Coakley: DOMA Creates Two-Tiered System For Marriage Benefits

Massachusetts has filed a lawsuit challenging the federal government over the 1996 federal Defense of Marriage Act, DOMA, defining marriage as a legal union between one man and one woman. The lawsuit filed Wednesday by Attorney General Martha Coakley argues the act infringes on Massachusetts' authority to define marriage for itself, and forces the state to treat same-sex couples differently.

Attorney General Coakley spoke with us about the suit.

Bob Oakes: Let me ask you first of all about the challenge. What are you challenging in DOMA? What is the top line in the state's argument?

Martha Coakley: There's really two. We are only challenging it, of course, as it applies to Massachusetts. We've had same-sex marriage for five years and we've now had an opportunity to see that what DOMA really requires in Massachusetts is a two-tiered level of, really, citizenship for people who are same-sex married couples.

The first argument is that we are a commonwealth, it puts additional administrative and cost burdens on us, because now we have to administer two systems. We have two sets of people who are married, one for purposes of state law and now another set of people for purposes of federal law.

The second is that it is really a violation of, you know, our state sovereignty that this is the one area where states have always been allowed to determine marital status. It has not been invaded by the federal government before and, frankly, this particular statute, which has no real rational basis and serves no purpose, really should be unconstitutional based upon that history of state and federal relationships.

For those unfamiliar, how does DOMA affect gay couples — gays and lesbians — married in Massachusetts?

Well, I think there's several ways, and we've stated in our complaint that, in terms of over a thousand federal benefits, same-sex couples are treated differently in Massachusetts. And that includes everything from income tax, to federal gift tax, to spending accounts, Social Security spousal benefits, Medicare, medical leave, public safety officer benefits — and so, for those reasons, individuals are impacted differently.

It also impacts the commonwealth, as I said, because we jointly administer several kinds of programs, including health care benefits through our MassHealth program, and particularly through cemetary burial services.

And so we are in the position now of working with the federal government on benefits that our resident citizens should be entitled to, but there's a two-tiered system for our disposing of those benefits.

So what are you seeking? What's the state seeking? To overturn the entire Defense of Marriage Act, or part of it?

No, we really say that our jurisdiction and our interest is in only, in the first instance, seeking an injunction — that DOMA should not apply to Massachusetts, in the first instance -- and then on the merits, we are seeking that it be determined as a matter of law that DOMA -- as it is applied to Massachusetts now, because we as a state have determined that same-sex marriage is the law in Massachusetts — that it is unconstitional as applied and therefore should be so deemed.

If the lawsuit was succesful, would the definition of marriage in DOMA between one man and one woman change? I ask the question because critics of the lawsuit say that, if so, that change should be done legislatively, partly because it was legislation that created the definition. And even opponents point out that President Obama has called for a legislative repeal of the law?

Absolutely, it would be my first wish that Congress would repeal DOMA, that would make our lawsuit moot, clearly. But, this doesn't — they're mutually exclusive arguments. The fact that a statute can be repealed and certainly Congress can do that, and I would hope they would, doesn't mean it will be.

And I have no ability as a state attorney general — other than to call for the repeal -- I have no ability to do that. In the meantime, I don't know when it will be repealed, and the fact that it exists on the books and is applicable now puts Massachusetts currently, we believe, in an untenable situation that we should not be in.

What about the timing of this? The federal Defense of Marriage Act is 13 years old, passed during the Clinton years. Gay marriage has been allowed in Massachusetts for five years, you've been in office for several years. Why didn't you file this before?

Well, I actually was asked that yesterday and there are several reasons to that. This is an issue that arose when I was running for attorney general. People brought up several issues that I had asked about: What do people care about? What's important to Massachusetts? What should we be doing as attorney general?

I came in two and a half years ago. Keep in mind that Massachusetts, at that stage, had just —  it was two and a half years in to gay marriage. We looked at the issue, we didn't file a lawsuit lightly, we spent a lot of time looking at the legal theories involved, the facts involved.

We felt particularly after GLAD had filed a lawsuit in March, and we saw the issues that they raised, and then the slightly different issues that we raised as a commonwealth. Also, then having five years of experience with, what was the impact on Massachusetts? We had a record we were able to see that there were costs imposed upon the state, that were irrational, that they would continue.

And so we felt taking our time to make sure we weren't just jumping in to file a suit for the sake of that, and also having the experience of Massachusetts behind us, the timing made sense.

Your critics say that this is purely political. That you're trying to boost your political profile for a future run for higher office.

You know, the critics will say that about most things I do, I suppose. I don't really pay too much attention to that. We've been very busy since I came in as attorney general. We've been thinking about this suit for awhile. I think the suit stands on its merits. And I guess that's just what happens, you know, when you're an elected official, people are going to say that.

I think the suit makes sense, I think it costs Massachusetts money, it's unfair to people in Massachusetts. And if I'm going to be criticized for doing something political, than so be it, but I think that the suit was the right thing to do and I'm proud of the folks who worked on it.