DOMA and Massachusetts Officially Divorce


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.



  1. TampaZeke says

    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.

  2. says

    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?

  3. Tyler says

    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)?

  4. says

    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.

  5. Timzilla says

    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?

  6. Derek M says

    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!

  7. Sean says

    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!

  8. says

    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.

  9. john D says

    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.

  10. AM2 says

    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:

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

  11. Chitown Kev says

    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.

  12. Duane says

    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?


  13. Pender says

    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?

  14. Tyler C says

    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.

  15. Robert C. says

    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.

  16. gayalltheway says

    I’m no legal expert but isn’t it the case if the DOJ decides not to appeal, then ONLY certain parts of DOMA will be struck down and will ONLY be applicable in Massachusetts until another case is being filed in another state (with marriage equality) challenging the Full Faith and Credit clause in the US Constitution?

    So the best case scenario is for the DOJ to appeal until it reaches the SCOTUS so that they can rule that the certain parts of DOMA (that are being challenged in these cases) are unconstitutional thus making it applicable to every state with marriage equality.

    I am just surprised that no one (who lives in one of those marriage equality states) has filed lawsuit challenging DOMA in terms of sponsoring foreign-born same-sex spouse to live in the US. I think there is a really strong case there because the judges always look for evidences of “harm done to individuals/parties” and in the case of gay and lesbian US citizens and permanent residents not being allowed to sponsor their foreign partners/spouses for ‘green cards’ because of DOMA, the harm inflicted upon them are horrendous, inhumane and incalculable. I know there are a few advocacy groups lobbying the Congress to pass the UAFA for exactly this reason but I don’t think they have the support needed to get the bill passed anytime soon. So, perhaps a lawsuit will be a better solution to correct this mistreatment of same-sex binational couples here in the US.

  17. Zlick says

    But so what? Even if this is appealed and the decision stands, who’s going to make the federal government and the internal revenue service treat same-sex marriages in Massachusetts differently than same-sex marriages in Iowa?

    Correct me if I’m wrong, but hasn’t the federal government already ignored rulings from federal judges regarding enforcement of DOMA provisions?

  18. Tank says

    @ZLick: No I don’t believe so.

    @Commenters criticizing Ari: Ari’s post is actually pretty decent.

    Court judgments are automatically stayed for 14 days. If the cases are not appealed within the 14 day period, and no other stay is granted, then DOMA Section 3 is dead in Massachusetts.

    The government has 60 days to appeal after the entry of the final judgment (so from today’s date). If the government does NOT appeal by October 13th (give or take a couple days) then the decision is final, and DOMA Section 3 cannot be applied in Massachusetts. Technically, even if the case is appealed, if the government is not able to obtain a stay (they probably will be), then DOMA is still dead in Massachusetts (at least until the First Circuit rules on appeal). This means that, during this “nether period,” the government and all federal agencies, including IRS, Social Security, etc. would be forced to recognize all Massachusetts same-sex married couples and treat them identically to opposite-sex-married couples. But again, the effect of these judgments are limited to Massachusetts. Nonetheless, it’s a huge deal because, realistically, the IRS, Social Security, and all the other agencies out there can’t reasonably have one rule for Massachusetts and another rule for the rest of the states.

    (Section 3: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”)

    (FRCP 60:
    “(a) Automatic Stay; Exceptions for Injunctions, Receiverships, and Patent Accountings.

    Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after its entry.”)

  19. Tank says

    @AM2: Your post is fairly inaccurate. First, Judge Tauro ruled on the summary judgment motion in July, not June. Second, the Washington Blade article you cite to dates from BEFORE the final judgment entered yesterday.

    As of yesterday, the 60 days has in fact started ticking. The judgments are automatically stayed 14 days. If the stay is not extended by either Judge Tauro, the First Circuit, or the Supreme Court (in all likelyhood, it will be), then DOMA is dead in Massachusetts, even pending appeal.

  20. Tank says

    @gayalltheway: That is only the best case scenario if you think SCOTUS will agree that DOMA is unconstitutional. This is probably a long shot.

    That’s why most think that the best case is actually for the DOJ NOT to appeal. This way, DOMA Section 3 (arguably the most important section as it defines what a “marriage” is for hundreds if not thousands of federal bills and hence federal benefits) would be completely dead in Massachusetts. And since it would be a bit unworkable for all federal agencies to have one rule for Massachusetts and another rule for the rest of the country, it would probably lead to DOMA’s demise nationally.

    Moreover, if the Massachusetts case is not appealed, while it’s true that it has no BINDING i.e. precedential effect as to other states, it would have strong persuasive effect in other states. Thus, more and more states might INDIVIDUALLY find DOMA unconstitutional based on Judge Tauro’s reasoning, similarly gradually killing DOMA.

  21. Joe says

    This guy’s an amateur. The implications of the court’s declaring portions of DOMA unconstitutional on 10th amendment grounds has been *thoroughly* discussed on legal blogs and in the media. It’s not something “profound” that has been missed. Is a stay in place or not? If not, what are the consequences of the decision for married same-sex couples in MA now? Couples outside of MA? These issues are fast-moving and complex and have significant real world implications for many thousands of people. Towleroad needs to find someone who can do them justice.

  22. Tank says

    @Joe: An automatic stay is in place for 14 days. At this point, we don’t know if the stay will be extended beyond that point, but it is likely (but not absolutely certain) that either Judge Tauro, the First Circuit, or the Supreme Court will extend the stay pending appeal.

    The stay will not be extended unless the government asks for it to be extended (and even then it is not a sure thing), which at this point they have not done.

  23. anon says

    I think there is some confusion in the description here. The court ruled that a federal law violated the US (federal) constitution, so the fact that the ruling applies to Mass. has little to do with Federalism, and everything do with the jurisdictional prerogatives of the district court! Essentially, the courts are minded not to step on each others toes. However, a ruling like this applies to only one district clearly violates another constitutional principle that federal laws are only either constitutional or not. The idea that different circuits can interpret clauses differently is one thing, but wholesale rejection is another. As a practical matter though, few states allow gay marriage anyway.

  24. BillyBoy says

    We’re still waiting for answers. Your source for the final judgment? Doesn’t an automatic 14-day stay begin when the final judgment is entered, rather than the “no stay” you describe? Even most of your expansion/apology ignores the real problems with your report, like the 10th amendment smokescreen.

    You need to back up your reporting.

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