Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
This article can be found at:
Latest Posts

Administration to Massachusetts: “You Can’t Force Us to Treat Gay People Equally”

Timothy Kincaid

November 2nd, 2009

The State of Massachusetts is suing the Federal Government over what is, at heart, a states-rights issue.

For the history of our nation, the states have the right to determine and define marriage. Although the US Supreme Court placed limitations on the definition, barring states from denying mixed-race marriages, the states have enjoyed broad freedoms in this area. The age one can marry varies, as does blood test requirements, residency rules, pre-marital counseling, closely related relative rules, and a number of other issues.

And for the history of our nation, the Federal Government has said that if your state recognized your marriage, they would as well.

Until 1996. That year the Federal government passed the Defense of Marriage Act, in which it said “The federal government defines marriage as a legal union exclusively between one man and one woman.”

In 2004 Massachusetts began allowing marriage between persons of the same sex. But the federal government, for the first time, refused to recognize the state’s legal marriage. So Massachusetts is suing the feds claiming that not only do they not have the right to define marriageas “a legal union exclusively between one man and one woman”, they don’t have the right to define it at all.

The Obama Administration, announced that while the President opposes DOMA, his administration will defend it in court. On Friday we got a taste of the direction of that defense.

The Department of Justice is entirely ignoring the rights of states to have their marriages recognized and is instead posturing the argument as that of a state trying to dictate the benefits policies of the Federal Government.

Stating that “There is, however, no fundamental right to marriage-based federal benefits,” the feds are saying that therefore they can pick and choose to whom they will provide benefits. They are, of course, failing to acknowledge that such benefits are, and have always been, based on qualifications that are defined by states. (A/P)

Justice Dept. spokeswoman Tracy Schmaler said any state “can allow gay and lesbian citizens to marry and can make its own decisions about how to treat married couples when it comes to state benefits.”

“Massachusetts is not being denied the right to provide benefits to same-sex couples and, in fact, has enacted a law to provide equal health benefits to same-sex spouses,” she said.

But the issue isn’t about forcing the Feds to offer joint tax returns; rather, it is much bigger. It is about whether the State of Massachusetts is truly free to define marriage for the residents of their state or whether that determination has been transferred to Congress.

Perhaps the administration believes that DOMA will be reversed before the SCOTUS could hear this case. Otherwise, I’m not sure that they are pursuing an argument that holds much weight.

Either the Federal Government recognizes marriages as defined by the states, or it has some unique recognition of its own. Either it accepts the registration of the states, or it applies a consistent nation-wide registry with rules relating to age, blood-line, testing, counseling all consistent from sea to shining sea. And considering that states have jealously held family law as their purview, such a usurpation of states’ rights would likely result in political revolt.

But without such a registry, the feds may be facing a tough legal challenge. It is difficult to argue for recognition as defined by the various states – with a narrow exception solely to exclude same-sex marriages – without running foul of the problems that Colorado found in Romer v. Evans. You cannot create and define a group of people solely for the cause of denying them the rights shared by others. And with a handful of states now recognizing, registering, and solemnizing same-sex marriages, excluding just those couples seems to me to be a clear violation.



November 2nd, 2009 | LINK

This is why somebody in congress needs to SUBMIT A BILL right now to overturn this.

November 2nd, 2009 | LINK

Meanwhile the legalization of pot gets more fierce advocacy from the executive branch..

Priya Lynn
November 2nd, 2009 | LINK

I never heard that Burr. If that’s true its about time. No way can society justify making alcohol and cigarettes legal and pot illegal.

November 2nd, 2009 | LINK

Well they’ve basically decided not to enforce federal law against medicinal use.

And yeah I don’t have a problem with that, but it only proves that the administration is not mortally bound to uphold laws it doesn’t agree with.

Priya Lynn
November 2nd, 2009 | LINK

I see.

November 2nd, 2009 | LINK

The feds limited states freedoms when they implemented the no-discrimination to blacks. They have the right to do anything they wish to if you take that as a valid precursor.

November 2nd, 2009 | LINK

that only goes in one direction Joel. The feds didn’t “limit” anything, they required that *all* citizens have a certain minimum level of rights that a state couldn’t go below. This is the opposite. The fed is refusing to recognize the rights granted by the states.

November 3rd, 2009 | LINK

The Respect for Marriage Act would overturn DOMA.

paul j stein
November 3rd, 2009 | LINK

As far as legal acceptance of medical pot… I think the DRUG companies would surely be in bed with the TOBACCO companies. As a former resident of North Carolina that will be the natural course of things and is most likely in the works off the record as we speak. I was in trial groups for DRONABONAL in 1993 while getting treatment at UNC. With tobacco revenue drying up it is a “no brainer”. Too many lobbiest$$$$$$ to be had on that issue and TAX REVENUE!

November 3rd, 2009 | LINK

A compromise would repeal DOMA but still allow states to determine whether or not they will recognize out of state marriages. The Feds should be required to recognize all valid marriages, however.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.