{"id":52300,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/ability-fl-prod.internetbrands.com\/ability-legal\/supreme\/legal-commentary\/is-the-defense-of-marriage-act-doma-valid-a-federal-court-judge-says-no-part-two-in-a-two-part-series-of-columns-on-the-two-companion-doma-cases-in-massachusetts.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"is-the-defense-of-marriage-act-doma-valid-a-federal-court-judge-says-no-part-two-in-a-two-part-series-of-columns-on-the-two-companion-doma-cases-in-massachusetts","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/is-the-defense-of-marriage-act-doma-valid-a-federal-court-judge-says-no-part-two-in-a-two-part-series-of-columns-on-the-two-companion-doma-cases-in-massachusetts.html","title":{"rendered":"Is the Defense of Marriage Act (DOMA) Valid? A Federal Court Judge Says No: Part Two in a Two-Part Series of Columns on the Two Companion DOMA Cases in Massachusetts"},"content":{"rendered":"\n
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\"Joanna<\/a><\/td>\n

Is the Defense of Marriage Act (DOMA) Valid? A Federal Court Judge Says No: Part Two in a Two-Part Series of Columns on the Two Companion DOMA Cases in Massachusetts<\/h1><\/td>\n <\/tr>\n

By JOANNA L. GROSSMAN<\/h2>
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Tuesday, July 20, 2010<\/td>\n <\/tr>\n <\/table>

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Earlier this month, a federal-district-court judge in Massachusetts, Joseph Tauro, issued two opinions, in which for different, but related reasons he invalidated a key provision of the Defense of Marriage Act of 1996 as applied to the plaintiffs before the court. <\/p>\n

In Part One<\/a> of this two-part series of columns, I described the Defense of Marriage Act (DOMA) and the ruling in Gill v. Office of Personnel Management<\/a><\/em>, in which Judge Tauro held that federal agencies could not — under the auspices of DOMA — deny recognition to the plaintiffs’ same-sex marriages contracted in Massachusetts. <\/p>\n\n

In a companion opinion, Commonwealth v. U.S. Department of Health and Human Services<\/a><\/em>, the same judge considered claims by the State of Massachusetts itself. The State objected to being forced to distinguish between opposite-sex and same-sex marriages, when both types of marriage had been legally contracted under Massachusetts law, in the course of administering various federal programs. <\/p>\n

In this column, I will briefly describe Judge Tauro’s ruling in Commonwealth<\/em>, and then consider the role that marriage-law history plays in both cases. <\/p>\n

The Claim in Commonwealth v. U.S. Department of Health and Human Services: <\/em><\/strong> How DOMA Affects the Administration of Certain Benefits and Programs <\/strong><\/p>\n

In administering several of its state programs, Massachusetts, like other states, relies on federal funding. With respect to several of these programs, Massachusetts was put in the position of having to refuse recognition to its own marriages (specifically, same-sex marriages legally contracted in Massachusetts) as a condition of continuing to receive that federal funding. <\/p>\n

For example, Massachusetts maintains two cemeteries that are used for veterans and their families. But because DOMA says that a “spouse” is only a party to an opposite-sex marriage, a same-sex spouse cannot be buried there — even if he or she was legally married to the veteran in Massachusetts. In response to an inquiry from Massachusetts’ veterans’ affairs office, the federal government explained that it would be entitled to “recapture” millions of dollars in federal funding for the cemeteries if Massachusetts were to allow same-sex spouses of veterans to be buried there (without the spouses’ having independent eligibility, such as would derive, for instance, from their being veterans themselves). <\/p>\n

Likewise, Massachusetts’ Medicaid program, which provides health care to the poor, is not permitted to consider same-sex marital status when determining eligibility for Medicaid services. Normally, a married couple is assessed as a unit, and their incomes are combined when Medicaid makes a ruling about eligibility. But for a same-sex married couple, DOMA forces the state to consider each person as a single individual, even though that approach sometimes leads to different results than would have followed had the couple been, instead, an opposite-sex couple. (The results vary in both directions — leading in different cases to eligibility or exclusion depending on the proportion and amount of income earned by each spouse.) Again, when the State of Massachusetts asked the federal government about how to handle these eligibility programs, the State was told that it did not have the discretion to recognize same-sex marriages when implementing its Medicaid program.<\/p>\n

Because over 15,000 same-sex couples have married in Massachusetts since 2004, DOMA’s impact on these programs, as well as others that rely on federal funding, is significant.<\/p>\n

The Basis for Massachusetts’ Challenge to Section Three of DOMA — and the History that Influenced Judge Tauro’s Ruling <\/strong><\/p>\n

Massachusetts challenged the constitutionality of Section Three of DOMA on two grounds: First, Massachusetts contends that Section Three of DOMA violates the U.S. Constitution’s Tenth Amendment, by usurping powers reserved to the states; and, second, Massachusetts claims that Section Three of DOMA violates the U.S. Constitution’s Spending Clause, by placing an unconstitutional condition on the state’s right to receive and retain federal funds. <\/p>\n

Judge Tauro ruled in favor of the Commonwealth on both counts, considering them together as “two sides of the same coin.” In ruling on the Tenth Amendment claim, the judge relied heavily on marriage-law history, as detailed in an affidavit submitted by Harvard history professor Nancy Cott, a leading marriage historian. Among the points the court found most relevant were the following: <\/p>\n