Berman & Asbel, LLP

July 2010 Archives

Fed Court strikes US law discriminating against same-sex couples - part 2

In my last posting, I discussed, the case of Gill and LeTourneau et al. v. Office of Personnel Management et al, the case in which a federal judge in Massachusetts struck down the federal Defense of Marriage Act (DOMA) as it applies to creating a definition of who can be married for purposes of programs and status under federal law.  In this posting I want to focus on the companion case, Massachusetts v. Sebelius, a case in which the Commonwealth of Massachusetts itself, as a state, sued the federal government claiming that this federal law violated Massachusetts' rights, as a state, as guaranteed under the 10th Amendment of the U.S. Constitution.   Judge Tauro, in his opinion, went into a history of how marriage fit into the federalist system in the United States.  He noted that the question of marriage did not even come up at the Constitutional convention.  From that time to this day,  the laws of marital status have always been the domain of the states.  While there were attempts in the past to develop a national law on marriage to have uniform rules, these were always rejected.    Judge Tauro found it significant that in the years before the U.S. Supreme Court ruled that state restrictions on marriage based on race were unconstitutional, the federal government never adopted its own definition of marriage but rather, looked to the states.  If a state said a couple was married, then they were married. The Court noted there are state programs for which married couples were eligible where the Massachusetts was being forced by the federal government to apply a definition of marriage which was contrary to its state law and which interfered with its programs which were open to spouses of qualified individuals because there were instances where federal money was involved directly or indirectly.    Such programs included: the state cemetery grants program for veterans and their families; MassHealth - the Massachusetts version of Medicaid.  Where federal money was denied because of DOMA, the state suffered financial loss. The Court was presented with the question of whether DOMA was outside the powers of the federal government and thus in violation of the 10th Amendment.  Under the federal system, the federal government only has powers which are granted to it under the Constitution.  The 10th Amendment provides that any powers which are not delegated to the federal government and which are not specifically denied to the states are reserved to the states or to the people. The federal government argued that DOMA is justified by the Spending Clause in Article I of the Constitution which provides that Congress has the power to impose taxes, pay debts and provide for the common defense and general welfare of the United States.  Judge Tauro agreed that Congress has broad powers to set terms for how it spends money but that power is not unlimited.  Massachusetts argued that DOMA was unconstitutional for two reasons:  First, this section of DOMA was independently barred by the Equal Protection Clause and second, DOMA's treatment of same-sex couples is unrelated to the purposes of Medicaid or the State Veterans Cemetery Program. Judge Tauro found that DOMA violates the equal protection principles contained in the 5th Amendment's Due Process clause by treating some couples married under the laws of Massachusetts differently from other married couples.  Therefore, Congress exceeded its authority under the Spending Clause.  Judge Tauro did not address the issue of DOMA not being related to the purposes of the program since he found the law unconstitutional for another reason. Judge Tauro also addressed the regulation imposed by the federal government on Massachusetts as a state.  By DOMA distinguishing between different married couples, Massachusetts loses funding that is supposed to go to providing these benefits to any married couple. The Court concluded that marriage is an attribute of state sovereignty going back to the beginning of the United States and it was unconstitutional for Congress to intrude upon a state's power to define marriage through a regulatory statute.  Massachusetts, as a state, has the authority to recognize same-sex marriages.  The Congress, in enacting this section of DOMA, violated the 10th Amendment by intruding on a state's reserved power. This is a fascinating application of the 10th Amendment and raises interesting implications politically and for possible future appeals.   It has been common that the concept of states rights is associated with what are considered to be socially conservative positions but this is an area in which social conservatives and states rights advocates will be on opposite sides.  It will be interesting to see what happens in a likely appeal that could go to the U.S. Supreme Court. This case does not address the other important provision of DOMA - that says that states are not required to respect the same-sex marriages of states that permit them.  The question will be whether that will violate the Full Faith and Credit clause in Article IV of the U.S. Constitution which requires every state to respect the laws and judgments of other states.  I believe such a case will come along relatively soon.

Fed Court strikes US law discriminating against same-sex couples - part 1

In cases that I have been watching, U.S. District Judge Joseph Tauro in Massachusetts issued rulings striking down part of the federal Defense of Marriage Act (DOMA).  At issue was the part of DOMA which defines for purposes of the federal government that a marriage is a union of a man and a woman.  Massachusetts is one of several states which has legalized marriage of people of the same sex.  The existence of DOMA created situations in which there were couples who were considered to be married by the state government of Massachusetts but not married by the federal government. The first case was Nancy Gill and Marcelle Letourneau et al. v. Office of Personnel Management et al. In that case, same-sex couples who married under Massachusetts law sued the federal government because they were denied the ability to add or to include their spouses as beneficiaries for various programs of the federal government such as health insurance for federal employees and Social Security benefits and other benefits to which a spouse is generally entitled.   Finding no dispute as to the facts in the case, Judge Tauro considered and granted to plaintiff couples summary judgment in their favor. The Court ruled that DOMA as applied in this case violated the Plaintiffs' rights under the Equal Protection Clause by finding that DOMA has no rational relationship to any legitimate federal government objective.  The asserted objectives in the Congressional record for DOMA were:  (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.  However, in this litigation, the federal government abandoned these reasons as justifications for DOMA.  The Court noted that recent studies indicate that children raised by same-sex couples were just as likely to be healthy and well-adjusted as children raised by heterosexual couples but even assuming that there was some difference, the Court stated that nothing about DOMA would encourage heterosexuals to marry and have children and a desire to encourage heterosexual couples to marry did not justify denying rights and benefits to same-sex couples.  Judge Tauro quoted from an opinion by Supreme Court Justice Scalia and stated that a desire to promote procreation is not a legitimate reason to deny benefits to same-sex couples because, as Justice Scalia wrote in his dissent in Lawrence v. Texas, ability to procreate is not and never has been a requirement for getting married in any state in this nation. Judge Tauro also noted that DOMA cannot encourage heterosexual marriage because the Plaintiffs in question are already married to people of the same sex.  Further, denying benefits to same-sex married couples will do nothing to make marriages of opposite-sex couples any stronger.   The Court acknowledged that preservation of public resources is a legitimate objectives but it was not legitimate to do so by this sort of classification. After abandoning the reasons Congress had stated for passing DOMA, the federal government's argument was that DOMA was somehow intended to preserve a status quo on a contentious issue until there was a national consensus.  Judge Tauro found that this was contrary to the long established rule that marriage status is determined by states.  Judge Tauro noted that in the years before the Supreme Court held that racial laws on marriage were unconstitutional and some states prohibited interracial marriages while most states did not have such a prohibition, the federal government never attempted to enact a statute on the racial characteristics of a married couple. Similarly, Judge Tauro essentially said that the federal government had no business intruding into a question that has always been the domain of the states.  Judge Tauro stated that it should not matter that only a minority of states allow certain couples to be married - the federal government is supposed to accept that if a state says a couple is married, then they are married and it is not for the federal government to set up its own separate standard.  While the federal government has a legitimate purpose in requiring certain benefits be only for spouses, it is not for the federal government to distinguish between spouses of the same sex and the opposite sex where a state has already determined that such persons are married. This ruling is a huge development in marriage equality but it is not complete.  This case is only about DOMA and its application to federal regulations and programs.  Under this ruling, same-sex couples who are married would be eligible to file joint federal tax returns, survivors can claim Social Security benefits and other important rights.  This case does not address the part of DOMA which says that other states which have not legalized same-sex marriage must honor the marriage certificates of couples obtained in states which do allow same-sex marriage.  That will be another case.  It is also likely that this ruling will be appealed and ultimately end up in the Supreme Court. In part 2 of this posting, I will discuss the companion case, Commonwealth of Massachusetts v. Sebelius in which the Commonwealth of Massachusetts itself sued the federal government claiming violation of its state's rights.

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