Bench Memos

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The Massachusetts DOMA Rulings—Some Commentary on Massachusetts v. HHS


Some quick observations on Judge Tauro’s second ruling yesterday, in Massachusetts v. U.S. Department of Health and Human Services, in which he ruled that section 3 of the Defense of Marriage Act somehow exceeds the scope of federal power:

This ruling strikes me as just plain nuts.  Section 3 of DOMA merely defines what the words “marriage” and “spouse” mean in federal law.  If Congress had the authority to enact the federal statutory provisions that contain the words “marriage” and “spouse”—and Touro never suggests otherwise—then surely it had the authority to define what those words mean in those federal statutory provisions.  The fact that it chose to do so in a single law rather than through separate definitional sections accompanying the more than one thousand provisions of federal statutes that use those words can’t have any bearing on the question of federal power.

DOMA doesn’t “induce[] Massachusetts to violate the equal protection rights of its citizens,” as Tauro ludicrously asserts.  (Slip op. at 27.)  All that DOMA means is that if Massachusetts wants to take part in federal funding programs that condition benefits on marriage as federally defined, it must, for purposes of those programs, comply with that condition.  What Massachusetts is really seeking, and what Tauro is commanding, is that federal taxpayers subsidize same-sex marriage in Massachusetts.


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