Go Get 'em Martha

Massachusetts AG Martha Coakley is challenging the constitutionality of the Defense of Marriage Act (DOMA) on behalf of Massachusetts. Its about time this happened. I've believed for a while DOMA was unconstitutional and I'm glad we are finally going to find out. The basic idea is this, DOMA says for federal government purposes gay marriages aren't marriages. Massachusetts says, hey there, hold on a moment, its a state's right to determine what is and isn't a marriage and you have no authority to limit the scope of that power. Massachusetts has a pretty strong point there, things like marriage typically cannot be regulated by the federal government. The counterargument of course is DOMA only says the federal government doesn't have to send its funds to these couples. The federal government can usually place such restrictions on things, like say education, which are usually the province of the state but for which they provide funds.

I think the stickiness the federal government got into here is that they are actually redefining marriage in this limitation. Marriage's sole legal function is within the benefits (and restrictions) the married people receive (be they monetary or otherwise) so its hard to see how the federal government hasn't overstepped its bounds here by saying that some people cannot receive those benefits. The key difference between education and marriage is that educational funds go to the state and the state then administers its education system. Marriage benefits go DIRECTLY to the couples. This is not an incentive to the state to change its policies for the betterment of all, it is the undercutting of the state's decision with regards to who can be married and who can't. Regulating marriage is a unique power for the states in that they can decide the rules upon which one is and isn't married or divorced, but from there any relation to the federal government is based solely upon that marriage status. There is no more state involvement and therefore to allow the federal government to overturn the state's decision is to allow it to usurp the grant of constitutional authority to the state.

To say the states still have the authority to regulate marriage but unless certain conditions are met the states' decisions will not be recognized at the federal level is to say that the states, in effect, do not have the authority to regulate marriage. For DOMA to be constitutional the courts would have to rule that the only rights states have with regards to marriage is the ability to hand out their own benefits. This would be contrary to the well established principle that regulation of marriage is firmly within the realm of the states' rights. Obviously states are free to spend their own money however they would like without the federal government being able to regulate that expenditure (I'm sure we could all come up with bizarre extremes but this is certainly outside of, for instance, a state deciding to fund terrorism). What constitutional authority with regards to the regulation of marriage would still be vested in the states if the federal government could override their decisions for all purposes other than the state's administration of its own benefits?

Side note, I find it ironic that MA brought this challenge since they still have that stupid law on the books (or last I heard did) that says you cannot get married in MA unless you could get married in another state. Seems somewhat hypocritical to say hey don't butt in here as MA allows every other state in the Union to butt in lol.

Madison