The Volokh Conspiracy - (Not Just) Another DOMA Challenge:

The federal complaint in Commonwealth v. HHS was filed yesterday by Massachusetts, which is asking for federal recognition of its same-sex marriages, not for the invalidation of all state laws limiting marriage to opposite-sex couples. Massachusetts makes two federalism-based constitutional claims against Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law.

The first claim is that Section 3 "violates the Tenth Amendment, exceeds Congress's Article I powers, and runs afoul of the Constitution's principles of federalism" by creating an extensive federal regulatory scheme in a field ("domestic relations") reserved exclusively to the states. Complaint at 22. That, says Massachusetts, interferes with a state's traditional authority to define marriage as it sees fit.

The second claim is that Section 3 "violates the Spending Clause" because it (a) induces the state to violate the Equal Protection Clause and because (b) "there is no nexus between discriminating against individuals in same-sex marriages and the purposes advanced by" specified federal programs. Complaint at 23-24.

The lawsuit is different from other pending challenges to Section 3, see here and here, because it's brought by a state, not gay couples, and because the core issue is federalism, not individual rights.

As a policy matter, the Massachusetts lawsuit is a compelling challenge to DOMA. The Complaint offers some very interesting examples of ways in which Section 3 complicates a state's recognition of same-sex marriages and withholds important benefits from gay families. These range from large and important federal deprivations, arising from programs like Social Security and Medicaid, to obscure but poignant ones.

In the latter category, for example, falls federal funding for state-run veterans cemeteries, where both vets and their spouses are eligible to be buried. Massachusetts was told by the Veterans Administration that it would lose federal money for upkeep of a cemetery if it allowed the same-sex spouse of a vet to be buried there. Complaint at 20-21. A six-page addendum specifies some of the more than 1,000 ways that federal law confers entitlements or imposes obligations on married couples — all of which are limited to opposite-sex couples under Section 3.

Moreover, again as a policy matter, the Massachusetts lawsuit convincingly sketches several ways that Section 3 enlarges federal authority and undermines state authority in an area of traditional state control. Section 3 complicates, and imposes identifiable costs upon, a state's recognition of its own citizens' same-sex marriages. The state, in essence, must keep separate books for same- and opposite-sex marriages where eligibility for federal benefits is concerned. And, if it wants same-sex couples to have the same benefits available to opposite-sex couples, it must make up the difference out of its own revenues. Section 3 is a departure from the tradition of federal reliance on the states' definition of marriage, as Massachuestts says. There is a genuine concern about state authority here. Overall, these policy arguments are a strong rebuttal to the Obama DOJ's view that federal "neutrality" justifies Section 3 because otherwise non-SSM states will be forced to subsidize SSM in places like Massachusetts.

But I am less persuaded that these concerns rise to constitutional dimensions, at least under existing precedents. For all the harm it does, DOMA does not forbid a state to define marriage as it sees fit. DOMA does not forbid a state to provide equal marital benefits and privileges to same-sex couples under its own laws and programs. At most, it makes a state's recognition of same-sex marriages more cumbersome and costly than it would be if the federal government continued to defer to the state definition. This could, at least in theory, though probably not in fact, discourage a state from trying same-sex marriage.

All of Massachusetts' examples of federal "imposition" of unprecedented costs and regulation are in fact uses of Congress's Spending power. As the Court understands that power, in South Dakota v. Dole, Congress can spend in areas it could not directly regulate. Congress is free to dangle monetary carrots or brandish financial sticks within very broad limits, even in areas historically left to state power. The connection between a condition on the funds and the spending program itself need only be "rational." In the Wonderland of Constitution-speak, a law can be crazy without being irrational.

Massachusetts also appears to rely on a case called New York v. United States to argue that Congress is "commandeering" it to administer a discriminatory federal program. But there's nothing unusual about Congress's decision to set up a federal benefits program and then define the limits of eligibility. A state might want the retirement age to be 55, but Congress can make it 62 or 65 or 105. A state might want to make the middle class eligible for assistance in obtaining health benefits, but Congress can limit federal eligibility to poor people — as it defines "poor." All of these things might increase a state's administrative costs, discourage experimentation, and be terribly unfair to people left out. But that doesn't make them unconstitutional.

What Congress can't do, to be sure, is to limit eligibility in a way that violates constitutional rights. It couldn't make Medicaid available only to whites. Congress also can't try to induce a state to violate individual constitutional rights. It couldn't deny Medicaid money to states that permit abortion. Parts of Massachusetts' Complaint do, in fact, argue that denying marriage to same-sex couples would violate equal protection principles. That's the implication of the state's claim that DOMA forces it into either facilitating the federal government's marriage discrimination or losing federal aid.

In that respect, Massachusetts' lawsuit is a cousin to the existing DOMA challenges. Success for Massachusetts would likely help advance a result it expressly disclaims: the invalidation of all laws excluding gay couples from marriage. The upshot, then, is that a lawsuit to protect state power against a one-size-fits-all federal definition of marriage would hasten a one-size-fits-all federal definition of marriage.

	[Dale Carpenter, July 9, 2009 at 11:46pm] Trackbacks (Not Just) Another DOMA Challenge: The federal complaint in Commonwealth v. HHS was filed yesterday by Massachusetts, which is asking for federal recognition of its same-sex marriages, not for the invalidation of all state laws limiting marriage to opposite-sex couples. Massachusetts makes two federalism-based constitutional claims against Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law. The first claim is that Section 3 "violates the Tenth Amendment, exceeds Congress's Article I powers, and runs afoul of the Constitution's principles of federalism" by creating an extensive federal regulatory scheme in a field ("domestic relations") reserved exclusively to the states. Complaint at 22. That, says Massachusetts, interferes with a state's traditional authority to define marriage as it sees fit. The second claim is that Section 3 "violates the Spending Clause" because it (a) induces the state to violate the Equal Protection Clause and because (b) "there is no nexus between discriminating against individuals in same-sex marriages and the purposes advanced by" specified federal programs. Complaint at 23-24. The lawsuit is different from other pending challenges to Section 3, see here and here, because it's brought by a state, not gay couples, and because the core issue is federalism, not individual rights. As a policy matter, the Massachusetts lawsuit is a compelling challenge to DOMA. The Complaint offers some very interesting examples of ways in which Section 3 complicates a state's recognition of same-sex marriages and withholds important benefits from gay families. These range from large and important federal deprivations, arising from programs like Social Security and Medicaid, to obscure but poignant ones. In the latter category, for example, falls federal funding for state-run veterans cemeteries, where both vets and their spouses are eligible to be buried. Massachusetts was told by the Veterans Administration that it would lose federal money for upkeep of a cemetery if it allowed the same-sex spouse of a vet to be buried there. Complaint at 20-21. A six-page addendum specifies some of the more than 1,000 ways that federal law confers entitlements or imposes obligations on married couples — all of which are limited to opposite-sex couples under Section 3. Moreover, again as a policy matter, the Massachusetts lawsuit convincingly sketches several ways that Section 3 enlarges federal authority and undermines state authority in an area of traditional state control. Section 3 complicates, and imposes identifiable costs upon, a state's recognition of its own citizens' same-sex marriages. The state, in essence, must keep separate books for same- and opposite-sex marriages where eligibility for federal benefits is concerned. And, if it wants same-sex couples to have the same benefits available to opposite-sex couples, it must make up the difference out of its own revenues. Section 3 is a departure from the tradition of federal reliance on the states' definition of marriage, as Massachuestts says. There is a genuine concern about state authority here. Overall, these policy arguments are a strong rebuttal to the Obama DOJ's view that federal "neutrality" justifies Section 3 because otherwise non-SSM states will be forced to subsidize SSM in places like Massachusetts. But I am less persuaded that these concerns rise to constitutional dimensions, at least under existing precedents. For all the harm it does, DOMA does not forbid a state to define marriage as it sees fit. DOMA does not forbid a state to provide equal marital benefits and privileges to same-sex couples under its own laws and programs. At most, it makes a state's recognition of same-sex marriages more cumbersome and costly than it would be if the federal government continued to defer to the state definition. This could, at least in theory, though probably not in fact, discourage a state from trying same-sex marriage. All of Massachusetts' examples of federal "imposition" of unprecedented costs and regulation are in fact uses of Congress's Spending power. As the Court understands that power, in South Dakota v. Dole, Congress can spend in areas it could not directly regulate. Congress is free to dangle monetary carrots or brandish financial sticks within very broad limits, even in areas historically left to state power. The connection between a condition on the funds and the spending program itself need only be "rational." In the Wonderland of Constitution-speak, a law can be crazy without being irrational. Massachusetts also appears to rely on a case called New York v. United States to argue that Congress is "commandeering" it to administer a discriminatory federal program. But there's nothing unusual about Congress's decision to set up a federal benefits program and then define the limits of eligibility. A state might want the retirement age to be 55, but Congress can make it 62 or 65 or 105. A state might want to make the middle class eligible for assistance in obtaining health benefits, but Congress can limit federal eligibility to poor people — as it defines "poor." All of these things might increase a state's administrative costs, discourage experimentation, and be terribly unfair to people left out. But that doesn't make them unconstitutional. What Congress can't do, to be sure, is to limit eligibility in a way that violates constitutional rights. It couldn't make Medicaid available only to whites. Congress also can't try to induce a state to violate individual constitutional rights. It couldn't deny Medicaid money to states that permit abortion. Parts of Massachusetts' Complaint do, in fact, argue that denying marriage to same-sex couples would violate equal protection principles. That's the implication of the state's claim that DOMA forces it into either facilitating the federal government's marriage discrimination or losing federal aid. In that respect, Massachusetts' lawsuit is a cousin to the existing DOMA challenges. Success for Massachusetts would likely help advance a result it expressly disclaims: the invalidation of all laws excluding gay couples from marriage. The upshot, then, is that a lawsuit to protect state power against a one-size-fits-all federal definition of marriage would hasten a one-size-fits-all federal definition of marriage.