On July 8, 2010, the District Court for the District of Massachusetts issued decisions in two cases finding Section 3 of the Federal Defense of Marriage Act (DOMA), which defines “marriage” as a legal union between a man and a woman, to be unconstitutional.  As a result, same-sex marriages recognized as legal in Massachusetts will also be entitled to recognition under various federal laws, unless the decisions are stayed pending appeal.

If the decisions are ultimately upheld, they will allow same-sex couples in marriages recognized under state law to file joint federal tax returns, to obtain employer-sponsored medical benefits tax-free, and to be protected by the spousal provisions of ERISA relating to qualified retirement plans.  In addition, same-sex spouses would be entitled to spousal benefits under Social Security.

In one of the cases (pdf), the Commonwealth of Massachusetts argued that DOMA conflicted with the traditional role of the states in defining and regulating marriage, and therefore violated the Tenth Amendment to the Constitution, which reserves to the states those “powers” not granted to the federal government.  The Commonwealth also argued that DOMA required the state to discriminate against certain of its citizens in the application of state law.  For example, a decorated Vietnam veteran and his same-sex spouse applied for burial rights in a Veterans’ Cemetery in Massachusetts, and the Department of Veterans’ Affairs advised the Commonwealth that if it allowed such a burial, the $19 million in federal funds received for the establishment of the cemetery would have to be repaid.  In addition, same-sex couples who are considered eligible for Medicaid on the basis of their family income, would not be if considered to be unmarried applicants.  As a result of applying Medicaid contrary to DOMA, the Commonwealth estimated that it had expended over $600,000 in additional benefits and lost over $2 million in federal funding for Medicaid.  The Commonwealth also objected to the extra expense of paying Medicare payroll taxes on imputed income for same-sex spouses of state employees arising from the provision of medical benefits to those spouses.  Judge Tauro noted that these examples placed DOMA “on a collision course” with the Commonwealth in the field of domestic relations.

In upholding the Commonwealth’s challenge, the Court found that because DOMA affected 1,138 different federal laws, including copyright protections, the right to care for a spouse under the FMLA, and testimonial privileges, it could not be sustained solely as an exercise of federal power under the “Spending Clause” (the right to determine how federal money is best spent to promote the general welfare).  Furthermore, because DOMA violates the Equal Protection Clause (as held in the companion case), DOMA cannot be justified even under the Spending Clause with respect to those applications addressing the disbursements of federal funds.  Finally, the Court referenced the “collision course,” and held that DOMA “plainly intrudes on a core area of state sovereignty – the ability to define the marital status of its citizens.”

In the other case (pdf), seven same-sex couples married under Massachusetts law and three surviving spouses of such marriages sought spousal (or survivor) benefits under the medical, dental and vision programs for federal employees (including the flexible spending program), Social Security retirement and survivor benefits, and the right to file jointly under the Internal Revenue Code. While dismissing one plaintiff’s claim because it was already pending before the Federal Circuit, the Court upheld the challenges of all other plaintiffs.  Specifically, Judge Tauro held that Section 3 of DOMA violated the plaintiffs’ right to equal protection under the law.  The Court reasoned that none of the rationales proffered by the proponents of DOMA constituted a rational basis for denying federal recognition to only one category of lawful state marriages – those between two persons of the same sex.  The Judge dismissed arguments set out in DOMA’s legislative history that the rights and privileges of marriage can be restricted to opposite-sex couples to encourage responsible procreation and child-bearing, to defend and nurture the institution of traditional heterosexual marriage, to defend traditional notions of morality, and to preserve scarce resources.  He also rejected the Justice Department’s current claim that DOMA maintains the status quo while the question of same-sex marriages is played out in the various states, on the grounds that traditionally the Federal government has allowed each state to define marriage on different grounds, even for the application of uniform Federal laws (analogizing to the equally-contentious issue of interracial marriage, which at various times was prohibited by over 40 states). 

Section 2 of the DOMA allows states to decline to recognize same-sex marriages validated by other states, despite the “Full Faith and Credit” provision of the United States Constitution.  Section 2 was not at issue in either of the cases beforethe Massachusetts District Court, but we can expect Section 2 to be subject to challenge in a future case if the court’s opinions are affirmed.  At present, Iowa, New Hampshire, Connecticut, Vermont, Massachusetts, and the District of Colombia allow same-sex marriages.

Susan K. Hoffman authored this entry.