Berman & Asbel, LLP

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.

No Comments

Leave a comment
Comment Information
Email Us For A Response

Contact Us

Bold labels are required.

Contact Information

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.


Privacy Policy

attorney image