Thursday, July 09, 2009

DOMA Suit Surprisingly Solid

Our AG Martha Coakley brings tomorrow into the present. In Gone with the Wind's fictional world, the original fiddle-dee-dee gal was Scarlet O'Hara, epitomized in her "I can't think about that right now. If I do, I'll go crazy. I'll think about that tomorrow."

Until today, I have never been a fan of Massachusetts attorneys general. Don't get me started on their lack of courage or decisiveness. However, Coakley's suit in federal court seeking relief from the effects of the Defense of Marriage Act (DOMA) is a masterwork.
References: The suit (PDF file) is here. A transcript (RTF file) of Coakley's announcement is here. Page citations in comments refer to the suit.
The overview is that for Massachusetts, Coakley charges that:
  • Section 3 of DOMA is unconstitutional because it defines marriage federally and interferes with states' established rights to do so.
  • Article One, Section 8, Clauses 1 (the spending clause) forces Massachusetts to violate either DOMA's effects or its own equal-treatment laws.
  • DOMA sets up two distinct, unequal classes of married couple and is thus unconstitutional.
What the suit does not do is mess with DOMA Seciton 2, which lets states continue to discriminate against marriages in other states that would not be legally solemnized there. In fact, the suit pushes the comity and full-faith-and-credit clause to its most basic states' right grounding. The suit forces nothing on anyone and in effect demands the same from the feds.

For those of us on the marriage equality side, there are numerous legal giggles hidden in the complaint. The underlying theme is the same as anyone would find in the misnamed pro-family groups' messages. That is, those who would forbid and hinder same-sex marriage are demonstrably anti-family, anti marriage and anti-children. They discourage legally solemnized commitments and rob couples and their kids of the protections and benefits other assume and get.

Thus it is with the main points of the suit. The only purposes are to hinder, harm and hamper homosexuals. On a governmental level this takes the form of mandating state laws and procedures. For families, DOMA serves only to punish and deprive them.

Using his predictable script yesterday, Mass. Family Institute President Kris Mineau claimed DOMA had been court vetted already and found constitutional. He called yesterday's filing "frivolous" and said, "We believe the suit will have no credibility in the federal courts."

Perhaps he should read it and reconsider. The feds sent an early message that there's some beef here. The immediate response from the Department of Justice through a two-sentence statement by Spokesman Chris Miller was that the President "supports legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. We will review this case."

Cascading Harm

Moreover, the Globe cites Northwestern's law professor Andrew Koppelman as saying DOMA has not been tested constitutionally before. However, he think's GLAD's version of challenging Section 3 has an even better chance of proving unacceptable discrimination. That suit entered the system four months ago.

  • The suit makes three charges (p. 2) — In enacting DOMA, Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.
  • It notes that marriage is not one of the powers the Constitution reserves for the federal government. Rather, since the origins of the nation, states have had the authority to define and regulate marriage. (p.8 and elsewhere)
  • Its main call for injunctive relief is for the return of the right to "define marriage within [Massachusetts'] own boundaries. (p. 3)
  • It claims that "DOMA prospectively invalidated marriages between same-sex couples for purposes of all federal laws, whether enacted before or after DOMA," (p. 8) thus unconstitutionally usurping state powers.
  • It points to the disconnect of one part of DOMA (Section 2) supporting states rights by freeing states from having to recognize SSMs solemnized elsewhere while interfering with Massachusetts' own definition and regulation of marriage. (p 9)
  • It specifies a wide variety of benefits and protections that DOMA effectively precludes legally marriage SS couples from receiving. (pp. 11-21). In addition to the widely published tax, Social Security, pension and insurance topics, it also covers burial in veterans cemeteries within the Commonwealth.
Unlike Mineau's self-comforting fantasy, the realities of both suits are very specific and real. In fact, yesterday's version cites real damages to both SS families and the Commonwealth. Those are the charges that courts, particularly federal ones, do not dismiss out of hand.

Whether GLAD's or Massachusetts' suit comes up first and resolves the issues for the other will take some months. Meanwhile tomorrow has become today on DOMA.

Locally, there is speculation that Coakley filed this now with an eye toward Ted Kennedy's Senate seat when it becomes vacant. She is ambitious and plenty smart, so that's a reasonable ball for her to put in play. Nationally too, this emphasizes the calls from here and many places for President Obama to drive the overturning of DOMA, which he says he wants. When the damages are listed so clearly in these two suits, doing that may be a little easier.

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Anonymous said...

When DOMA originally passed, I was proud that both of my senators (Kennedy and Kerry) as well as my then-representative (Joe Kennedy) voted against it. (I'm fairly sure Mike Capuano would have as well had he been in the seat at the time.)

If Coakley did file it for potential future advantage, that just underscores the overall shift in politics since the original DOMA vote; when "going for votes" is something that you do by making pro-SSM moves, the momentum is on our side.

John Hosty-Grinnell said...

When I read your articles I get the feeling I should just make website your satellite. Great job on this, I've put a link to it on John's article reporting the same since we only gave it a blurb.