Massachusetts takes on DOMA

On July 8 Massachusetts Attorney General Martha Coakley filed a lawsuit challenging the federal Defense of Marriage Act (DOMA), the first time a state has challenged the anti-gay law in court. The suit challenges Section 3 of DOMA, which bars the federal government from recognizing same-sex marriages performed lawfully by states. Coakley's suit, filed in the United States District Court, comes four months after a similar lawsuit filed by Gay and Lesbian Advocates and Defenders (GLAD).

"We're taking this action today because, first, we believe that DOMA directly interferes with Massachusetts' longstanding sovereign authority to define and regulate the marital status of its residents, which, by the way, all states have enjoyed until this instance. ... Massachusetts has a single category of married persons, and we view all married persons equally and identically," said Coakley during a July 8 press conference announcing the suit. "DOMA divides that category into two distinct and unequal classes of marriage in our state by denying hundreds of rights and protections to same-sex couples and their families."

Coakley said the state is also suing because it believes DOMA is "a discriminatory law that unfairly penalizes same-sex couples and their families." She outlined some of the estimated 1100 rights that those couples are denied, including equal treatment in the areas of Social Security, income tax credits, employment and retirement benefits, and health insurance.
Coakley said DOMA also puts Massachusetts in a difficult position when it comes to administering programs that receive federal funding. MassHealth, the state's Medicaid program, is funded through both state and federal dollars, but the state cannot seek federal matching funds to pay for residents who are considered eligible for the program only when their same-sex marriage is taken into account. In July 2008 the legislature passed the MassHealth Equality Act, requiring the state to provide equal benefits to married same-sex couples and to assume the extra cost of doing so. Similarly, the federal government has told Massachusetts it may not bury the same-sex spouses of veterans in the state's two Department of Veterans Services (DVS) cemeteries in Agawam and Winchendon.

"That seems to us to not make sense and to be unfair," said Coakley.
The cemeteries have received more than $18 million in federal construction and expansion grants, and according to Coakley's complaint the federal Department of Veteran Affairs notified DVS in 2004 that the federal government would be entitled to demand reimbursement for those funds if the state buried a same-sex spouse in the cemetery. The complaint says DVS has already approved an application from a veteran and his same-sex spouse to be buried in the cemetery when they die.

She said DOMA also forces the Commonwealth of Massachusetts to discriminate against its own employees who are in same-sex marriages. While most spouses of state employees can receive health benefits without paying taxes on them, the IRS requires the state to withhold taxes for benefits provided to the same-sex spouses of state workers.
"DOMA, through its application to the internal revenue code, requires Massachusetts to be part of discrimination against same-sex couples and frankly creates a paperwork nightmare and an unnecessary burden as we have this two-tiered system of bookkeeping for all of these benefits," said Coakely. According to the suit about 550 state employees include their same-sex spouse on their health insurance.

Coakley's suit argues that DOMA violates the Tenth Amendment to the United States Constitution, which reserves all powers to the states except those expressly given to the federal government, and it points out that until DOMA's passage in 1996 states had unchallenged authority to regulate marriage. It claims DOMA violates the Constitution's principles of federalism, and it also violates constitutional provisions that prevent the federal government from withholding money to states as a means of forcing them to violate the constitutional rights of their citizens. The suit asks the court to find DOMA unconstitutional as applied to Massachusetts and to grant an injunction preventing the enforcement of DOMA against Massachusetts. She said the suit could reach the U.S. Supreme Court, but before doing so it must be heard both in U.S. District Court and in the First Circuit Court of Appeals.
Last March GLAD filed its own challenge on behalf of a group of married same-sex couples and widowers impacted by DOMA. Coakley explained that while GLAD's suit by necessity only focused on the specific benefits denied to their plaintiffs - such as Social Security eligibility, equal treatment on federal income taxes and access to federal retirement and survivor benefits - the state's suit is a much broader challenge to all of Section 3 of DOMA. She said it was up to the court whether or not to combine the two suits.

When asked about the timing of the suit Coakley said that during her campaign for the attorney general's office in 2006 she spoke with members of GLAD and other citizens who identified DOMA as a pressing problem. She said after five years of living with equal marriage rights in Massachusetts and seeing the impact of DOMA on the state's citizens, she felt it was time to take action.

"We've had a lot on our plate at the AG's office, but we've thought about this for a while. And I think it's very appropriate after now five years where we've had a chance to see the implications for Massachusetts of same-sex marriage, the number of people involved, and frankly get a handle on what the impact has been, both administratively and on the administration of justice, and we thought long and hard about it. ... We believe that this is as good a time as any," said Coakley.

Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, who was on hand at the press conference, praised Coakley for showing "very strong leadership" on behalf of the LGBT community. She said Coakley's decision to challenge the federal government stands in stark contrast to her predecessor, Tom Reilly, who drew fire from LGBT advocates for certifying an unsuccessful initiative petition to pass a constitutional amendment to ban same-sex marriage, as well as for including anti-gay arguments in the state's brief defending against GLAD's Goodridge marriage suit.

"What a difference an election makes. We now have an attorney general who is strongly on our side and willing to use the weight and the clout of her office to help defend our rights, as well as the right of the state to treat us equally," said Isaacson.

Ethan Jacobs can be reached at [email protected]