Gay Divorce? Now that the Justice Department appeals repeal of DOMA let's figure out what to do about gay marriage

The Justice Department appeals repeal of DOMA

The Justice Department has filed an appeal in the First Circuit, appealing 2 Massachusetts rulings that basically finds DOMA (Defense of Marriage Act) unconstitutional, on several fronts. The district court had found DOMA unconstitutional on several grounds: For one thing, it violates the Equal Protection Clause. But it seems that they are also arguing that it violates the Spending Clause and that it also violates the 10th Amendment which prohibits the federal government from infringing on matters that have been constitutionally allotted to the states. The LegalTimes:

The department filed its opening brief in the U.S. Court of Appeals for the 1st Circuit in two cases from Massachusetts: Gill v. Office of Personnel Management and Massachusetts v. U.S. Dept. of Health and Human Services.

A federal district judge last July held that the federal law, known as DOMA, was unconstitutional because it violated the equal protection component of the due process clause, exceeded Congress’ authority under the spending clause, and violated the 10th Amendment because it imposed on an area of regulation historically left to the states.
The Gill case was brought by Gay & Lesbian Advocates & Defenders (GLAD) on behalf of seven same-sex couples married in Massachusetts and three survivors of same-sex spouses. The second case was brought by the Commonwealth of Massachusetts.
At the center of the appeal is Section 3 of the federal law that defines “marriage” and “spouse” for purposes of federal law. The section excludes relationships between two persons of the same sex, even if they are treated as a marriage under state law, and excludes the members of such a couple from the term “spouse” for the purposes of any federal law or program.
The Gill plaintiffs successfully argued that they had been denied certain benefits of federal programs and laws because of DOMA. Massachusetts argued that it might be required to repay benefits of certain federal funding programs because of DOMA and that the law has a negative tax code impact on the state as an employer.

Even though the Obama Administration is opposed to DOMA (in other words, the Obama Administration is for same-sex marriage and does not define marriage in a traditional way that DOMA and other federal statutes do), still, the Justice Department is obliged to make any arguments in favor of this federal mandate, that can be made. And the argument they advance is that DOMA is “rationally related to legitimate governmental interests.” Again, LegalTimes:

In its brief, the Justice Department argued that DOMA is rationally related to legitimate governmental interests. It noted that the law was passed in 1996, a time when states were just beginning to address the issue of same-sex marriage.
“The Constitution permitted Congress to enact DOMA as a means to preserve the status quo, ensure consistency in the distribution of federal marriage-based benefits, and respect policy developments in the states without implicating other states or the United States, pending the resolution of the debate taking place in the states over whether to permit same-sex marriage,” said the brief, filed by Assistant Attorney General Tony West.
On Massachusetts’ 10th Amendment claim, the department argued, “Under Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), and this Court’s precedent, the Tenth Amendment `is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power,’ United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997). As DOMA was a proper exercise of Congress’s Spending Clause authority, the statute does not violate the Tenth Amendment.”

It will be interesting to see how this case pans out. My suspicion is that either way it goes, this will go to the Supreme Court and we will have a ruling, once and for all, if states can forbid same-sex marriages. Well, actually, no. I don’t think the Supreme Court will rule on whether states can forbid same sex marriage since marriage is definitely one of those issues that is a state, not federal concern and the feds can’t commandeer the states into redefining what marriage is. But the Supreme Court could make it unconstitutional to prevent married same sex couples from enjoying federal benefits that heterosexual couples enjoy. And so, it would be a way to come through the back door and say, you know what? We can’t tell you how to define marriage within your borders, but we can tell you that if you want these federal funds, benefits and privileges within your borders, you better see to it that the way DOMA defines marriage is revised to include all sorts of couples and constellations of marriages.
But what about polygamy? Why is it that only two people of opposite sex can legally marry? Why can’t, say, five consenting adults set up a marriage and call themselves spouses? What is the legitimate government interest, whether state or federal, that is furthered by this arbitrary and capricious rule?