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.
In Part One 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, 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.
In a companion opinion, Commonwealth v. U.S. Department of Health and Human Services, 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.
In this column, I will briefly describe Judge Tauro's ruling in Commonwealth, and then consider the role that marriage-law history plays in both cases.
The Claim in Commonwealth v. U.S. Department of Health and Human Services: How DOMA Affects the Administration of Certain Benefits and Programs
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.
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).
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.
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.
The Basis for Massachusetts' Challenge to Section Three of DOMA -- and the History that Influenced Judge Tauro's Ruling
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.
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:
How does this history factor into the Commonwealth's claims? The answer is that Congress can only act pursuant to enumerated powers in the Constitution. If it exceeds those powers, it runs afoul of the Tenth Amendment, which reserves all non-enumerated powers to the states.
In defending DOMA in this case, the federal government claimed reliance on the Spending Clause, which gives Congress the authority to make (or withhold) expenditures that best promote the "general welfare" of the population.
Congress' Spending Power has been construed broadly, but the Supreme Court has articulated five requirements that must be met for an exercise of the Spending Power to be deemed legitimate -- only one of which I will mention here: The legislation must not induce the states to act in an unconstitutional manner.
Here, because of the court's companion ruling in Gill, DOMA requires the Commonwealth of Massachusetts to do just that -- that is, it requires the State to deny same-sex married couples the benefits of their marriage, in violation of the Equal Protection Clause. (The Equal Protection analysis is explained in Part One of this two-part series of columns.)
After finding that DOMA is not validly rooted in the Spending Clause, Judge Tauro went on to find a violation of the Tenth Amendment as well, relying heavily on his assessment that regulating marriage is a "core attribute of state sovereignty." On this point, the recitation of marriage history is, in Judge Tauro's view, dispositive. The fact that the federal government has left states alone to determine their own marriage laws -- and then deferred to those laws when implementing federal law -- suggests that marriage laws are themselves a protected aspect of state sovereignty.
The Role of Marriage-Law History
For the most part, Judge Tauro's recitation of marriage-law history is accurate. It is true that states regulate entry to, and exit from, marriage by virtue of their marriage and divorce laws. It is also true that states, historically, have had sometimes vast disagreements about what the impediments to marriage should be. And it is true that Congress has stayed out of these controversies, although not without some failed attempts at inserting itself. As Cardozo Law Professor Edward Stein has pointed out, seventy-seven constitutional amendments have been proposed that would have given Congress the power to regulate marriage and divorce at the national level. One more such amendment was introduced very recently -- the Federal Marriage Amendment, which proposed a constitutional prohibition on same-sex marriage. But none of these proposed amendments ever even made it to a vote, let alone became part of the U.S. Constitution.
What role has the federal government played in marriage and domestic relations? Here, it is important to distinguish between Congress and other branches of government. Congress has never legislated a civil definition of marriage, nor has it ever successfully passed a constitutional amendment to do so.
The Supreme Court, however, has waded into marriage law before. In 1967, it ruled in Loving v. Virginia that bans on interracial marriage violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This was the first time the Court had weighed in on the law of marriage, other than to referee disputes between the states through the rules of marriage or divorce recognition. The High Court also invalidated state marriage-law provisions in two subsequent cases in which it determined the constitutional right to marry had been violated. But Loving stands for the proposition that state marriage law must cede to the requirements of the federal constitution. If so inclined, the Court could issue a similar ruling about same-sex marriage -- a ruling that state bans on same-sex marriage violate the civil rights guaranteed by the Constitution. But it's hard to imagine a theory under which the Court could do the opposite -- that is, impose a ceiling on marriage rights, thus foiling the plans of states that wanted to grant more expansive rights to their own citizens. With respect to civil rights generally, states have the power to grant individuals greater rights than the Constitution requires.
Of course, the reality that the Court can rein in state legislatures, and has done so, does not necessarily mean that Congress enjoys the same power. However, the Court's ability to intervene does suggest that states do not, in fact, have exclusive prerogatives in this area. Moreover, Congress has waded into the substance of marriage law at least once before -- to prohibit polygamy.
State marriage laws are generally structured around a list of "impediments" to marriage that include being underage, being too closely related to the other person, and so on. Today, in every state, these laws also include a provision that says a person who already has a legal spouse is ineligible to marry. Thus, while polygamy still exists in practice in a few pocket communities in some states, it is officially banned by every state's marriage law, and also constitutes a crime in most states.
Moreover, Congress has had its say about bigamy, too. The Morrill Act of 1862 made bigamy in U.S. territories a federal crime, and the Supreme Court upheld the law against a constitutional challenge -- specifically, the claim that the law violated the free exercise of religion as protected by the First Amendment. Moreover, Utah's statehood was conditioned its prohibiting polygamy as a matter of state law. It may be that issues involving polygamy are distinguishable from other marriage issues -- such as issues concerning same-sex marriage -- but the two Judge Tauro opinions never make that point. If Congress intervened on the polygamy issue -- to make sure state laws were not too lenient with respect to a practice to which it objected -- then might it also be able to do the same with respect to other marriage impediments?
And once we go beyond basic marriage law, there are numerous examples of "federal family law" -- affecting everything from child support, to foster care and adoption, to the pension rights of a surviving spouse. There is no question that one of the key changes in family law over the course of the Twentieth Century was the rise in the role of both Congress and the Supreme Court. It is thus not entirely satisfying to rest on the tradition of family law as a state domain as a justification for invalidating this particular federal foray into it.
Does Congress Have a Role in Regulating Marriage?
One of the aggravations in trying to sort out whether Congress is entitled to have an opinion about marriage law is Congress' own ambivalence regarding this matter.
During the debate over DOMA -- which was heavily focused on the likely effects of the legalization of same-sex marriage in Hawaii -- Senator Trent Lott argued that he did not object to the performance of same-sex marriage in some states. What he objected to, he claimed, was that all states would then have to respect such marriages. One state would, in his view, effectively control the law nationwide, by forcing other states to give effect to its same-sex marriages. (As subsequent history has demonstrated, this is far from an inevitable consequence of one state's legalization of gay marriage. In fact, almost all states that refuse to perform same-sex marriages also refuse recognition to same-sex marriages performed elsewhere.) He was advocating for DOMA as a way to preserve the rights of each state.
Other Republicans also praised DOMA because it would reserve the right of each state to reach its own decision about the legal status of same-sex unions. A legislative report warned that Hawaii's movement towards same-sex marriage was the beginning of an "orchestrated legal assault against traditional heterosexual marriage" that threatens "to have very real consequences . . . on federal law." DOMA was thus lauded for reinforcing states' rights, as against both the federal government and each other.
The conundrum here, relevant to the issues in Gill and Commonwealth, is that DOMA itself is schizophrenic on the issue of state power over marriage. On one hand, DOMA explicitly reserves for the states the power to determine their own stance on same-sex marriage -- both in the first instance, when deciding whether to authorize them; and in the second instance, when deciding whether to recognize those that have been validly celebrated elsewhere. On the other hand, DOMA explicitly states that the federal government will not honor same-sex marriages regardless of whether individual states do so, even though federal law traditionally, and otherwise, defers to state definitions of marriage.
It may well be, as Judge Tauro concluded, that the only explanation for such an ill-conceived, and ill-structured law is a simple and an ugly one: sheer animus against gay and lesbian marriages. And if that's the case, then all of DOMA should fall, including Section Three, as applied to any plaintiff who comes before any court.
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