My former home state of Massachusetts is going to bring the fight on gay marriage to the rest of the country, thanks to a lawsuit filed today by Commonwealth Attorney General Martha Coakley. The suit challenges the constitutionality of the 1996 “Defense of Marriage Act,” or “DoMA” because it infringes upon individual states’ ability to grant their citizens the right to marry and have those marriages recognized by other states and the federal government. DoMA permits states and the federal government to refuse to recognize same-sex marriages and civil unions performed in other states, where generally the Full Faith and Credit clause of the U.S. Constitution would otherwise require recognition of any legal marriage sanctioned by another state.
This lawsuit is likely to make big waves and presents the first significant federal legal assault on the constitutionality of DoMA and other anti-gay marriage laws. The Complaint is available here.
Individual states can generally grant their citizens greater rights and protections than the U.S. Constitution and federal law provide. As long as those state rights do not conflict with a federal right in a way that infringes upon a federal right (in which case preemption would likely apply), the state can establish new rights. For example, many states prohibit discrimination on the basis of sexual orientation, and several state constitutions have been interpreted by state Supreme Courts to grant greater protections over privacy, medical decisionmaking, open government, etc. than the federal constitution.
So, if Massachusetts can establish that the Commonwealth’s constitution has granted the right to marry another individual of the same sex to all citizens, regardless of sexual orientation, it may be able to persuade a judge to rule that federal laws cannot interfere with recognition of Massachusetts same sex marriages. It will be very interesting to see whether the Obama administration attempts to fight this lawsuit, since it could very easily take the position that its hands are tied by DoMA and somewhat invite the federal courts to find DoMA unconstitutional. However, to this point the Department of Justice under Obama and Eric Holder has not taken the sorts of gay-friendly positions that many hoped for.
This case could also end up on a certain approach to the Supreme Court, since it presents the sort of federalism and constitutional issues that the Court has granted certiorari to often in the last decade.
(On a side note, Attorney General Martha Coakley is likely using this case as an opportunity to position herself for higher office in the relatively gay-friendly Bay State. When I lived in Boston, Coakley was the Middlesex county (Cambridge) District Attorney and used a few high profile cases to vault her to the AG slot. With Ted Kennedy almost certain to retire at the conclusion of his current term, Coakley may be positioning herself well for a run for that Senate seat and building her statewide name recognition and favorables with this case. It is a shrewd political move in a state that has many people waiting to make the jump into Kennedy’s seat and looking for a way to distinguish themselves to voters. It seems strange to us down here in red Georgia, but in Massachusetts fighting for gay rights actually wins you votes! We can dream…)
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