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DOMA and Massachusetts Officially Divorce

BY ARI EZRA WALDMAN

As some of you might remember, as as reported here, a federal district judge in Massachusetts ruled the Defense of Marriage Act (DOMA) unconstitutional under the 10th Amendment, which protects the prerogatives of the States, and the 5th Amendment, which ensures equal protection.  Judge Joseph Tauro's opinions are available here and here.

No, I'm not bothering you with old (but still good) news.  Lost in a frenetic day dominated by the Left Coast was that "back east", Judge Tauro entered final judgment in both cases, captions Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services.  Final judgment is a little archane:  It is the written determination of a lawsuit by the judge who presided at trial, which makes rulings on all issues and completes the case.  It's like hitting the "Send" button on your email.  The moment you send it, the email is out there and you can bet someone is going to read it.  But, only after those few seconds when you can still hit "Unsend" or "Recall" is the email officially (and in some cases, unfortunately) out there.  Though it is a little more complicated than that, you get the idea.

This case has so far not been appealed to the First Circuit, the appellate court sitting in New England.  This means that, as to Massachusetts, certain parts of DOMA, and its enshrined discrimination against same-sex couples, are officially unconstitutional. 

Thanks to loyal reader, Jason C., for making sure I'm on the ball.  And, to any Eli's out there, excuse the Cambridge-centered post.


UPDATE:  Clarification

Good afternoon, dear readers.  My apologies for an unclear post, so I would like to clarify a few things here.  Any confusion and errors in the original post are entirely my responsibility and while nothing I said was wrong, it was certainly unclear.  I should know better and will do a better job going forward.

I did not mean to imply that this case is over.  Entering final judgment, as some of the comments have noted, means that the clock for an appeal begins, giving the loser in the case -- in this case, branches of the federal government -- a set deadline to file papers with the First Circuit.  The open period is 60 days, so we will probably be looking at these cases again in two months.  in the earlier draft of this post, I meant to convey the fact that there has yet to be any appeal or sign that the federal government will appeal.  But, now that we have final judgment, we can start the waiting game.

President Obama has indicated that he wants DOMA repealed, which would be a great step forward for marriage equality.  The Department of Justice, in keeping with what many believe is its obligation to enforce laws on the books until the legislative branch acts, has been placed in a position where it has defended DOMA in various district courts.  The question here is a little different: Having defended DOMA in front of Judge Tauro, will the federal defendants in this case elect to appeal to the First Circuit?  We have to wait and see.


UPDATE:  Response to some comments.

I'd also like to take this opportunity to respond to some of the excellent comments and questions in the comments section.

I hope many of the questions have been answered by my clarification.  Again, my sincere apologies both for the delay in answering these questions and for writing an unclear sentence. 

@1truBob: You asked about what this means on Main Street, i.e., this ruling's effect on social security benefits, etc.  Good question.  We lawyers and law professors often lose sight of the fact that a fascinating legal inquiry has real implications!  One of the principal effects of DOMA is that it bars the federal government from granting any rights that it grants to opposite-sex married couples to same-sex married couples.  It was meant as a Last Stand against states that have marriage equality.  If this ruling stands -- after any appeals -- married, same-sex couples in Massachusetts would have access to all those rights and benefits that comes with being married in the eyes of the federal government.

But, there's the rub.  If you go back and read these opinions, they only apply to Massachusetts, or, more specifically, the ruling that parts of DOMA are unconstitutional impacts the lives of married, same-sex couples in Massachusetts.  If the plaintiffs -- Gill and Massachusetts Attorney General Coakly -- win on appeal, a First Circuit decision may, and I have to repeat may, enforce Judge Tauro's decision across the First Circuit, which includes New Hampshire, Maine, Rhode Island and Puerto Rico.  I do not see that happening because the case is unique to Massachusetts.  Then again, as a former appellate attorney, it was often my job to limit holdings and narrowly construe cases, so this might be some professional bias here.

This is where appellate strategy comes in.  This is a fairly good assessment of some of the interesting twists and turns this case could take and why strategy on appeal is supremely important.

The way our system works is that a single federal district judge in, say, Boston, cannot automatically hold sway over the law in, say, Topeka, Kansas.  We do that because we believe in federalism in this country.  We believe in state's rights and the existence, to some varying extent, of the right of different states to act differently when it comes to state issues.  Marriage is usually one of those state issues, which is why there are so many conservative legal scholars who believe DOMA is unconstitutional.  By legislating on marriage -- traditionally a state issue -- the federal legislature violated the 10th Amendment, which reserves for the States powers not delegates to the federal government.

But the decision of a circuit court of appeal could impact more than just one state.  In the DADT case out west, Witt v. Department of the Air Force, the Ninth Circuit held that accusations of homosexual activity have to be based on credible sources.  That is law in every Ninth Circuit state, not just California or Idaho.  But, the district court's decision in Witt was different that Judge Tauro's decision in these cases.  In Witt, the judge did not limit his conclusion to citizens of California.  Judge Tauro explicitly limited ruling to the people of Massachusetts.  An appellate court would have to maximize its decision without being asked to have an effect on other states.  I'm not saying it cannot happen, but its hard to see it.

UPDATE:  Some implications of Judge Tauro's decision

Many commentators and analysts appear to be missing something profound -- namely, the implications that Judge Tauro's decisions have on other issues, such as health care reform and other federal regulatory programs.  Part of Judge Tauro's decision relies on an empowered 10th Amendment, which is a talisman among conservatives and legal scholars on the right.  Conservatives have argued against everything from the New Deal to civil rights legislation to health care reform on the basis of the 10th Amendment, which appears to limit federal regulatory intervention in areas not specifically delineated to them in the Constitution.  Of course, it's not as simple as that.   A 10th Amendment on 'roids can duke it out with a Commerce Clause on HGH and it's not clear who wins that cage match.  It's a battle that's been going on since the late 1800s and shows no signs of abating.

Judge Tauro may have given liberals and marriage equality advocates a great result, but legal scholars on the left should be somewhat concerned about the reasoning he used to get there.

 

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Comments

  1. Cambridge? What's Cambridge?

    Isn't that the home of Lesley University?

    I think they have some good head shops there.

    Posted by: 24play | Aug 13, 2010 2:04:17 PM


  2. I'm a bit confused. Has it just not been appealed yet or is it not being appealed? And if it isn't being appealed, who isn't appealing it, the Federal Government?

    Even though this move would keep the order from having broader effect, throughout New England and potentially nationwide, I can't imagine that having the Federal Government refusing to appeal speaks well for their faith in this law and I can't imagine that it speaks well for the laws future chances against other lawsuits. The fact that they didn't appeal this time seems to be strong evidence in future cases that the Federal government knows that this law is unconstitutional. Therefore it should be repealed as it effects ALL states.

    Posted by: TampaZeke | Aug 13, 2010 2:08:27 PM


  3. So, what are the full implications of this? I'm a Mass resident and want to learn about all my "new" rights. Does this mean that we can file joint tax returns from Mass? Social security or pension survivor benefits? What if we marry someone from a different country -- does that person now have the same ability as a straight couple to have the individual from a different country become a full citizen?

    Posted by: Ryan | Aug 13, 2010 2:08:37 PM


  4. I believe Judge Walker issued a judgment very much like that yesterday. Doesn't that simply constitute the final judgment of the district court, and doesn't the federal government still have sixty days to appeal that judgment, either the original one on July 8th or this one (and which would therefore expire, at the earliest, on September 6th)?

    Posted by: Tyler | Aug 13, 2010 2:13:38 PM


  5. Does this mean the Federal Government is not going to appeal?

    Posted by: Sam | Aug 13, 2010 2:13:46 PM


  6. So what does this mean for our real issues with Social Security, IRS, COBRA, etc? What relief is granted?

    Posted by: 1truBob | Aug 13, 2010 2:15:49 PM


  7. so what parts of DOMA are still "constitutional"?

    Posted by: rick | Aug 13, 2010 2:17:28 PM


  8. No appeal has been filed...yet. The government has 60 days from today to file an appeal. One of the arcane things about requiring final judgments is that it delineates the time for appeal, not the memorandum decision. So mark your calendars for September 12, 2010. If no appeal is filed by that day, no appeal can be filed.

    Posted by: Nate W. | Aug 13, 2010 2:18:46 PM


  9. No appeal has been filed ... yet?

    Gerry Studds's surviving spouse will get his husband's SS survivor benefits when?

    Posted by: Glenn I | Aug 13, 2010 2:24:08 PM


  10. So DOMA is illegal in Massachusetts -- Isn't that like snow being illegal Bermuda?

    Posted by: Zlick | Aug 13, 2010 2:24:37 PM


  11. Why are you apologizing to Elis? For shame!

    Posted by: Alex 02139 | Aug 13, 2010 2:26:34 PM


  12. If it applies only in Mass and they alone are free of DOMA, how can that be Constitutional for the rest of us? Do we all have to get married in Mass to have our marriages count for the 1,200 federal marriage benefits?

    Posted by: Timzilla | Aug 13, 2010 2:26:45 PM


  13. I'm sharing many of the questions that those above have. I live on the other side of the Charles, and am soon marrying my partner. Will we have equal tax/health/etc benefits as every other married couple in the state? What if we move to ____?

    Please follow up!

    Posted by: Derek M | Aug 13, 2010 2:32:40 PM


  14. If DOJ does not appeal, then the U.S. government cannot but treat all states the same under Section 3 of DOMA (rather, treat them as if Section 3 did NOT exist, consistent with how it was ruled unconstitutional for MA). In my opinion, to do otherwise would blatantly violate 14th - equal protection. Hopefully Ari can find some time from his REAL job to give us his analysis. ;-) Thanks again, Ari!

    Posted by: Sean | Aug 13, 2010 2:36:33 PM


  15. "And, to any Eli's out there, excuse the Cambridge-centered post."

    Apology accepted.

    Posted by: Eli, 2013 | Aug 13, 2010 2:59:07 PM


  16. This is significant. The 60 day appeals clock starts today, so we will see where the POTUS truly stands on DOMA. Obama says that DOMA needs to be repealed, but let's see what actions he takes.

    Similarly, Gov. Schwarzaneggar & Atty Gen. Jerry Brown chose not to defend Prop 8. because they said it was not Constitutional and will not appeal the decision. The POTUS should follow their lead.

    Time will tell.

    Posted by: Ryan | Aug 13, 2010 2:59:09 PM


  17. It's maddening that appealing it would get this extended to other states, but there is no case for appeal

    Posted by: ravewulf | Aug 13, 2010 3:10:48 PM


  18. Like Derek M, I live on the "other side of the Charles," alas, though I'm on the side the extends westward from Cambridge, I'm on the edge near the Pacific Ocean, and therefore too many Smoots away from the Charles.

    I agree with those who say that a failure to appeal in these cases gives a good road map to any other state challenge. I can see four who can challenge DOMA right away (three in the same circuit). If Perry isn't challenged and Kamela Harris becomes AG, I could see a similar challenge coming out of California.

    Posted by: john D | Aug 13, 2010 3:12:50 PM


  19. This article is actually fairly inaccurate. The judgement from June was basically the announcement of his decision. Until today, it wasn't official. Now, there is a 60-day period that the government has to appeal.

    This article in the Washington Blade explains in full: http://bit.ly/bWhb1S

    As for what this means to people, GLAD (representing Gill in one of the two cases) has a wonderful FAQ: http://goo.gl/JDiL

    Posted by: AM2 | Aug 13, 2010 3:15:18 PM


  20. So does this mean that true marriage equality (with all federal benefits) exists in Massachusetts (but only Massachusetts)?

    Ooooooooooooooooooh, now I get it, it's sone Cambridge, MA-New Haven, CT hot mess!

    Elis indeed.

    Posted by: Chitown Kev | Aug 13, 2010 3:17:22 PM


  21. Why do you think the Federal government will not appeal the Tauro rulings? Has the period for filing appeals passed? Can you provide a link to evidence supporting that?

    Thanks

    Posted by: Duane | Aug 13, 2010 4:48:00 PM


  22. In fact, after judgment the government has 60 days to appeal, so the decision has not gone into effect, and we don't know whether there will be an appeal or not.

    Posted by: Carisa Cunningham | Aug 13, 2010 5:06:24 PM


  23. The question of when the government can appeal is completely separate from the question of whether the decision has been stayed. I don't know the answer to either, but it would be nice to see something authoritative. Has the decision been stayed, or hasn't it?

    Posted by: Pender | Aug 13, 2010 6:04:48 PM


  24. This commenter does not meet the usual high standards of Towleroad (and the Eli/Harvard crap is puerile). I hope Andy has a probation period written in to his contract.

    Posted by: Tyler C | Aug 13, 2010 7:14:48 PM


  25. Inaccuracies abound. There are more capable and experienced legal commentators out there. I encourage Towleroad to find one.

    No matter how many times you mention Harvard, it doesn't compensate for Cal Western.

    Posted by: Robert C. | Aug 13, 2010 7:48:30 PM


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