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State of Massachusetts petitions the Supreme Court to review Section 3 of DOMA

DOMA trials Gill/Massachusetts

By Scottie Thomaston

Yesterday, a new brief and a petition for certiorari to the Supreme Court were filed in Massachusetts v. Department of Health and Human Services, a challenge to Section 3 of the Defense of Marriage Act that is consolidated with Gill v. Office of Personnel Management. The Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans has already filed its petition for certiorari in the case. The Justice Department has filed one as well. Massachusetts had raised some separate issues in the courts below and they are asking the Supreme Court to decide those issues as well; the reply brief raises two new questions:

2. Whether Section 3 of DOMA violates the Tenth Amendment.

3. Whether Section 3 of DOMA violates the Spending Clause, U.S. Const. art. I, § 8, cl. 1.

In support of Supreme Court review of DOMA, Massachusetts writes:

The Commonwealth agrees with the court of appeals’ judgment that Section 3 of DOMA is unconstitutional and normally would oppose further review in order to ensure that the judgment takes effect as soon as possible. However, the Commonwealth recognizes that the question is one of national importance and that this Court is likely to review it in the near future, if only to ensure uniformity in the enforcement or non-enforcement of DOMA throughout the country.

Massachusetts’ attorneys think the Court should review this case possibly along with others because it would present the Court with a “full range” of challenges to the law, including the Spending Clause and Tenth Amendment questions along with the equal protection question and an opportunity to define the level of scrutiny required for analyzing laws that classify gays and lesbians. In fact, Massachusetts addresses the importance of the judicial scrutiny issue, writing:

Under this Court’s jurisprudence, a classification is subject to heightened scrutiny if (1) the targeted class has suffered a history of discrimination, and (2) the characteristics that distinguish the group are unrelated to their ability to contribute to society.
In determining the applicability of heightened scrutiny, the Court at times has also considered (3) whether members of the class exhibit immutable distinguishing characteristics, and (4) whether the class is a minority or evidences political powerlessness requiring protection from the majoritarian political process. Murgia, 427 U.S. at 313-314. As the uncontroverted record below demonstrated, gays and lesbians meet each of these requirements.
Review of this question is particularly necessary because the courts of appeals have been reluctant to undertake the multi-factor analysis that Lyng requires. Neither Cook nor most of the other cases cited by BLAG for the proposition that heightened scrutiny should not apply to classifications based on sexual orientation discusses the heightened scrutiny factors in any substantial way.

And they point out that under the First Circuit’s analysis, federalism concerns would all for more rigorous review.

And lastly, the brief suggests that Section 3 of DOMA violates the Spending Clause because the law itself is unrelated to the spending programs. Under their argument, the definition of marriage that Section 3 of DOMA requires would need to be in service of the laws it affects, like Medicaid payments and military burial. In Massachusetts’ view there is no relationship between the definition and the programs whatsoever.

Massachusetts says its lawyers take “no position” on whether the Bipartisan Legal Advisory Group (BLAG) has ‘standing’ to appear in an Article III court and says it has filed its own petition for certiorari:

Out of an abundance of caution, the Commonwealth is also filing a conditional cross-petition for a writ of certiorari raising its Tenth Amendment and Spending Clause arguments, in the event the Court determines that such a cross-petition is required in order for this Court to reach those issues. See Conditional Cross-Petition for a Writ of Certiorari (filed July 20, 2012.)

Their petition squarely addresses the Tenth Amendment and Spending Clause issues. Massachusetts writes:

In addressing the constitutionality of DOMA, this Court should also consider the Commonwealth’s Tenth Amendment and Spending Clause arguments pressed and decided below, which present important questions of federalism that are best addressed in a case where a State appears as a party. As the Commonwealth’s response explains more fully, the Tenth Amendment and Spending Clause provide additional and independent bases for affirming the judgment in the Commonwealth’s favor.

Massachusetts is filing its petition because of the First Circuit’s analysis, which did not expressly rely on the Tenth Amendment and Spending Clause claims, therefore, Massachusetts is concerned the Court might not review those issues without a cross-petition.

While pointing out that it details its arguments more fully in its reply brief, Massachusetts suggests that DOMA is “a sweeping and unprecedented federal incursion into an area that, for centuries, has been a domain of exclusive State regulation” and therefore violates the Tenth Amendment. And because Section 3 bears no relation to the federal programs at issue, it violates the Spending Clause as well.

The Court will decide whether to take this or other DOMA challenges either at its conference on September 24 or in early October.

Thanks to Kathleen for these filings


  • 1. Sammy K  |  July 25, 2012 at 10:20 am

    Wow its sad to see the lengths bigots will go to defend themselve and their "Biblical principles" relating to homosexuality but apparantly having no trouble lying:

    Chick-fil-a creates fake facebook account to defend comments:

  • 2. Gregory in SLC  |  July 25, 2012 at 10:43 am

    would be interesting to find out if legitimate….as article states, could be someone "just trying to make CFA look bad"…..similar to how NOM's Twitter acct was hacked a while back…

  • 3. Gregory in SLC  |  July 25, 2012 at 11:48 am

    well, the L.A. times are reporting the gizmodo reference….and note CFA not welcome in Chicago either:

    guess the chicken really hit the fan:

  • 4. Mike in Baltimore  |  July 25, 2012 at 1:53 pm

    Back on topic to the article:

    I find it interesting that one of the reasons BLAG is using for NOT using heightened scrutiny is that they are arguing that the GLBT community is political powerful.

    If that were the case, would DOMA and the other discriminatory laws on the books be on the books if the GLBT community was so politically powerful?

  • 5. Seth from Maryland  |  July 25, 2012 at 8:54 pm

    HI governor seeks to be part of marriage suit:
    Hawaii Gov. Neil Abercrombie should remain as a defendant in a lawsuit against the state by two women who want to get married, but he believes a ban on same-sex marriage is unconstitutional, a lawyer representing him said in court Tuesday.

    U.S. District Court Judge Alan C. Kay heard lengthy arguments on the merits of the lawsuit by Oahu couple Natasha Jackson and Janin Kleid, who want to be married and not simply enter into a civil union. They say they need to be married in order to get certain federal benefits. Co-plaintiff Gary Bradley wants to be able to marry his foreign national partner to help him change his immigration status, said John D'Amato, who is representing the plaintiffs.

  • 6. Seth from Maryland  |  July 25, 2012 at 8:55 pm

    Kay also heard arguments on whether Abercrombie should remain a defendant in the case. Hawaii Family Forum, a Christian group that has been allowed to intervene in the case, argues Abercrombie has no place on either side of the lawsuit, partly because he is not the state official in charge of issuing marriage licenses. Abercrombie signed Hawaii's civil union legislation into law last year, allowing same-sex and opposite-sex couples to enter into a civil union with the same state rights and responsibilities as traditional marriage.
    The argument by Abercrombie attorney Girard Lau puts the governor in a unique position of both defending and supporting the lawsuit. It also puts him on opposite sides of the courtroom from his health director, Loretta Fuddy, who is fighting to uphold Hawaii's existing law

  • 7. Seth from Maryland  |  July 25, 2012 at 8:55 pm

    He is definitely connected and can provide the redress plaintiffs seek," Lau told the court in arguing that Abercrombie's powers have direct bearing in the lawsuit. Removing him from the case, "unfairly penalizes" Abercrombie for allowing Fuddy to defend the law, contrary to his stance that it should be struck down.

    Kay said he's inclined to allow Abercrombie to remain a party in the suit but he didn't immediately issue a ruling.

    He also did not rule on other arguments made Tuesday, including whether the plaintiffs should prevail.

    "Hawaii has drawn the line between civil unions and marriage," D'Amato said. "Opposite-sex couples may cross that line at will." Everything that's afforded by civil unions is also afforded by marriage — except the name marriage, he said.

    The case isn't about discrimination against homosexuals, argued Bill Wynhoff, attorney for Fuddy. Under Hawaii law, two men or two women can't marry, regardless of sexual orientation, he said.

  • 8. Seth from Maryland  |  July 25, 2012 at 8:58 pm

    Marriage recognizes a "natural procreative capacity" of opposite-sex couples, providing an incentive for couples to stay together and raise their children, argued Dale Schowengerdt, an attorney representing Hawaii Family Forum.

    D'Amato noted that Jackson and Kleid are expecting a child.

    Kay also heard arguments by Clyde Wadsworth, an attorney representing Equality Hawaii and Hawaii LGBT, which filed a "friend of the court" brief. He noted the case's similarities with California's ban on same-sex marriage, known as Proposition 8.

    "The parallel with California is striking here," he said.

  • 9. Seth from Maryland  |  July 25, 2012 at 9:01 pm

    looks like our side is going to win in Hawaii, and our side should, its time for this discrimnation to end

  • 10. Mike in Baltimore  |  July 25, 2012 at 9:55 pm

    Hmmm. My mother and second step-father were married for almost 40 years, and they didn't have any children. Their marriage ended when my step-father died.

    My paternal grandparents had 14 children, but remained married for more than 30 years after the last child was born. Their marriage ended when my grandfather died.

    I was with my partner for almost 23 years, until he died of lung cancer. Since we were/are both male, and had no intention of adopting children, I don't think having children was an incentive for our relationship staying together.

    From my (acknowledged small) experience, it is not the incentive for children keeping the couples together, but rather love and respect for the partner that kept the marriages/relationship together.

    And how is the 50% divorce rate of (especially bibble-belt) America explained? I'm sure that many of those divorces are 'complicated' by who gets the kids. If the kids were keeping the couples together, then there wouldn't be so many custody battles, would there?

  • 11. Steve  |  July 26, 2012 at 4:43 am

    Infertility has never been a bar to marriage anywhere in the US. Impotence (and non-consummation in general) has in some places and some times, however. So in a way, it could be argued that marriage is more about sex than procreation.

  • 12. Bill S.  |  July 26, 2012 at 7:33 am

    "The case isn't about discrimination against homosexuals, argued Bill Wynhoff, attorney for Fuddy. Under Hawaii law, two men or two women can't marry, regardless of sexual orientation, he said."

    Talk about a weak argument. It is very striking to the defendant's arguments in Loving v. Virginia: The law doesn't violate the Equal Protection Clause because everyone is treated equally: no black person can marry a white person and no white person can marry a black person.

  • 13. Steve  |  July 26, 2012 at 8:55 am

    Even earlier. The CA Supreme Court struck down that line of argumentation in Perez v. Sharp. That was in 1948. Actually, In re. Marriage Cases was partially based on Perez.

  • 14. chris hogan  |  July 26, 2012 at 7:25 am

    Funny how the authors of DOMA never imagined anyone would actually challange it on rational, legal grounds. They probably thought those "queers" would never concern themselves with such things as taxes, inheritance(all they want to do is screw and prance around), social security(God's plan is kill them all with AIDS before they're 35), or moving to another state(They all live in San Francisco, don't you know?). They also thought gay marriage would at best be a temporary aberation. My, how things have changed!

  • 15. AnonyGrl  |  July 26, 2012 at 10:09 am

    Wait… can we still prance?

    Yes indeed things have changed. And SO much for the better!

  • 16. Lymis  |  July 26, 2012 at 1:49 pm

    We're ALLOWED to prance. Some of us have been waiting for marriage equality long enough that our practical ability to prance has been significantly reduced by time. My knees aren't what they used to be, nor is my back.

    However, I intend to make an exception when DOMA falls, even I need a walker to help me with my prancing.

  • 17. David Henderson  |  July 27, 2012 at 8:26 am

    I find it very interesting that Massachusetts is including points from both Chief Justice Roberts and the four dissenters (Scalia, Thomas, Alito, and Kennedy) from the Obamacare case in support of its Spending Clause argument. Clearly they are looking for broader support in the decision than just 5-4, and that's a great way to do it.

  • 18. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 8:48 pm

    […] its Massachusetts reply brief, addressing the Spending Clause and Tenth Amendment violations alleged by the state of Massachusetts in regards to Section 3 of DOMA, the Justice Department writes that […]

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