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.

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.

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.

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.

(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.