Thursday, May 27, 2010

DOMA Doesn't Do - MA

Having no problem with hypocrisy and inconsistency in recent memory, wingers may be able to deal with the latest challenges to DOMA. Early this month, the federal court here in Boston got the detailed assault via same-sex couples and GLAD. Yesterday, our AG's minions came from the states-rights angle.

That's right, kiddies, that would be moderately liberal Massachusetts invoking a states rights challenge to the Defense of Marriage Act. Would that fall under even the devil being able to quote scripture for his purposes. This transcends irony and travels into the realm of black comedy.

First, you would have thought that Congress with Bill Clinton's eager support would never have passed DOMA. Doing so should have been intolerable to the GOP and blue-dog Dems. After all, it mocked the very compromise, the balance between a central government and the individual states, that enabled the nation from its start. It also is a direct repudiation of the comity that forms the basis for the various states honoring each other's laws and regulations.

Self-defined conservatives have repeatedly and vigorously protected the states against just such federal incursions. After all, it's right there in the Tenth Amendment to the U.S. Constitution — The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

DOMA clearly spits at and stomps all over that separation-of-powers mandate.

That's what the chief of our AG's Civil Rights Division, Maura T. Healey, argued before U.S. District Court Judge Joseph Tauro. As usual, the best coverage appears in Bay Windows. The Globe's version has less insight, but runs through some of the personal effects of the federal law on MA residents.

The major point is that DOMA prohibits MA from regulating its citizen's marriages. While the feds might pretend that defining marriage as only between one man and one woman at the national level should not, Healey pointed out how it does. This includes such absurdities as who's a spouse with the right to rot in a grave in a veteran's cemetery next to a legal-in-Massachusetts husband or wife. Healey made an apt parallel to the concept of the federal government funding white's-only benefits.

For its part, the feds remain half-hearted.
The U.S. Justice Department's Christopher Hall admitted that the Obama administration would like the law to go away, but while it is the law, he would defend it. He had to torture history and logic a bit to do so.

He pretty much came down to claiming that definitions for federal law and federal funding where really, honestly, actually distinct, even if they appears to encroach on states. He responded to Tauro's statement that the states have always regulated marriage by saying the feds do that for immigration enforcement.

For the Tenth Amendment, he said DOMA does not prevent any couple from marrying under a state's laws and regulations. He added that the federal benefits were a different issue.

That is what Tauro faces. Does this massive set of federal benefits from taxes to pensions to Social Security and on interfere with MA's right to regulate marriages? Does DOMA try to trump the Tenth Amendment.

Down on the waterfront, catercorner from the Barking Crab, likely nothing will have final resolution. Both MA and Hall ended with the predictable calls for summary judgment for their sides, with no trial. Even if Tauro were to rule against DOMA, the feds seem asininely committed to appeal, with the case going to the SCOTUS likely.

I like MA's chances at this level of federal court. Certainly Tauro should disregard Hall's comment that DOMA should be repealed and stick with the companion comment that it's the law of the least for this historical moment. Yet, when the feds are so intertwined in this state in services and benefits, how they can whistle and claim they aren't goofing on our marriages is quite a stretch.

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