Box Turtle Bulletin

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

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.