Massachusetts State House.
Boston Bar Journal

A State’s Fight For Marriage Equality: Advancing Goodridge’s Promise by Ending DOMA

November 15, 2013
| Goodridge Special Edition

Healey_Mauraby Maura Healey

Five years after Goodridge, over 20,000 same-sex couples had been married in Massachusetts, and attempts to overturn the decision had been decisively defeated.  Despite these significant victories, it had become clear that, because of the Defense of Marriage Act (“DOMA”), state recognition of same-sex marriage could achieve only so much.  Because of DOMA, these couples – despite being lawfully married – were denied access to over 1,100 marriage-based rights and benefits under Federal law, and Massachusetts was forced to treat them as unmarried for purposes of Federal laws and programs.  The promise of equality and liberty articulated and recognized in Goodridge had brought into stark relief an unjust and discriminatory Federal law.

On July 8, 2009, Massachusetts became the first state to challenge the constitutionality of DOMA, and to this date, Massachusetts remains the only state to have appeared as a plaintiff in a lawsuit related to marriage equality.  How did the Attorney General take this step?  As a purely legal matter, the Attorney General could have brought suit as soon as the first same-sex couple was married.  The Attorney General represents the state, its agencies and its officials in many types of litigation, and enforces and safeguards constitutional and statutory civil rights and liberties in furtherance of the public interest.  She “shall institute or cause to be instituted such criminal or civil proceedings before the appropriate state and federal courts, tribunals and commissions as [s]he may deem to be for the public interest.”  M.G.L. c. 12, § 10.  The Attorney General has a general duty to take action to protect the interests of the state, the rights of its residents, and the public interest.  As a strategic matter, however, it made sense to have allowed the novelty of Goodridge to wear off somewhat before challenging DOMA.  Five years after the Goodridge decision, after equal marriage rights had been decided – by the court, by the legislature, and in the court of public opinion in Massachusetts as more and more residents had come to know, work and live alongside married people whose spouses happened to be of the same sex – the time was ripe.

Massachusetts’ interest in challenging DOMA was clear.  DOMA harmed the public interest of Massachusetts residents in many ways.  Social Security, Medicare, Medicaid, retirement benefits and pensions, military and veterans benefits, Supplemental Security Income for people with disabilities, Family Medical Leave Act protections, estate, gift and income tax benefits, and even immigration – to name just a few – were all off limits to same-sex couples who were legally married in Massachusetts.  Beyond that, DOMA harmed Massachusetts by forcing it to discriminate against a subset of lawfully-married couples by treating them as unmarried for certain purposes.  For example, in carrying out jointly funded state-federal programs like Medicaid, Massachusetts was given the choice either to perpetuate discrimination by treating married same-sex couples differently or to forego billions of dollars of federal funding each year.  The state, like other employers, was compelled to impute additional income to employees who added their spouse to their health care plan if that spouse was of the same sex.  In this and other ways, the state found itself an involuntary participant in DOMA’s machinery of discrimination.

As unjust as DOMA was, the odds against a successful challenge appeared daunting.  At the time Massachusetts filed its suit: only two other states allowed same-sex couples to marry; over forty states had laws or constitutional amendments banning same-sex couples from marriage; polls consistently showed support for equal marriage rights  to be less than fifty percent; all prior DOMA challenges had failed; and the U.S. Department of Justice was defending DOMA vigorously.  There was little legal precedent for our claims.  Never before had a state used principles of federalism to advance civil rights, let alone done so successfully.  While there were helpful guiding principles, those principles had never been tested successfully in court.  Assessing all of this, our office optimistically put the odds of surviving dispositive motions at thirty percent.  But given the significant harm DOMA caused to the public interest, there was no question but to pursue the case.

The Attorney General’s decision to file suit was significant not only in and of itself; together with the compelling Gill suit brought by Gay & Lesbian Advocates & Defenders on behalf of individual married couples, it informed the direction of subsequent DOMA litigation around the country.  Massachusetts was able to advance unique arguments that were unavailable to private plaintiffs.  The Attorney General’s case was framed in two ways: (1) to stop the federal government from declaring that an entire category of lawfully-married Massachusetts citizens were, for all federal purposes, “single;” and (2) to ensure equal protection of Massachusetts residents, free from unlawful intrusion by a discriminatory Federal law that required Massachusetts to treat similarly situated married couples differently.

The first was an argument based on federalism.  By enacting DOMA, Congress intruded into an area that has for centuries been the exclusive province of the states.  Throughout the history of our country, states (and prior to that the American colonies) determined marital status for purposes of both state and federal law.  Even in times of significant controversy – such as the debate over interracial marriage – and despite significant differences among states’ rules on marriage relating to age, consanguinity, and disability, state-issued marriage licenses were respected under Federal law.  That changed with DOMA, which for the first time interfered with the states’ power to issue marriage licenses that qualify the recipient as “married” under both state and Federal law.  The Attorney General’s argument was that Congress couldn’t simply reject a subset of marriages it didn’t like.  Ending the exclusion of same-sex couples from marriage advanced state interests in promoting marriage, stability and security in families, efficient allocation of household resources, the clear definition of legal relationships, and supportive environments for raising children.  All of these were furthered by extending marriage to more couples willing to assume its obligations, including couples of the same sex, and it was wrong for the federal government to deny them the same respect it gave to other state marriages.

The Attorney General’s second claim was that DOMA required Massachusetts to discriminate against its own residents.  By forcing Massachusetts to choose between discriminating against its own citizens and risking its eligibility for federal funds in connection with jointly administered federal-state programs, DOMA imposed an unconstitutional condition on the state’s receipt of federal funds in violation of the Spending Clause of the U.S. Constitution.  The clearest example was in the context of veterans funding.  The federal government gave Massachusetts funding to construct state cemeteries for the burial of veterans and their spouses and family members.  After Goodridge, the Federal Veterans Administration informed the state that it could not authorize the burial of a same-sex spouse in a veterans’ cemetery and that if Massachusetts did so, the federal government would seek to recapture federal funding for veterans services.  The only way Massachusetts could maintain federal funding and honor the service of those veterans would be to establish a “separate but equal” cemetery for them through the exclusive use of state funds.  This condition of unequal treatment violated the Equal Protection Clause and therefore was an unconstitutional condition of federal funding.

On July 9, 2010, a year to the day after Massachusetts filed its lawsuit in the United States District Court for the District of Massachusetts, Judge Tauro ruled DOMA unconstitutional, and Massachusetts prevailed on both counts of its complaint.  Individual plaintiffs in Gill also prevailed on their Equal Protection claim.  Following Judge Tauro’s decision, individual plaintiff couples filed DOMA challenges in Federal District Courts in Connecticut, New York, and California.  All of them relied on the same arguments and testimony originally presented by Massachusetts and the individual Gill plaintiffs.  Judge Tauro’s decision was upheld by the First Circuit, and similar decisions later issued from the Second and Ninth Circuits.

As we all know, the legal challenge that began here in Massachusetts ultimately ended when the U.S. Supreme Court declared DOMA unconstitutional.  But more than that has changed.  Since the time the Attorney General’s case and Gill were filed: the number of states allowing same-sex couples to marry has grown from 3 to 15 plus the District of Columbia; the President has turned from opposing to supporting equal marriage rights; the U.S. Department of Justice has gone from defending DOMA to having the U.S. Solicitor General argue against DOMA in the Supreme Court; our military has been integrated with the repeal of Don’t Ask Don’t Tell; and public support for marriage equality has grown from a minority to a majority view nationally.

While there is much left to do to protect civil rights and ensure equal treatment for LGBT people, it’s heartening to know that for families in Massachusetts and across the country, Goodridge, and its promise, is not only alive but thriving.

Maura Healey is the former Chief of the Public Protection & Advocacy Bureau and the Civil Rights Division of the Massachusetts Attorney General’s Office and was lead counsel in Massachusetts v. U.S. Dept. of Health & Human Services.