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DOMA -- Request for Summary Judgment

DOMA -- Request for Summary Judgment

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Published by Trueace
Martha Coakley, Attorney General of Massachusetts, filed a motion for Summary Judgment to bypass any hearing in her effort to demonstrate the unconstitutionality of the Federal Government setting social policy that the U.S. Constitution leaves to the States.
Martha Coakley, Attorney General of Massachusetts, filed a motion for Summary Judgment to bypass any hearing in her effort to demonstrate the unconstitutionality of the Federal Government setting social policy that the U.S. Constitution leaves to the States.

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Published by: Trueace on Feb 20, 2010
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01/18/2013

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In 2003, the Supreme Judicial Court of Massachusetts recognized that marriage is among

the most basic liberty interests and due process rights and that denying same-sex couples access

to marriage violated the equality and liberty provisions of the Massachusetts Constitution.

Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 957, 959-61, 968 (Mass. 2003). Since then,

the Commonwealth has recognized “a single marital status that is open and available to every

qualifying couple, whether same-sex or different-sex.” Compl. ¶ 17. The Massachusetts

legislature rejected both citizen-initiated and legislatively-proposed constitutional amendments to

overturn Goodridge. Compl. ¶¶ 18-19. Since May 17, 2004, the Commonwealth has issued

approximately 15,214 marriage licenses to same-sex couples. Rule 56.1 Stmt. ¶ 9.

C.

The Federal Defense of Marriage Act

Section 3 of DOMA defines “marriage” and “spouse,” across all federal law, to exclude

same-sex couples lawfully married under State law. It provides that:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United States, the
word “marriage” means only a legal union between one man and one woman as husband
and wife, and the word “spouse” refers only to a person of the opposite sex who is a
husband or wife.

Case 1:09-cv-11156-JLT Document 28 Filed 02/18/2010 Page 18 of 57

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1 U.S.C. § 7.

DOMA was a reaction to Congressional fears that Hawaii would begin to recognize

marriages between same-sex couples following Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). See

H.R. Rep. No. 104-664, at 2, 4-6 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906; Compl. ¶

22. The House Judiciary Committee viewed Baehr as part of a “legal assault against traditional

heterosexual marriage laws.” H.R. Rep. No. 104-664, at 4, reprinted in 1996 U.S.C.C.A.N. at

2908. The Committee explicitly stated that Congress was not “supportive of (or even indifferent

to) the notion of same-sex ‘marriage,’” and that DOMA would further Congress’s interests in,

inter alia, “defend[ing] the institution of traditional heterosexual marriage,” “encouraging

responsible procreation and child-rearing,” and “preserving scarce government resources,” all

while reflecting “moral disapproval of homosexuality, and a moral conviction that

heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id. at 12-

18, reprinted in 1996 U.S.C.C.A.N. at 2916-22. Members of Congress repeatedly condemned

homosexuality in the floor debates surrounding DOMA’s passage, calling it “immoral,” “based

on perversion,” 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn),

“unnatural,” id. at H7494 (daily ed. July 12, 1996) (statement of Rep. Smith), “depraved,” and

“an attack upon God’s principles,” id. at H7486 (daily ed. July 12, 1996) (statement of Rep.

Buyer).

Notably absent from the legislative record is any concern about DOMA’s sweeping

effect. The terms “marriage” and “spouse” appear over 1,100 times in the United States Code.

See generally Compl. ¶ 34, Addendum of Fed. Law Regulating Marriage; Rule 56.1 Stmt. ¶ 4

(citing U.S. Gen. Accounting Office, GAO-04-353R, Defense of Marriage Act: Update to Prior

Case 1:09-cv-11156-JLT Document 28 Filed 02/18/2010 Page 19 of 57

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Report (2004)). Those provisions create “rights, obligations, and protections pertaining to a wide

range of areas, including the workplace, healthcare, taxes, Social Security, retirement,

intellectual property, and court proceedings.” Compl. ¶ 35; see also Rule 56.1 Stmt. ¶ 5.

Congress did not investigate, let alone hear testimony from experts or analysts about, DOMA’s

likely effect on the myriad federal programs at issue. In fact, the House rejected a proposed

amendment that would have required budgetary analysis by the General Accounting Office. See

142 Cong. Rec. H7503-05 (daily ed. July 12, 1996).

D.

Veterans’ Cemeteries

Massachusetts has received federal funding through the federal government’s State

Cemetery Grants Program for Commonwealth-operated veterans’ cemeteries in Agawam and

Winchendon, Massachusetts. Rule 56.1 Stmt. ¶¶ 20-23; Compl. ¶¶ 63-64. Under that program,

Defendant United States Department of Veterans Affairs (“VA”) provides federal funding for the

establishment, expansion, and improvement of veterans’ cemeteries owned and operated by a

state. 38 U.S.C. § 2408; 38 C.F.R. § 39. The Commonwealth received three grants totaling over

$19 million for its two cemeteries and is also reimbursed by the federal government for the costs

associated with burying veterans in those cemeteries. Rule 56.1 Stmt. ¶¶ 22-23; Compl. ¶ 71.

Federal funding for veterans’ cemeteries in the State Cemetery Grants Program is

conditioned on compliance with regulations promulgated by Defendant Secretary of the VA.

Rule 56.1 Stmt. ¶ 24; Compl. ¶ 68. One such condition is that the cemeteries “must be operated

solely for the interment of veterans, their spouses, [and] surviving spouses[.]” Rule 56.1 Stmt. ¶

25; Compl. ¶ 69. The VA may recapture funds provided for a cemetery if it is no longer

Case 1:09-cv-11156-JLT Document 28 Filed 02/18/2010 Page 20 of 57

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operated as a veterans’ cemetery, Rule 56.1 Stmt. ¶ 26; Compl. ¶ 70; also, under such

circumstances, the VA can no longer reimburse the cost of burying veterans. 38 U.S.C. § 2303.

In 2004, in response to an inquiry from the General Counsel of the Massachusetts

Department of Veterans’ Services (“DVS”), the VA informed the Commonwealth that “a state

cemetery would not be operated solely for the interment of veterans and their spouses and

children if [Massachusetts] allowed the interment of a person solely on the basis that the person

is recognized under state law as being the same-sex spouse of a veteran.” Rule 56.1 Stmt. ¶ 27;

Compl. ¶ 73 & Ex. 3 at 2. The VA emphasized that “[t]he United States Government would

have discretion to invoke the recapture provisions of 38 U.S.C. 2408(b)(3) should DVS decide to

authorize the interment of same-sex spouses at the Agawam or Winchendon cemetery.” Rule

56.1 Stmt. ¶ 28; Compl. ¶ 72 & Ex. 3 at 2. The VA has reiterated this position in a published

directive and public statements. Rule 56.1 Stmt. ¶ 29; Compl. ¶ 74 & Ex. 4.

On August 22, 2007, the Commonwealth authorized the burial of the same-sex spouse of

a veteran. Rule 56.1 Stmt. ¶ 30; Compl. ¶ 77. The veteran is a 65-year-old decorated U.S. Army

service member who retired after over twenty years of service. Rule 56.1 Stmt. ¶ 31. His spouse

is 58 years old and not otherwise eligible for burial in a veterans’ cemetery. Rule 56.1 Stmt. ¶

32. The men are lawfully married under Massachusetts law, Rule 56.1 Stmt. ¶ 30, and the

Commonwealth intends to honor their wish to be buried together in a veterans’ cemetery, Rule

56.1 Stmt. ¶ 33. According to the VA, because the Commonwealth has “decide[d] to authorize”

their burial, the VA has “discretion to invoke the recapture provisions of 38 U.S.C. 2408(b)(3).”

Rule 56.1 Stmt. ¶¶ 28, 34; Compl. ¶ 78 & Ex. 3 at 2.

Case 1:09-cv-11156-JLT Document 28 Filed 02/18/2010 Page 21 of 57

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