Massachusetts Attorney General Martha Coakley Files Constitutional Challenge to Federal Defense of Marriage Act 
Press Conference July 8, 2009

Attorney General Martha Coakley:  
Good afternoon, Massachusetts Attorney General Martha Coakley.  With me this afternoon is Assistant Attorney General Jonathan Miller on my right from the Civil Rights Division of the Attorney General’s Office, and to my left is the chief of the Civil Rights Division, Maura Healey. 
[sound of infant crying, laughter]
There’s approval for at least who’s here.
[laughter]
In this month of July, as we have just celebrated the Fourth of July and our Independence Day and the signing of the Declaration of Independence, we, or at least some of us, are reminded that the phrase, “All Men are Created Equal,” at the time really referred to only certain men, and at the time, only certain men who owned property. Much has clearly changed in this country since 1776. As our country grew, our population grew, and our Bill of Rights and the interpretation of them included a rational and evolving sense of what liberty and justice and equality for all meant. 
It’s not as important as to what the founding fathers would have done in the 18th Century, as to what their vision, based upon their espoused principal at the time, would do today.  And we believe that as Massachusetts, in 2004 when our Supreme Judicial Court interpreted those words of John Adams in our Constitution upon which the U.S. Constitution is based, to mean that if the state of Massachusetts is to confer rights and responsibilities to some married couples, it must provide equally to all couples who choose to assume those rights and responsibilities. 
Today, the Commonwealth of Massachusetts filed a lawsuit in federal district court challenging the constitutionality of Section 3 of the Federal Defense of the Marriage Act, otherwise known as DOMA. In 2004, as I mentioned, Massachusetts became the first state to end the exclusion of same-sex couples from marriage, and since that time, more than 16,000 committed and qualified same-sex couples have married in our state.  Our families, our communities, and even our economy, have seen the many important benefits that come from recognizing equal marriage rights, and frankly, no downside. 
However, we have also seen how many of our married residents and their families are being hurt by a discriminatory, unprecedented, and, we believe, unconstitutional federal law.  The Defense of Marriage Act, enacted in 1996, creates a federal definition of marriage limited to a union between one man and one woman.  What this means is that for married same-sex couples in Massachusetts, they are not recognized as married for purposes of all federal laws. 
We are taking this action today because, first, DOMA directly interferes with Massachusetts’ long-standing sovereign authority to define and regulate the marital status of its residents, which – by the way – all states have enjoyed, until this instance, to define and regulate the marital status of its residents. Massachusetts has a single category of married persons and we view all married persons equally and identically.  DOMA divides that category into two distinct and unequal classes of marriage in our state by denying hundreds of rights and protections to married same-sex couples and their families. 
Second, we believe that DOMA is a discriminatory law that unfairly penalizes married same-sex couples and their families.  And third, DOMA puts Massachusetts in the difficult position of choosing between complying with the mandates of federal programs that require Massachusetts to disregard marriages that are valid under our state law, or risk losing federal funding, by ensuring that Massachusetts residents are treated equally under our Constitution. 
DOMA is an act, as I mentioned, enacted in 1996 by our Congress.  It was passed in anticipation that the state of Hawaii would recognize the right of same-sex couples to marry.  It has two substantive provisions.  Section 3, which is the one we challenged today, it defines marriage as the union between one man and one woman for the purposes of all federal laws and regulations.  And I should mention that the other substantive provision, Section 2, is not challenged in our lawsuit. That establishes that no state shall be required to recognize a same-sex marriage that is entered into in another state.  That provision is known as the “Full Faith and Credit Provision,” and it is not challenged today by us in this lawsuit. 
But what DOMA does mean for Massachusetts couples with the application of Section 3, is that access to over 1,100 important rights and protections that directly affect couples and their families are affected.  These include federal income tax credits, employment and retirement benefits, health insurance coverage, and Social Security payments. 
The following are examples of some of the rights and protections that are denied to those couples.
Income tax, for example: married couples have the option to file jointly, which can enable them to pay lower taxes.  Spouses can contribute portions of their income to I.R.A.’s of their spouses, not in Massachusetts who are otherwise legally married. 
The gift tax: Spouses have an unlimited ability to make gifts and transfer property to one another without incurring tax consequences, but not for single-sex couples in Massachusetts. 
Flexible Spending Accounts, Social Security Spousal Benefits, Medicare, Medical Leave.
Public Safety Officer Benefits: For example, spouses of public safety officers – police officers or firefighters – and military veterans are entitled to healthcare coverage, annuities, and tuition fees, as well as survivor benefits, if their spouse is killed in the line of duty, but not in Massachusetts for those same-sex couples. 
Because of DOMA, all of those above rights and protections are denied to married same-sex couples and their families. 
As I mentioned, same-sex couples have been married quite successfully in Massachusetts for over five years.  They are entitled to equal treatment under the laws regardless of whether they are gay or straight.  Married same-sex couples seek nothing more than to be treated fairly and equally, like all other married couples, with all of the protections and responsibilities that come with marriage.  And we seek that in our lawsuit today. 
I might add that it is my belief, that because it has been so successful in Massachusetts, that other states, particularly in New England, have followed our lead, and we believe that the move toward equality in this country will dictate that it is only fair and just that same-sex marriages be recognized.  But our lawsuit again is confined to Massachusetts and the impact of DOMA on Massachusetts. 
It affects the Commonwealth as we are an employer. The Commonwealth issues family health policies to its employees.  These employees may obtain healthcare coverage for their spouses.  But because of Section 3 of DOMA, the Commonwealth must withhold additional federal taxes from married individuals in same-sex couples who choose to cover their spouses on their health insurance plans.  Different-sex spouses do not pay the extra income tax because healthcare coverage for those spouses does not count as taxable income under the federal tax code.
DOMA, through its application to the Internal Revenue Code, requires Massachusetts to be part of discrimination against same-sex couples, and frankly creates a paperwork nightmare and an unnecessary burden as we have this two-tiered system of bookkeeping for all of these benefits. 
It affects the Commonwealth, as we are an administrator of jointly-funded programs. For MassHealth, which is our Medicaid program, we receive funding from the federal government and provide healthcare coverage to low and moderate-income individuals. DOMA, requires by law, that we treat individuals differently depending upon whether they are same-sex couple or different-sex couples. 
In terms of veterans’ services, the Massachusetts Department of Veterans’ Services operates cemeteries in Agawam and Winchendon for the burial of Massachusetts veterans and their spouses.  We receive money for those purposes and federal grants to construct and improve them. The federal government has said that, in this instance, we cannot inter in either of its cemeteries the same-sex spouses of military veterans, because they are not considered to be spouses under federal law. That seems, to us, to not make sense and to be unfair. 
The theories by which we brought this lawsuit allege that they violate, that DOMA violates the Tenth Amendment, to the Bill of Rights.  It violates the Spending Clause, and we are seeking a claim of declaratory relief as to Massachusetts and the effect of DOMA. 
We are specifically seeking a declaration that Section 3 of DOMA, as applied to Massachusetts and its federally funded programs, is unconstitutional.  We are also seeking an injunction that prohibits the federal government and its agencies for enforcing DOMA against the Commonwealth.
We believe, based upon Tenth Amendment sovereignty issues, that Congress has impermissibly interfered with state sovereignty in violation of the Tenth Amendment of the United States Constitution.  Briefly, under our system of government, there are, although there are not many left, there are certain powers and authorities that are delegated to the federal government and others remaining to the states.  For over 200 years, the federal government recognized that the authority to create and regulate marital status was a power that belonged exclusively to the states and was an essential aspect of each state’s sovereignty. However, as a result of this statute, as of DOMA, the federal government invades that sovereignty, we believe, and is a violation of the Constitution. 
We also believe that it violates the Spending Clause, because under the Spending Clause power Congress has wide latitude to impose conditions on states seeking to obtain funding for a variety of programs.  We recognize that and we accept that. For example, Congress can require states not to discriminate on the basis of race as a condition for funding.  However, one clear limitation on congressional authority in this area is that Congress cannot induce states to violate the constitutional rights of its citizens in order to qualify for funding. 
Our lawsuit asserts that DOMA is unconstitutional because it now requires us, the Commonwealth of Massachusetts, to disregard the marriages of same-sex couples when implementing federally-funded programs.
Again, as our Supreme Court said under our Constitution, it is unconstitutional for Massachusetts to not allow same-sex couples to marry. We believe that we cannot and should not violate the equal protection rights of our citizens in Massachusetts who choose to be married. 
What this lawsuit does not cover?  It is, as I mentioned, limited to Section 3 and only on the Commonwealth. We do not assert any claims regarding how other states define marriage, nor is this necessarily about the right to marry. We don’t assert claims whether the federal constitution permits or prevents a state from extending civil marriage license to same-sex couples.
What we do seek to do today by filing this lawsuit, however, is to remedy the fundamental unfairness that DOMA causes to Massachusetts and its residents by denying those residents equal treatment under the law.