Tuesday, September 29, 2009

When a protected transaction meets a repugnant one: The MA suit over the Defense of Marriage Act

Same sex marriage raises issues involving both repugnant transactions and protected transactions. On the one hand, marriage is one of our most protected transactions: we reserve many rights for married couples, and a good deal of law and political rhetoric concerns marriage. But many people find marriage between anyone other than one man and one woman repugnant.

Nowhere is this clearer than in the lawsuits being pressed by the Commonwealth of Massachusetts (which was the first U.S. state to recognize same sex marriage) and other parties against the United States, in an attempt to roll back the federal Defense of Marriage Act.

At issue are the rights of married couples. Specifically (because marriage is a protected transaction), spouses are entitled to tax and other benefits. But (because some people find same sex marriage repugnant) the federal law denies same sex spouses married in Massachusetts federal benefits for married couples.

"Because of the law, the plaintiffs said, they were excluded from using federal benefits that opposite-sex couples can obtain, including health insurance programs for federal employees, retirement and survivor benefits under the Social Security Act, and the ability to file joint federal income tax returns."

That quote is from a story ( US lawyers defend letter of gay marriage ban) that emphasizes how this suit puts lawyers in the Obama administration Justice Department in the unusual position of defending the legality of a law that the administration would in fact like to see repealed.
"Government attorneys said in a brief filed yesterday in US District Court that the administration believes the federal Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, is discriminatory and wants it repealed.
“Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the department disagrees with a particular statute as a policy matter, as it does here,’’ the attorneys said."

(The MA suit is formally called Commonwealth of Massachusetts v. United States Department of Health and Human Services et al, and an associated suit is Gill et al. v. Office of Personnel Management, and here is the formal complaint, brought by GLAD, the Gay & Lesbian Advocates & Defenders.)

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