Massachusetts sues U.S. over gay marriage rights

[Faeelin]

Equal protections. Also, it's shaky on the 10th; the government leaves marriage to the states because it's not under the umbrella of the federal mandates, so (my guess is that) the federal government should identify the state marital status and approve or deny benefits based on that; even if DOMA is legal, it should only apply to DC residents who have no state government or residents of other US territories.

Isn't there a precedent from when the government refused to recognize Mormon polygamous marriages, though?

[Neil]

Elaborate.

He said not to take it to the Supreme Court "while that homophobe Scalia is still there."

Well, Scalia deserves to be shot, and not just for his homophobia. He is the worst SCOTUS judge in decades.

Anyone who prevents homosexuals from being happy is OK with me.

[ulmont]

The complaint appears to be here: http://www.scribd.com/doc/17209369/2009-07-08-Doma-Complaint

Or here: http://www.mass.gov/Cago/docs/press/2009_07_08_doma_complaint.pdf

[ulmont]

I'm surprised this hasn't been posted here yet. What say you lawtalkers, does the suit have a chance?

It looks to me like the Commonwealth has teed this one up quite nicely, from an admittedly cursory overview.  DOMA was always obviously based on nothing more than anti-gay sentiment, making it a bit shaky from the beginning, and the 10th amendment hooks allow the Commonwealth to get righteously fired up over being conscripted by the big bad federal gummint.  There's something here for everyone to love.

[DontSayBanana]

Isn't there a precedent from when the government refused to recognize Mormon polygamous marriages, though?

Not necessarily. That had to do with the number of signatories in the marital contract; it didn't actually address the characteristics of any of them.

[The Minsky Moment]

The state's interest seems pretty attenuated to me.

[dps]

It would seem to me that while the state can define as married such persons as it chooses for its purposes, the federal government might still be free to choose to use another defination for its purpose of determining eligibilty for federal benefits.

[Faeelin]

The state's interest seems pretty attenuated to me.

You don't think states have an interest in seeing their contracts enforced?

[DontSayBanana]

It would seem to me that while the state can define as married such persons as it chooses for its purposes, the federal government might still be free to choose to use another defination for its purpose of determining eligibilty for federal benefits.

Not based on marital status, since they have no authority to determine it in the first place. They should defer to the state governments to determine that status, except for residents of Washington, D.C. and the handful of insular areas (Puerto Rico, Guam, et al).

Even if you take the tack that the federal government is an employer that is not answerable to any state government, you come up against two problems: that DOMA should only apply to Title 5, not the entire US code, and that there's still an equal protections clause question to be addressed- the contract is only valid if countersigned by a partner of the "correct" (opposite) gender.

[The Minsky Moment]

Not based on marital status, since they have no authority to determine it in the first place.

that is so by tradition and custom, but there is a decent argument that the commerce clause provides otherwise.

[The Minsky Moment]

You don't think states have an interest in seeing their contracts enforced?

What is the contract enforcement problem at issue here?

[DontSayBanana]

that is so by tradition and custom, but there is a decent argument that the commerce clause provides otherwise.

How so? A lot of what I've seen indicates the opposite; that the commerce clause is what's used to uphold the states' right to determine marital status.

I also think we're dancing around it. I think where Faeelin is coming from is that in federal programs that rely on marital status, it could be seen that DOMA is being used to improperly override state marriage certificates.

I'm breaking it down for my own purposes this way:

Question 1: by refusing to honor marital contracts based on gender, is DOMA a violation of Amendment XIV?

Question 2: given that the commerce clause was used to establish marriage as a realm of the state government, does using its own determination for citizens with valid, state-issued marriage certificates violate Amendment X?

Question 3: given that the federal government is an employer as well, does it have the authority to use marital determinations outside of Title 5? Also, does it have the right to make that requirement of its employees, or would that also be a violation of Amendment XIV?

[The Minsky Moment]

I am firmly of the opinion that DOMA violates the 14th amendment.

I also think Mass ought to have standing to sue.

However, given the current state of federal law on the matter, it is not yet clear to me that a court would ultimately rule that they do.

[DontSayBanana]

I am firmly of the opinion that DOMA violates the 14th amendment.

I also think Mass ought to have standing to sue.

However, given the current state of federal law on the matter, it is not yet clear to me that a court would ultimately rule that they do.

I see. Sounds like I've been arguing the same side, then. I really ought to remember to factor human nature in more often.

[MadImmortalMan]

Not to be Captain Obvious or anything, but why bother with any of this at all? Just get Congress to repeal it. Surely Obama won't veto.