inflicted wound’ of the Dred Scott decision were examples of the Court going beyond the case at hand to announce general principles. And I see no problem in imagining Scalia as Taney from his past decisions.)
As for SCOTUS, if the case arrived — assuming Sotomayor is ‘with us’ we’d have the usual division with Kennedy — who wrote Lawrence but (afaik) announced he would have been with the minority if the case had involved gay marriage — being the deciding vote.
Assume he held for DOMA. It would be Roberts who assigned the decision. I’d guess he’d duck it himself, I’d guess — he’s no Earl Warren — and he certainly wouldn’t assign it to Thomas. And Scalia has shown a willingness to establish new law in the guise of seeking ‘original intent.’
Unless his brief were so strong that it turned off Kennedy and caused him to reconsider and reverse his vote — which has happened many times, true — I don’t see what would stop Scalia from issuing such a ruling — but I continue to hope that someone will prove ’schmidt’ right.
And were he to so rule, it would require an Amedment to change it, or a change in the personell of the Court that seems unlikely soon — the judges that are ailing or sick are on ‘our side’ and I don’t see Obama — a student of FDR as i’ve mentioned — attempting a ‘court packing’ plan — even though it would be legal to change the number of seats on the Court — as happened with the Davis Court, i believe –it would be wildly unpopular.
Which judge got the assignment?
I have read the assertion, but am unable to find a specific citation — which is why I said ‘afaik.’. In Wikipedia — not always reliable, certainly — the discussion on Lawrence says the following, but it is marked “citation needed”:
“the logic of Lawrence casts considerable doubt on laws restricting marriage to opposite-sex couples, notwithstanding the not-so-subtle suggestions in both the majority opinion and in Justice O’Connor’s concurrence that the court is not willing to listen to this argument, and that some of the justices (Kennedy and O’Connor specifically) would switch sides to vote with the dissenters in this case if the issue of gay marriage came before them.” The concurrence is cited at 539 US 538, but there is no citation to the original decision.
If in fact this is inaccurate — thank you. I still worry on almost any case if Kennedy will ‘come up heads or tails’ but I’m glad to know the coin isn’t weighted.
When Lambda Legal was preparing for the Romer case, Chief Justice Roberts was working in private practice for a law firm that required its attorneys to do pro bono work. So Roberts worked on the Romer case (I don’t know if he had a choice about it or not). In addition to aiding in the briefs, he helped in the moot court in preparing for oral argument. He took the position of Justice Scalia and offered questions and assistance for the plaintiffs. So he’s intimately familiar with the equal protection arguments presented in Romer. The following cite gives more information on his work on the case:
http://www.abpnews.com/index.php?option=com_content&task=view&id=611&Itemid=118
So, I’m wondering, since he was willing to help the plaintiffs in Romer whether or not he would be disposed to an equal protection argument in a gay marriage case. Any thoughts, anyone?
Breaking news — there are naval bases in landlocked states. They use inland naval bases to (among other things) test airplanes, missiles, and radar systems. (And to allow influential Members of Congress to keep their constituents employed and happy, but that’s a different issue.) Pick a better analogy.
It’s about time! State’s Constitutional rights have long been a point conjecture. Not just in this case but in many others as well. It seems the government is quite happy to allow the States to have their say, which is why we have a jumble of so many rights from State to State. For instance, if two people can marry, at what age may two people marry, and so on. As long as the States don’t step on the National Government’s toes, it is happy to go along with the hodge-podge. But when something rubs the Government the wrong way, they step in and make things even more stupid. I’m one heterosexual who can’t wait for the Supreme Court to approve gay marriage and extend all the National rights of married people to gays! Good Luck!
IANAL (although I am 1/3 of the way there)
Usually, the way that the original jurisdiction clause is interpreted isn’t when a state is A party, but when states are both parties. So when one state sues another, the Supreme Court “hears” the case. And when SCOTUS hears a case under original jurisdiction (if I understand the process correctly), they usually appoint a special master to actually sit, and make rulings of law and fact. SCOTUS then rules based on briefs and the special master’s rulings.
You realize, of course, that this is going to be yet another opportunity for people to scream “HE’S KILLING US ALL, THAT EVIL BARACKSTABBER!!!” when the administration defends the existing law.
I have mentioned my ‘nightmare scenario, but no one has directly taken it on, so let me lay it out and — hopefully — someone out there will show me the flaw in my reasoning. (I have never said, I insist, that this is certain or probable, merely that it is a ‘reasonable possibility.’ For fellow baseball fans, the Mets winning the National League East classifies as a ‘reasonable possibility’ — doubtful, but we can hope — the Nationals winning it would be an unreasonable possibility — it could happen, but it might convince me of the reality of Divine Intervention.)
Okay, here is my argument:
1:) A decision merely stating that DOMA is Constitutional would be annoying, but not disastrous, since it could be overruled legislatively
2:) A decision holding that DOMA is constitutional because ‘marriage involves one man and one woman’ would be disastrous, and would be difficult — but not impossible — to overturn legislatively — and would require more support than we currently have
3:) A decison that invalidated all same sex marriage laws — and rulings — on those grounds would be catastrophic
4:) It is ‘reasonably possible’ that Scalia would issue such a ruling were he to command the majority of the Court. (This is the arguable point, of course. Such a ruling would be against law, reason, and common sense ‘but when’s that ever stopped him before.’ And commanding the majority might be difficult — but less so if age or illness created a vacancy, in which case there could be a 4-1-3 decision with Kennedy ‘concurring in the result but not the reasoning,’ thus leaving the Scalia opinion the ruling of the Court.
5:) Such a ruling might be made more difficult if Obama’s DOJ went ‘further than necessary’ in their defense of DOMA. (This is also a guees that I would like argued against by someone with more knowledge.)
All I want, really, is to be ‘talked down.’ Anyone?
Where and when did Justice Kennedy announce that in Lawrence he would have decided with the minority if the case had involved gay marriage. I just re-read the Lawrence opinion and I didn’t find such language. Can you assist me? Thanks.
Both opinions — Kennedy’s and O’Connor’s — in Lawrence expressed a distancing of their opinion from any decision related to marriage. Lawrence, though, has been cited in marriage cases since, as Scalia signaled in his Lawrence dissent that he knew it would. Neither Kennedy nor O’Connor stated they would dissent in a marriage case, but they did make it clear that Lawrence was not a marriage case.
Thanks. Understand, the ‘runaway brief’ I have been afraid of is something I want to be convinced is a simple case of over-analysis and over-worrying, or even pure paranoia. But I have seen it as possible and felt it necessary to mention since no one else — perhaps for good reason — was even suggesting it.
No thoughts yet on this point; Roberts has not really had to confront claims of gay equality as a judge yet.
Anthony Kennedy’s enthusiastic embrace of the cause surprised me (and pleased me) when it manifested itself in Romer. So your hope that Chief Justice Roberts will be sympathetic to this cause is not entirely unjustified. On the other hand, we also don’t have any reliable clue how Sotomayor will vote and her anticipated vote could turn out to be a somewhat less pleasant surprise.
I’m pretty confident that Alito will be voting with Scalia and Thomas, though.
We do have one clue about Sotomayor, that the one luxury she insists on retaining is an apartment in the far West Village. She couldn’t feel that way if she were personally uncomfortable around LGBT people.
Even more, unless she walks around blind and deaf, she has seen gay married couples, heard arguments from the next table when she buys breakfast whether ‘we should go up to Connecticut and get married now, or wait until New York passes marriage equality.’
None of this means she will rule in our favor, but it does imply her ruling will not be based on either prejudice or unfamiliarity.
Although Judge Sotomayor hasn’t ruled on any gay cases, her record on privacy cases is very good. Also, she defended the rights of gays as a law student at Princeton when several students dorm room was ransacked. See the following article for information about this. For a straight woman to defend gays in the 1970s was quite unusual. Of course, that doesn’t mean she would support gay causes, but at least she’s not hostile as Alito, Scalia, and Thomas are.
http://rodonline.typepad.com/rodonline/2009/05/sotomayor-spoke-out-against-harassment-of-gay-princeton-students-in-1976.html
I worry about Kennedy for a SSM case because his attitude to me often seems paternalistic. In Romer, he assumed the posture of nobly defending a minority group from animus. In Lawrence, he waxed lyrical: “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” (No, just like heteros, gay people also can have one-night stands. Really.) On the other hand, maybe his romanticism will make him supportive of legal recognition for those personal bonds that actually ARE enduring.
Prup overstates somewhat, but I think it’s an inferrable conclusion from the end of Kennedy’s opinion for the Court (BTW, once again, how is it that people didn’t freak out by having SSM show up in the same paragraph as “pedophilia,” or prostitution?):
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Quickly! Get those magic ponies delivered!
I’m not going to go point for point, but I think you may want to re-read the complaint filed. There is no way the court is going to leap from the narrow question presented to somehow invalidate all same-sex marriage laws.
Your interpretations of the Griswold and Scott rulings are very exaggerated, I think.