Gay Marriage Fight In Mass. Is Far From Over

BOSTON — The first state to legalize gay marriage is now the first state to challenge the federal law defining marriage as between one man and one woman. Massachusetts Attorney General Martha Coakley said the Defense of Marriage Act, DOMA, unfairly excludes 16,000 married same-sex couples and their families from federal rights and benefits.

In a lawsuit (PDF) filed Wednesday, Coakley has asked the court to bar the federal government from enforcing DOMA (text of the law) in Massachusetts.

The lawsuit shows the fight over same-sex marriage is far from over, even though it was legalized in the state five years ago.

Coakley is asking the court to prohibit the federal government from enforcing Section 3 of DOMA, because it creates separate and unequal categories of married couples. “What DOMA does mean for Massachusetts couples, with the application of Section 3, is that access to over 1,100 important rights and protections that directly effect couples and their families are affected,” Coakley said. “These include federal income tax credits, employment and retirement benefits, health insurance coverage and social security payments.”

The suit brought praise from supporters of gay marriage and criticism from opponents. Arline Issacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, said she is thrilled. “This is a very bold move by the attorney general,” Isaacson said. “It shows a lot of leadership on her part, a lot of creativity and a lot of commitment both to the gay community — equality for us — and to the state — fighting for the state and the state’s right to set its own laws.”

The lawsuit names the United States of America, the U.S. Department of Health and Human Services and the U.S. Department of Veterans Affairs as defendants. Most of the federal benefits denied same-sex couples are covered by these two agencies.

The U.S. Justice Department said it will review the case, but Justice Department spokesman Charles Miller added, “the president supports legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits.”

The Defense of Marriage Act was enacted in 1996 under President Bill Clinton. It was passed in anticipation of the possibility that Hawaii might allow same-sex couples to marry. It was first challenged in a lawsuit filed five months ago by the Gay and Lesbian Advocates and Defenders. The two lawsuits are similar.

William Eskridge, professor of Constitutional law at Yale University, said the state may have a more difficult time in court than the GLAD lawsuit. “The lawsuit, if it’s a facial challenge to all of the applications of DOMA’s more than 1,100 statutory and regulatory provisions, that’s a more difficult challenge to win,” Eskridge said. “The GLAD lawsuit is primarily a challenge to DOMA as applied to specific rights and duties and benefits for the particular couples that have brought this lawsuit.”

Those who fought to prevent gay marriage from becoming law said the case has little chance of winning.

Kris Mineau, of the Massachusetts Family Institute, said the federal law explicitly defines marriage as between one man and one woman. “If we are going to change that definition, then that’s going to have to be done through a legislative or a people’s petition process,” Mineau said. “The courts can’t unilaterally change definitions of what the law says.”

But constitutional law scholars disagree, and say a federal court could declare Section 3 of DOMA unconstitutional.

Mineau also thought there were politics at play in the filing of the lawsuit. “I think it’s a pure political move by the attorney general to try to get her more credentials for future higher office aspirations,” he said.

Attorney General Martha Coakley said there is nothing political about the lawsuit — and the only office she will run for is the one she already holds.