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massachusetts and maine

July 8, 2009

An interesting day in the realm of gay marriage.

Mass. challenges federal Defense of Marriage Act - Local News Updates - The Boston Globe

July 8, 2009 01:40 PM
By Martin Finucane, Globe Staff

Massachusetts, the first state in the nation to legalize gay marriage, has become the first 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. The suit said that more than 16,000 same-sex couples have married in Massachusetts since gay marriage became legal in the state in 2004 "and the security and stability of families has been strengthened in important ways throughout the state. Despite these developments, same-sex couples in Massachusetts are still denied essential rights and protections because the federal Defense of Marriage Act [DOMA] interferes with the Commonwealth's authority to define and regulate marriage," the lawsuit said. [...] The lawsuit argues that DOMA, which was enacted in 1996, precludes same-sex spouses from a wide range of protections, including federal income tax credits, employment and retirement benefits, health insurance coverage, and Social Security payments.

The defendants named in the lawsuit include the US Department of Health and Human Services, the US Department of Veterans Affairs, and the United States itself. A US Justice Department spokesman wasn't immediately available for comment.

The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" for the purpose of federal law as "a legal union between one man and one woman as husband and wife." It does not challenge the constitutionality of Section 2, which provides that states are not required to recognize same-sex marriages performed in other states.

The suit alleges that the law violates the 10th Amendment to the Constitution, which reserves to the states all powers except those granted to the federal government. It also alleges that the law violates Article 1, Section 8 of the Constitution, which limits the power of Congress to attach conditions to the receipt of federal funds....

It's going to be interesting to see if that lawsuit succeeds. It's taking a different tack than the individual lawsuits, which are based in the denial of due process. Massachusetts is instead arguing that the federal government overreached. Honestly, I have to say, it really does seem like the states would lack standing. DOMA is, after all, a law aimed at the federal and the individual; the states don't really enter into it at all -- or rather, the part that involves the states as entities is not, in fact, the part that Massachusetts is challenging. All of the benefits that Massachusetts is arguing about are federal grants, not state-level.

If the lawsuit succeeds -- and I can't imagine that it will, once it's wended it's way through to the Supreme Court -- what will be left of DOMA is only the clause that notes that the individual states aren't required to recognize any such marriages if they would not otherwise do so -- in other words, the one part of the law aimed at the states as entities is the one part that the Massachusetts lawsuit leaves alone. And that part is a reiteration of long-acknowledged custom. For example, if you lived in New York and married your first cousin, according to the table at Cousin Couples, that would be perfectly fine. If you then moved to Pennsylvania, that state would be within its rights to refuse to recognize your marriage as valid. In practice, of course, it rarely works that way, in part because states just don't seem to ask about what are assumed to be validly contracted marriages. On the other hand, if you're two men or two women, and you say you're married, the state just doesn't have to ask all that many questions to figure out what's going on.

Meanwhile, in a state next door...

Gay marriage foes reach signature goal in Maine
bostonherald.com/By Associated Press
Wednesday, July 8, 2009

PORTLAND, Maine - Gay marriage foes in Maine say they’ve collected enough signatures to stop the new law from going into effect and to force a statewide vote in November.

Mark Mutty from the Stand for Marriage Maine coalition says it took only four weeks to gather the more than 55,087 signatures necessary to put gay marriage to a vote. But he says signature gathering will continue to ensure there’s more than enough petitions.

The law that’s scheduled to go into effect on Sept. 12 will be put on hold after the signatures are submitted and certified by the secretary of state’s office....

So, in all likelihood, gays in Maine will never be able to get married before the law is repealed. And make no mistake; unless Maine really is terribly special, the law is almost certain to be repealed through the "public veto". I suppose, if there's nothing of particular interest otherwise on the November ballot, maybe the law will survive if the proponents of gay marriage can organize their supporters and get out the vote. One can but hope that Maine is more fertile ground for this than, say, California.

But frankly, I do believe that when this sort of civil right is that heavily conflated with religious views, the more restrictive view is much more likely to win. You can tell people until you're blue in the face that civil marriage has nothing to do with religious marriage, that churches won't be forced to do anything regarding marriage that they don't want to do, and they will not believe you.

I hope I'm wrong, I really do. But I do believe, quite strongly, that come November, Maine will join California as a state that deliberately took rights away from some of its citizens. What a lovely, exclusive club that is.

For now.

Posted by iain at July 08, 2009 01:07 PM







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