The case against DOMA was presented by Maura Healey, chief of the civil rights division of the AG’s office. Christopher Hall argued for the defense. US district judge Joseph Tauro heard the case in Federal court.
Healey’s basic arguments were that DOMA
violates Massachusetts’ constitutional right, under the federal constitution, to sovereign authority to define and regulate the marital status of its residents.
is an animus-based national marriage law that intrudes on core state authority and forces the state to discriminate against its own citizens.
Both arguments are contentious.
While it is true that the definition of marriage has been almost exclusively left to states for the entire history of the United States, Hall argued that the federal government has defined who and who is not married for immigration purposes. If the Federal government has the power to do that, why can it not define who and who is not married for the purpose of receiving, e.g. survivor Social Security benefits or tax breaks?
Still, immigration status is solely the province of the Federal government, and the recognition of marriages of US citizens and legal residents to foreign nationals so as to determine whether they will be allowed into the country does not necessarily seem very relevant to the recognition of marriage between two US citizens. If the US Government had never challenged who a state said was married until 1996 when DOMA was enacted, does it suddenly have that right just because the individuals involved are of the same sex?
The latter argument is also interesting. It goes to Romer v. Evans, where the Supreme Court held that a Colorado law was enacted solely in animus against the state’s own same-sex citizens, and therefore invalid. And to California’s Proposition 8 trial, Perry v. Schwarzenegger, where the plaintiffs are attempting to demonstrate that animus played a leading role in the decision to put Proposition 8 on the ballot.
In regards to such animus, Healey argued that
…the government still cannot identify a reason to treat gay couples differently, other than animus. She noted the federal government has disavowed the reasons Congress offered in 1996 when it passed the law. And she said it has no evidence to support the reasons it offers now.
Hall argued that animus was not involved:
“Congress decided to freeze the status quo and let the democratic process work itself out at the state level,”
In 1996 DOMA was pushed through a Congress in panicked fear that
Hawaii (and possibly other states) would soon legalize same-sex marriage, whether by legislation or judicial interpretation of either the state or federal constitution.
It’s one thing to codify that a state that does not allow same-sex marriage need not recognize that marriage, even if legally created in another state. It is an altogether different thing to, in seeming spite, say that the Federal government won’t recognize such a state’s act. That, indeed, seems like animus. And note that the case before the court is carefully crafted as to not challenge the rights of states to non-recognition, only to the ability of the Federal government to snub its nose at states that do allow same-sex marriages.
Elsewise, in a sprited exchange, Judge Tauro and Hall had it out on the meaning of marriage:
“But we’re here dealing with something basic,” said Tauro. “Are these people married or not?”
“They are married in the state,” said Hall.
“But not for federal purposes?” asked Tauro.
“They’re not eligible for federal benefits,” said Hall.
While vaguely plausible, the implication is that Congress could say that benefits for ‘married’ people apply to different sets of people for each benefit. As there as some 1400 different Federal benefits to being married, this could provide sustinence for an entire new generation of lawyers.
Perhaps Inigo Montoya should have taken Hall’s place, responding to Tauro’s question with:
“Marriage. You keep using that word. I do not think it means, what you think it means.”
On the other hand Hall might have been better off making reference to Schrodinger’s cat, seeing as it is both dead and alive.
Or the judge could have brought in Humpty Dumpty to formulate a more precise response:
When I use a word,’ Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’
Tauro said he would issue his ruling “shortly.” Which is good news. As long as Christopher Hall doesn’t get to define it.
No one knows how long DOMA challenges will take to reach the Supreme Court, if ever. But given the extreme difficulty in getting any semblance of action of DADT repeal and ENDA in this Congress, and the prospect of a Congress with even more Republicans for 2011 and 2012, it seems very likely that these court challenges are the only way the DOMA will be brought down.
This is the third article in a series that looks at lawsuits related to LGBT equal rights.
this was posted originally @ Daily Kos here
The author does not have a BMG membership, but seeing as it was MA related, I figured we’d benefit from more than just a link to it.