Bench Memos

No Leg to Stand On

As the NRO web briefing notes, the state of Massachusetts, represented by its attorney general Martha Coakley, sued the federal government today in U.S. District Court, complaining that certain provisions of the federal Defense of Marriage Act are unconstitutional invasions of the rights of Massachusetts residents, and that DOMA “interferes with the Commonwealth’s sovereign authority to define and regulate marriage.”  (The Massachusetts AG’s press release can be found here, with links to the complaint and other materials.)

The AG’s complaint never references the one Supreme Court decision that stands squarely in her path–a ruling that ought to be remembered in her office: Massachusetts v. Mellon (1923), which rightly denied that a state had standing to sue the federal government on behalf of the alleged right of its citizens not to be governed in a fashion of which the state disapproved.  Not mentioning Mellon is an astounding omission, and a telling one.  This frivolous bit of grandstanding ought to be tossed out of court in short order.  But mindful of the inclinations of modern judges, I will not venture to say confidently that “ought to be” will translate into “will be.”