Massachusetts, the first state in the nation to legalize gay marriage, has become the first state to challenge the constitutionality of a federal law that defines marriage as the union of a man and a woman, saying Congress intruded into a matter that should be left to individual states.
“In enacting DOMA [the Defense of Marriage Act], Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people,” the state said in a lawsuit filed today in US District Court in Massachusetts.
Many have argued that States have the right to define marriage for themselves and thus outlaw SSM as they wish. It is an interesting tack that if you assume such rights for the states, federal DOMA may be stepping on ground reserved to the states.
UPDATE (by David): You can read the complaint at this link (PDF).
.. Tim Little.
When Obama made it abundantly clear that there would be no changes on the federal level, this is the only way to go after it. I wonder how this would play if this challenge is a success and a later president tries to pass some sort of federal gay marriage law.
… should have much power with regard to marriage. There shouldn’t be any conflict between one’s marriage status federally, by state, or by municipality.
and there was a uniform law about same-sex marriage, there wouldn’t be any same-sex marriage. How quickly we forget that Clinton’s DOMA was what enabled Massachusetts to enact same-sex marriage and prove that the sky won’t fall. Without DOMA, Massachusetts marriages would have been recognized by the federal government and other states would have been forced into court battle hassles and there would have been a federal marriage amendment enacted in two seconds flat. The FMA was shelved on the theory that DOMA was working. It still might be the case that ending DOMA will bring back the FMA.
I wasn’t really lamenting the way this is playing out or has played out or might play out. I was lamenting that structurally it doesn’t make much sense for states to have ‘marriage definition rights’. If you buy that this essentially a civil rights issue (which I do), then it seems wrong to let states edit these rights on their own geographical whim.
States can give more rights than the US Constitution demands, but they can’t give fewer rights. So though the US has said there is a basic civil right of man to marry, that apparently does not include first cousins, or 15 year olds, as only some states allow those marriages. Those differences stem from cultural history, not geography (as you surely know), as different cultures have very different ideas about cousin marriages and youthful marriages, some cultures encouraging it, some declaring them crimes. And different states were originally populated by different cultures, and still to this day have predominant majorities that want the government to back up their cultural practices, rather than undermine them. But as time goes by and we become a more national TV focused uniform culture, marriage laws are becoming more uniform. But even so, it’d be hard to tell states they have to allow cousins or children marry, let alone set uniform regulations and obligations and divorce rules. I suspect that clerks often ignore those laws when cousins apply anyhow. So I think we’re going to be stuck with state laws for a long time.
The FMA isn’t going anywhere. With America rapidly changing on marriage equality, FMA will stay in the dustbins of American history. Did you know that a large plurality of this country favors marriage equality. It’s 42% to 23% (favor civil unions) to 28% (anti-equality), meaning a full 55% of America supports greatly expanding civil rights for gay couples, compared to 28% who are opposed. http://www.cbsnews.com/blogs/2…
<
p>Very soon, even national republicans will start to either favor marriage equality or civil unions. It will become a politically untenable position to stay a bigot as more and more of the bigots die off, replaced by younger people who support marriage equality by gigantic margins — including young conservatives, like JoeTS.
That was an April poll, and it was perhaps a polling aberration. Now they say “Support For Gay Marriage Dips“, as their latest poll is more in line with old numbers:
<
p>That shows that twice as many oppose SSM as support it, 62% opposed, 33% in favor. As many people are even opposed to Civil Unions as in favor of marriage. Even that April poll, which was the greatest support ever, still was 51-42 against SSM.
It still shows that a plurality support marriage equality, and at least 63% of America aren’t homophobic bigots. You other 32%, well, sorry.
If any of that 30% supported marriage, they wouldn’t be in the Civil Union category. They oppose marriage equality, though you are correct they are not homophobic bigots, since they support Civil Unions. It is 62% against, 33% for, a 2:1 majority against same-sex marriage.
You can’t categorize them with the bigots, as hard as you’re trying to. Sorry.
That’s new for you, isn’t it?
But for those holdovers who haven’t yet embraced full marriage, whether they’re confused on the issue, thinking civil marriage is somehow intrinsically religious, or they’re just plain old… I appreciate the fact that they’re making that leap. Is it good enough? No. But it’s a great starting point. I find that most people I know who used to only support civil unions now embrace full marriage equality. If someone recognizes the need for an expansion of equality, they’re likely to eventually come to the realization that civil unions just isn’t good enough, and marriage equality won’t hurt them. These are the people I’m willing to engage, talk to and work with. It would do me no good to push them in the other direction.
That 30% prefers CU’s, but they might not vote for an FMA to define marriage. Perhaps most of those Civil Union supporters would vote against an FMA and would support same-sex marriage, it’s true. But then again, an amendment only needs 3/4th of the states to ratify it (that’s 38 states, so 13 states are needed to stop it, and so far not a single state has voted for same-sex marriage), so since those pro-marriage people are concentrated in a few states, they’ll be left out of the process.
…provide all the same rights as marriage.
I guess it depends on what state, and how they are defined. How are (were?) they different in New Hampshire? It’s also true that some Civil Union supporters favor fewer rights for Civil Unions, but those limited unions are usually called Designtated Benificiaries or Domestic Partnerships, and Civil Union is supposed to mean “just like marriage but called Civil Union”.
<
p>England has very broad but specific rights in its Civil Partnership law that are tailored for same-sex couples, and Elton John suggested that America is crazy for holding out for marriage, because CP’s are better:
work with marriage, not civil unions. Unless that part is changed, civil unions won’t grant federal rights, DOMA or no.
<
p>Right?
There would have to be a federal law that said that state civil unions are equivalent to marriages for purposes of federal law. It hopefully wouldn’t require a big giant piece of legislation like the CP law in England to make federal CU’s, or re-writing all the federal laws to add “or Civil Union” everywhere. Just a one sentence law to make them equivalent. There’d also need to be some minimal definition of what constitutes a civil union, would weak Domestic Partnerships qualify, even though those don’t require divorce proceedings or have the same obligations as marriage?
suggests that, contrary to the comments above, that civil unions do not provide all the same rights as marriage. Furthermore, the prospect of a federal “civil union” bill seems slim to none at this point. Neither the gays nor “zomg teh gayz” will go for it.
Odd that nobody gives credit where it belongs — our Attorney General, Martha Coakley. As did Tom Reilly before her, Coakley is willing to put Massachusetts on the side of good when the federal government is doing the wrong things for the wrong reasons. I only hope would-be leaders in the Commonwealth publicly support this move.
<
p>Thank you Martha.
If and when this gets to the Supreme Court, let’s hope the Attorney General is smarter than she was in the Melendez-Diaz case. She argued that case herself, and not too strongly, judging from the transcript. So perhaps she could assign this to one of her top-notch AAGs? Peter Sacks?
<
p>TedF
For so many years We The People have ignored the rights of anyone but the groups to which they belong. Now it is coming home to roost. Maybe if we care as much for all human rights as much as we care for our own groups’ rights, there will be a breakout of freedom. Politicians ignore splinter groups, but what if We The People were to rally all at once for human rights?
<
p>Some states have taken to get back some of the rights of all the people. The Constitution, well, maybe this is the way to start.
The federal government recognizes marriage so as a sovereign entity it would seem their prorogative to define it, so long as it does not infringe on the states’ ability to define it for their own purposes (unless of course they want to grant a blanket right the states can’t abridge – that would be another story). I’d be interested in seeing the full brief because as much as I’d like to see DOMA overturned the statement quoted in the diary frankly strikes me as awfully weak.
The U.S. Constitution doesn’t give Congress or the President general police power.
<
p>Police power: http://en.wikipedia.org/wiki/P…
<
p>Matters of family law have historically been considered to be entirely matters of state law, as they fall squarely within the state’s police power.
<
p>The questions that comes out of this:
<
p>1) Did the federal government overstep its Constitutional Authority when it passed DOMA? It is certainly a police power regulation – but is it outside the scope of Congressional Power? Some experts say yes, others say no.
<
p>2) Under Article IV, Section 1, the full faith and credit clause – do states have to respect marriages from another state when they do not allow such marriages in their own state?
<
p>This was the big issue that drove the adoption of DOMA in the first place.
I have always questioned the constitutionality of the part about states not having to recognize each other’s marriages per Article IV.
<
p>As to police power, there might be a case if DOMA went as far as to ban states from defining marriage as including unions between two adults of the same gender. My understanding is that the one-man, one-woman only applies to federal action per federal DOMA. In other words, if (for example) marriage is an issue for federal tax returns via joint filing and determination of tax brackets, then certainly the federal government is legally competent to set its own standard rather than having to rely on 50 different state standards and thus enforce the federal tax code differently for different people depending on their state of residence.
<
p>In general I tend to be a loose constructionist and very broadly define federal power a la Alexander Hamilton.
UPDATE II: Video where Coakley Speaks to Greater Boston.
<
p>I tried to edit the diary page, but for some reason it wouldn’t work. I suspect it’s a side effect of the page having been promoted.