For Immediate Release - May 26, 2010

AG Urges Court to Strike Down the Federal Defense of Marriage Act

BOSTON - Today, attorneys from Attorney General Martha Coakley's Office appeared before United States District Court Judge Joseph L. Tauro and asked him to declare Section 3 of the federal Defense of Marriage Act ("DOMA") unconstitutional. The law, which defines marriage as a union between one man and one woman, affects more than 1,100 federal statutory provisions, and excludes more than 15,000 Massachusetts married same-sex couples and their families from critically important rights and protections.

Both at the hearing and in its written submissions to the Court, the AG's Office argued that DOMA violates the United States Constitution by interfering with the Commonwealth's sovereign authority to define and regulate the marital status of its residents. The Commonwealth also contends that DOMA exceeds Congress's authority because it requires Massachusetts to violate the constitutional rights of its residents by treating married same-sex couples differently from all other married couples in order to receive federal funds for various programs.

The Commonwealth filed a motion for summary judgment, seeking a ruling from the Court without a trial. The Commonwealth's submissions included affidavits from representatives of five Massachusetts agencies as well as five expert witnesses. This record, which has not been disputed by the federal defendants, outlined how DOMA harms the Commonwealth, why DOMA is historically unprecedented, and why gays and lesbians deserve protected status under the United States Constitution.

"Today, the Commonwealth asserted that equality and fairness should be the law of the land," said Attorney General Coakley. "We believe that DOMA is a patently discriminatory law that negatively affects thousands of Massachusetts families and the Commonwealth itself. Married same-sex couples should not have to wait any longer for equal treatment under the law, and Massachusetts should not be left with the unconstitutional choice between federal funds and treating its citizens equally."

DOMA was enacted in 1996 in anticipation of the possibility that Hawaii might license marriages between same-sex couples. Section 3 of DOMA created, for the first time, a federal definition of marriage. In 2004, following the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health, Massachusetts became the first state to license marriages between same-sex couples. Since May 2004, more than 15,000 same-sex couples have been married in Massachusetts. Currently, five states - Massachusetts, Connecticut, Iowa, New Hampshire, and Vermont - and the District of Columbia permit same-sex couples to obtain marriage licenses.

The Commonwealth is seeking to restore a two-century-long federal tradition of honoring all state marriages for the purposes of federal law. The Commonwealth submitted an affidavit from Harvard historian Nancy Cott describing this unbroken tradition, which continued even during periods where there were heated controversies about and wide divergence among state marriage definitions.

The Commonwealth contends that Section 3 of DOMA unlawfully creates separate and unequal categories of married individuals in Massachusetts, due to the fact that only different-sex married couples are considered married under federal law. Among other things, DOMA prohibits married same-sex couples from filing joint federal tax returns, collecting Social Security survivor benefits, being guaranteed leave from work to care for sick spouses, drawing on flexible spending accounts for medical expenses of spouses, and using gift tax and estate tax exemptions for spouses. These rights and protections affect all facets of life from the workplace to healthcare to retirement, and these laws significantly affect every married person.

The Commonwealth also argues that Section 3 of DOMA unlawfully requires Massachusetts to disregard valid marriages in its implementation of MassHealth and veterans' cemeteries, two federally funded programs.

MassHealth, the Commonwealth's Medicaid program, offers health care coverage to low- and moderate-income Massachusetts residents. Marital status is a key eligibility marker, and the federal government has told MassHealth that it must disregard the marriages of same-sex couples when assessing their eligibility. A failure to follow this directive could lead to the loss of federal funding.

The second program highlighted in the case relates to the burial of Massachusetts veterans and their spouses at cemeteries owned and operated by the Massachusetts Department of Veterans' Services. The federal government has informed the Commonwealth that burying a veteran's same-sex spouse on the same terms as any other spouse would violate federal law and could result in the federal government taking back all federal funds provided for the Commonwealth's cemeteries.

The Attorney General's Office is seeking an order that the federal government be prohibited from enforcing Section 3 of DOMA against Massachusetts. Additionally, it seeks a declaration that Section 3 of DOMA is unconstitutional.

This matter is being handled by Maura T. Healey, Chief of Attorney General Coakley's Civil Rights Division, and Assistant Attorneys General Jonathan B. Miller and Jessica Lindemann, also of Attorney General Coakley's Civil Rights Division.

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