Posted by Brad @ 3:15 pm on July 8th 2009

It Has Begun: The Fight for Marriage Equality Goes Federal

Once Iowa fell, it became clear to me that the next fight in the marriage equality war was going to be on the federal level, one way or the other. States will continue to either lift their civil exclusions of same sex marriage, or amend their constitutions to enshrine them, as per their own political and legal realities, but now that the marriage status of a same sex couple can vary wildly from state to state—from “you can’t even sign hospital visitation rights private contracts” ala Virginia to “full equality” ala Massachusetts, it just isn’t really tenable—or perhaps more accurately, not really comfortable—to have a class of citizenship that fluctuates that much once you cross a state border.

As Andrew Sullivan, who works in D.C. but vacations a few months of the year in Rhode Island, put it the other day, he’s married at his work home and divorced in his vacation home. In one house he is seen as being part of a civil partnership, where he and his partner have rights and privileges which are intertwined. In the other, he is solely an individual entity, with his partner having no more rights or civil connections to his life than any stranger off the street. You can see the problems inherent in that right off the bat, but as a further exercise, add children, say, to the equation, and the problems inherent in this arrangement are obvious (and yes, libertarians, having the state out of the marriage business altogether solves all problems, but unfortunately that’s not where we are here).

Perhaps in a more confederate society this would work, but as currently organized, we are not much of a confederate society any more, and a lot of people, judges and lawmakers included, are going to find it exceedingly obnoxious that you are literally a different kind of person, a different class of citizen, in the eyes of the state, depending on which side of a state line you stand.

So I posited some months back that the next battleground is going to be DOMA. Either the equality movement was going to push lawmakers to challenge it legislatively, or the courts were eventually, one way or the other, going to have to further reconcile the federal-state interplay of marriage laws more completely than they ever have before, now that the issue is being pushed.

It looks like the path to challenging DOMA is going to be the latter, and as before, Massachusetts leads the way.

Massachusetts, the first state to legalize gay marriage, sued the U.S. government Wednesday over a federal law that defines marriage as a union between a man and a woman.

The federal Defense of Marriage Act interferes with the right of Massachusetts to define and regulate marriage as it sees fit, Massachusetts Attorney General Martha Coakley said. The 1996 law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.

The lawsuit, filed in federal court in Boston, argues the act “constitutes an overreaching and discriminatory federal law.” It says the approximately 16,000 same-sex couples who have married in Massachusetts since the state began performing gay marriages in 2004 are being unfairly denied federal benefits given to heterosexual couples.[…]

Before the law was passed, Coakley said, the federal government recognized that defining marital status was the “exclusive prerogative of the states.” Now, because of the U.S. law’s definition of marriage, same-sex couples are denied access to benefits given to heterosexual married couples, including federal income tax credits, employment benefits, retirement benefits, health insurance coverage and Social Security payments, the lawsuit says.

The lawsuit also argues that the federal law requires the state to violate the constitutional rights of its citizens by treating married heterosexual couples and married same-sex couples differently when determining eligibility for Medicaid benefits and when determining whether the spouse of a veteran can be buried in a Massachusetts veterans’ cemetery.

“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,” the lawsuit states.

Note the crux here, and the two likely lines of argument.

The first is going to be pretty simple, I think, and it’s the one that will be most easily understood, or at least championed, by both sides. Namely, the federal government and the federal constitution does, of course, give broad powers to states to define their own laws. But, particularly when you add in a few hundred years of constitutional amendments (the 14th anybody?) and dominant judicial precedent (sexuality is almost certainly going to be enshrined as a protected class alongside race and religion as more and more supreme courts fall that way), that deference to a state’s right to make its own law does not really extend to a state making laws (even at the state constitutional level) that violate the federal constitution as, in my estimation, anti-gay marriage measures do, as presently defined. To put that another way, a state has relatively broad discretion to make laws as they see fit on matters where the federal constitution is silent. But civil rights, the most basic desire to not create different classes of citizens, is not an issue, at all, where the federal constitution or courts are silent. There has been a very tenuous federalism on this point for awhile now, but that only stands because the direct reckoning has been avoided or side-stepped. That situation is no longer tenable, and trying to avoid the issue is no longer possible.

The second tract of argument is perhaps less intuitive simply because it doesn’t lend itself to as easy a distillation, but the crux of this argument, and the one that MA is apparently basing their challenge on, is that the federal government has already made marriage a de facto area of federal jurisdiction. Many conservatives are going to argue that states challenging for federal recognition of marriage are acting on federalist impulses. That it should be left entirely to the states. But as Coakley points out, that’s a misnomer, because it is already a federal matter and the federal government has already taken it out of state hands, which is what makes the federal position vis-a-vie DOMA untenable. Because all kinds of civil benefits at the federal level are dependent on marriage status, so, in a nutshell, by not acting and choosing to leave it to the states, the federal government is already taking a de facto position, one in favor of the anti-marriage equality position. That can get a little theoretical, but in essence, it is not the granting of marriage rights that is the heart of the matter, but rather the denial. In any case, it still requires a legal defense on the federal level, because by accepting the decision of anti-same sex marriage states and using that as a basis for denial of federal benefits, the federal government is inherently taking a position, that being that marriage rights can federally be denied to same sex couples. Think of the federal government, in that sense, as one more state, one that everyone lives in even as they live in states-within-that-state. The federal government can no more avoid having to defend the denial of benefits according to its federal constitution than Iowa can avoid having to defend the denial of benefits according to its Iowan constitution. DOMA, in that sense, doesn’t in any way answer the question being asked, namely whether the federal government can defend, according to its governing principles, having sexuality be a class that confers on it different kinds of rights for different kinds of people. It doesn’t matter what states say, because these are federal rights and benefits being denied. So that question has to be answered on its own merits first and foremost, despite what politicians who want to fall back to the “I’ll let the states decide” feint may say. You can let the states decide so long as it has no bearing on federal execution of laws. But that is patently not the case in terms of marriage.

My guess is we’re going to keep seeing what we have been seeing—state-by-state scraps on the marriage question—for the next few years. But each time a state settles the question for itself, the immediate next question falls straight in the federal government’s lap, and there is simply put no way the federal government can avoid answering for much longer. In a few years time, the state-by-state battles will necessarily fall away as the ball winds up in the federal court. It looks like Massachusetts, relatively under the radar, has already fired off the opening salvo.


  1. And, in case it’s not already clear, I just can’t see any reasonable case the federal government could make to deny marriage benefits to same sex couples in Oklahoma, say. They might be able to get away with it in the instance where a gay couple can’t get married in Oklahoma (i.e. they can’t ever get standing in the first place), but what of the Okie couples that get married in Massachusetts on vacation? To put that another way, an Okie couple that doesn’t get married at all is as not married in OK as they are in MA. But an Okie couple that gets married in MA is suddenly in two entirely separate classes of citizenry depending on the state they happen to be in at the moment. The federal law, in other words, gives more legal weight to the anti-gay marriage side.

    (one thing I’m not 100% on—is there any law that says you have to be married in the state in which you reside? Like, if you’re a heterosexual couple, do you have to be married civilly in Oklahoma if you live in Oklahoma to qualify for federal marriage benefits? I’m pretty sure not, but I’m not 100%)

    The workaround would be that the federal government will give federal benefits to any married couple who are married in a state in which it is legal to be married, regardless of whether the state in which they reside recognize that marriage or not. But under DOMA, that is presently not the case. States could still amend their constitution to deny their state’s marriage benefits to couples legally same-sex married, but the federal government, barring a constitutional amendment of their own, cannot. That strikes me as the only constitutionally tenable position, to the extent that civil marriage itself makes any constitutional sense the more these questions are pushed (I’m leaning towards “it doesn’t). In which case any same sex couple that is legally married anywhere is federally recognized as married, with all the ensuent federal benefits, regardless of whether their state chooses to recognize their marriage or not.

    The fact that the federal constitution demands equal protection under the law, that gay couples being barred from marriage is on-the-face-of-it unequal protection, and that sexuality is almost certainly a class for which equal protection applies, makes this one something of a no brainer, although the details of the eventual ruling will be interesting.

    Comment by Brad — 7/8/2009 @ 3:26 pm

  2. Andrew Sullivan was a public advocate of states’ rights on this issue as recently as five years ago. That would appear to have been a strategic argument rather than one made from principle.

    Are you arguing that the federal government is constitutionally obligated to recognize marriage for federal purposes while allowing the states to make their own recognitions for the purpose of state-level benefits? Or are you flat-out contending that the fourteenth amendment to the US Constitution makes it illegitimate for state governments to deny marital benefits to homosexuals? Your “workaround” seems untenable under your view of the fourteenth amendment.

    Comment by Rojas — 7/8/2009 @ 4:57 pm

  3. Admittedly I got a bit lost in the weeds there. I was more trying the mental exercise of possibly imagining what sort of waffle a SCOTUS bending over backwards to respect the 10th amendment (or at least not have to deal with the headache of declaring a few dozen state constitution illegal) might try.

    My view on this, roughly:

    1. I am indeed flat-out contending that the fourteenth amendment to the US Constitution makes it illegitimate for state governments to deny marital benefits to homosexuals. I give at least a plurality percentage here to the notion that SCOTUS (if it gets that far) takes that view. However, as mentioned, there have been previous DOMA waffles and I can’t imagine the conservative or centrists justices on SCOTUS or wherever are particularly keen to issues a Massachusetts style ruling nation-wide, for political reasons (taken in a legal vacuum, that would be, in my view, the correct/right decision to make, I’m just not convinced the courts won’t try some sort of Grand Compromise workaround of some sort that I can’t quite conceive of at this point).

    2. I am admittedly a little hazy on some of the previous federal rulings on DOMA specifically and the current interplay of heterosexual marriage laws on the state level as linked to federal rights and benefits. When I did study this issue it was almost entirely on a state constitutional basis for the states where it was live at the time (MA, CT, VT, PA, VA, a few others). Hence I’m not really sure what sort of Grand Compromise options may be available to them.

    But I suppose my larger point was that there were two levels of issues:

    1. The first is whether state-level discrimination on this matter is legal in the first place at all. All roads, ultimately, will lead here, but probably the first battleground will be…

    2. So long as state-level discrimination remains legal (which, theoretically, it is, until a SCOTUS ruling clarifies), how then does that dictate federal policy?

    A better way to simplify it is to think of standing.

    A same sex couple who are married and live in MA have no standing to sue. They are entitled to both state and federal marriage benefits.

    A couple that were married in MA but live in OK can sue the federal government that both denies them federal benefits and has the federal law allowing the state to deny them state benefits (DOMA). They were legally married in the United States but because that marriage is not recognized in their state they are denied both state and federal marriage rights/benefits. That is the tract the MA suit has set out on.

    Finally, a couple that live in OK and cannot get married at all can sue OK on the grounds that their constitutional amendment barring them from getting married is in violation of the federal 14th amendment (that state bars on gay marriage is itself inherently unconstitutional).

    Now, of course, if the SCOTUS were to rule on that last one and upheld the 14th amendment, the DOMA question becomes moot (because gay marriage is then legal in all 50 states). But I think (I stand to be corrected on this) that any presently married same-sex couple will only really have standing to sue on the DOMA issue. Because, in essence, the state-to-state issues are all operating under federal law (that was probably effectively true before DOMA but it is certainly true since). Though maybe they can also sue their state governments for not recognizing their marriage, but that’ll just wind up being deferred to DOMA anyway I would think.

    So, theoretically, a court could avoid ruling on the 14th amendment question by just striking down DOMA and granting federal marriage benefits to any legally married couple. But then, of course, all those unable-to-be-legally-married couples will start suing their states (they are already), and those cases will eventually wind right back in front of the federal bench, which is why I say all roads lead to the 14th amendment question anyway (just that I think it’ll take longer to get there).

    Oh, then there is the sidebar group of people who were legally married in a state only to have that state then pass a law barring it, and whether those couples are still legally married or not, and whether they are recognized as being married by the federal government, but that’s a whole separate tract.

    Comment by Brad — 7/8/2009 @ 5:54 pm

  4. One thing that I haven’t been able to quite understand, as mentioned, is the question of standing. Namely, why this suit is being brought by the state of Massachusetts, which, as far as I’m aware, remains single. I sort of take it as a given in my posts above that the person that could sue DOMA would be a couple married in Massachusetts but who reside in a non-same sex marriage state, and are thus denied federal benefits despite being legally married. But in this case, it is the state of MA itself that is suing, presumably on their behalf, which will probably make the suit easy to dismiss (what needs to happen is a class action lawsuit).

    I’m still awaiting Kip Esquire’s post on the matter, as he is essential on stuff like this, but based on his tweet, I think he sees the same problem.

    Not really sure how a state (as opposed to a person) has standing to challenge DOMA Section 3. Stay tuned.

    I see one interesting point in the Mass DOMA complaint. The rest is gobbledygook that will likely be dismissed for lack of standing.

    Staying tuned.

    Comment by Brad — 7/9/2009 @ 2:18 pm

  5. Volokh Conspiracy has a first-pass breakdown.

    Interestingly, and one of the things I mentioned I didn’t know about, but I guess there are real issues involved in MA, at a state administration level.

    As a policy matter, the Massachusetts lawsuit is a compelling challenge to DOMA. The Complaint offers some very interesting examples of ways in which Section 3 complicates a state’s recognition of same-sex marriages and withholds important benefits from gay families. These range from large and important federal deprivations, arising from programs like Social Security and Medicaid, to obscure but poignant ones.

    In the latter category, for example, falls federal funding for state-run veterans cemeteries, where both vets and their spouses are eligible to be buried. Massachusetts was told by the Veterans Administration that it would lose federal money for upkeep of a cemetery if it allowed the same-sex spouse of a vet to be buried there. Complaint at 20-21. A six-page addendum specifies some of the more than 1,000 ways that federal law confers entitlements or imposes obligations on married couples all of which are limited to opposite-sex couples under Section 3.

    Moreover, again as a policy matter, the Massachusetts lawsuit convincingly sketches several ways that Section 3 enlarges federal authority and undermines state authority in an area of traditional state control. Section 3 complicates, and imposes identifiable costs upon, a state’s recognition of its own citizens’ same-sex marriages. The state, in essence, must keep separate books for same- and opposite-sex marriages where eligibility for federal benefits is concerned. And, if it wants same-sex couples to have the same benefits available to opposite-sex couples, it must make up the difference out of its own revenues. Section 3 is a departure from the tradition of federal reliance on the states’ definition of marriage, as Massachuestts says. There is a genuine concern about state authority here. Overall, these policy arguments are a strong rebuttal to the Obama DOJ’s view that federal “neutrality” justifies Section 3 because otherwise non-SSM states will be forced to subsidize SSM in places like Massachusetts.

    But, as Volokh goes on to point out, the court of the last hundred years has a lot of anti-federalist precedents on the books—in areas where Congress can’t regulate a state’s behavior, for instance, it CAN use its spending powers to effectively regulate by financial sticks and carrots—that may make the DOMA challenge here, though compelling, a losing one.

    So Sullivan is not necessarily wrong, ironically. This challenge being upheld would have the side-benefit of reasserting 10th amendment protections and chipping away at federal regulatory powers.

    Comment by Brad — 7/10/2009 @ 2:33 pm

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