Same-Sex Marriage

We continue this month with our discussion of some of the recent developments in the interaction between state and federal laws relating to same-sex marriage.

Last month, we began looking at the case of Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, 698 F.Supp.2d 234 (D.Mass. 7/8/10), in which Massachusetts, represented by Attorney General Martha Coakley, claimed that Section 3 of the federal Defense of Marriage Act (DOMA) violates the Tenth Amendment of the Constitution by intruding on a traditional area of exclusive state authority: the right to define and regulate family matters, including marriage. It also claimed that DOMA violates the Spending Clause by conditioning the receipt of federal funds on the Commonwealth's willingness to unconstitutionally discriminate against some of its citizens. The case involved two federal/state government programs: one that provides burial plots to veterans, and one that provides medical services to certain Massachusetts citizens. The Commonwealth of Massachusetts sued to defend its right as a state to provide these services to all of its eligible citizens, as defined by its own law.

The Cemetery Controversy

The challenge to the burial program's rules was based on the case of a military veteran legally married to another man in accordance with Massachusetts law. In July 2007, he and his spouse submitted an application for burial in the Winchendon cemetery, a state-run but partially federally funded veterans' cemetery.

The Winchendon cemetery is one of two operated by the Massachusetts Department of Veterans' Services (DVS) that have received federal funding from the United States Department of Veterans Affairs (VA). It and the other Massachusetts veterans' cemetery at issue here, Agawam cemetery, were built pursuant to the State Cemetery Grants Program, a federal government program created in 1978 to expand upon the VA's network of national veterans' cemeteries. The program's purpose is to make veterans' cemeteries available within 75 miles of 90% of the veterans in the nation. Through the program, the Massachusetts DVS has received approximately $19 million from the VA for the construction and/or expansion of the two cemeteries. It also receives a reimbursement of $300 from the VA for each veteran buried at the facilities. (As of the time of this appeal, the VA had provided close to $1.5 million to DVS for such “plot allowances.”)

Federal law holds that VA funding for state veterans' cemeteries, such as those in Agawam and Winchendon, is conditioned on a state's compliance with regulations promulgated by the Secretary of the VA. Additionally, federal law says that if a state veterans' cemetery ceases to be operated as such, the VA is entitled to recapture any funds provided for the construction, expansion, or improvement of the cemeteries.

The VA regulations require that veterans' cemeteries “be operated solely for the interment of veterans, their spouses, surviving spouses, [and certain of their] children ' .” 38 C.F.R. ' 39.5(a). After Massachusetts began permitting same-sex marriages, the question arose: Is the same-sex spouse of a Massachusetts veteran a “spouse” for the purposes of eligibility for burial in the Agawam and Winchendon veterans' cemeteries? DVS asked the VA for clarification. In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.” Official statements from VA representatives in subsequent years have reiterated that department's stance against the burial of same-sex spouses in veterans' cemeteries.

Finding that the veteran and his spouse who applied for burial were eligible for this benefit under Massachusetts law, DVS approved the couple's application for burial in the Winchendon cemetery and intends to bury them both there.

The Medicare Issue

Massachusetts' Executive Office of Health and Human Services administers the Commonwealth's Medicaid program, known as MassHealth. The federal Department of Health and Human Services (HHS) reimburses MassHealth for approximately one-half of its costs, amounting to billions of dollars per year. Because the federal government does not permit MassHealth to recognize the marriages of same-sex married couples, the Commonwealth has found itself required to provide coverage under the program to some same-sex married people who, because their spouses earn a high income, would not be eligible if the marriage were recognized. For example, if one spouse makes $100,000 per year and the other earns just $8,000, the low-earning spouse is considered a person with low income who is eligible to seek care from MassHealth, which Massachusetts must pay for. Conversely, some who are eligible under Massachusetts law for MassHealth benefits are not eligible under federal law, so although the Commonwealth provides them care, it does not receive federal funds to help offset the costs. The Commonwealth estimates that the federal government's refusal to provide Medicaid coverage to married same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.

In addition to the direct Medicare costs DOMA imposes on Massachusetts, the Commonwealth is, by its own law, required to pay its employees' Medicare taxes, at a rate of 1.45% of their taxable income. Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to those spouses. As of December 2009, 398 Commonwealth employees were provided health benefits for their same-sex spouses, worth $400 to $1000 per month. Massachusetts therefore claimed in its suit that it had paid approximately $122,607 in additional Medicare tax to the federal government between 2004 (when same-sex marriages were first recognized), and December 2009 (when the lawsuit against HHS was filed).

The Spending Clause

The court noted that the U.S. Supreme Court has handled questions concerning the boundaries of state and federal powers in one of two ways: either by deciding if the Constitution has authorized Congress to act on the issue, or by inquiring whether an act of Congress invades an area of state sovereignty reserved to it by the Tenth Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Commonwealth, arguing that the two inquiries are mirror images of each other, claimed on appeal that Congress not only has no authority under Article I to promulgate a national definition of marriage, but also that, in doing so, it intruded on the exclusive province of the state to regulate marriage.

On the question of Congress' powers, the federal government asserted that the Spending Clause of the Constitution gave Congress authority to enact DOMA because Congress is entitled to determine how federal money should be spent, so that it can promote the “general welfare” of the public. The Spending Clause provides, in pertinent part: “The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The court agreed that Congress has broad power to determine how federal funds will be spent, but noted that this power is limited. The test to be applied when deciding if the federal government has exceeded its Spending Clause powers was enunciated by the Supreme Court in South Dakota v. Dole, 483 U.S. 203 (1987), which said: “Spending Clause legislation must satisfy five requirements: 1) it must be in pursuit of the 'general welfare,' 2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, 3) conditions must not be 'unrelated to the federal interest in particular national projects or programs' funded under the challenged legislation, 4) the legislation must not be barred by other constitutional provisions, and 5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.”

Looking at these factors, Judge Tauro decided the issue on the basis of the fourth ' that, to keep from running afoul of the Spending Clause, the legislation must not be barred by other constitutional provisions.

The Fourteenth Amendment to the Constitution requires that all persons subjected to legislation be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. If those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference in treatment. Judge Tauro agreed with the Commonwealth that DOMA conditions the receipt of federal funding on the state's violation of the Equal Protection Clause of the Fourteenth Amendment by requiring the state to deny certain marriage-based benefits to same-sex married couples. He could find no rational relationship between the disparate treatment of same- and opposite-sex spouses required by DOMA and any legitimate government interest. Judge Tauro's opinion thus concluded by stating: “And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress' spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.”

Third Factor Goes Unaddressed

Because the decision could be based solely on DOMA's requirement that Massachusetts violate its citizens' rights to equal protection in order to be in compliance with it, the court declined to discuss at length another obvious problem for DOMA under the South Dakota v. Dole Spending Clause test. That element is that the conditions placed on the states must not be unrelated to the federal interest in particular national projects or programs funded under the challenged legislation. But as Judge Tauro stated in an aside, “It is ' worth noting that DOMA's reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.”

The Tenth Amendment:
Defining and Regulating Marriage

Generally, a federal action violates the Tenth Amendment when it attempts to control an area of law reserved for the states. The U.S. Court of Appeals for the First Circuit has, against a Tenth Amendment challenge, upheld legislation that affects family law where it is firmly rooted in an enumerated Congressional power. United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1977) (The Child Support Recovery Act held a valid exercise of congressional authority pursuant to the Commerce Clause). Under the teachings of Bongiomo, a state presents a valid case for violation of its sovereignty rights if the federal statute at issue: 1) regulates the states as states; 2) concerns attributes of state sovereignty; and 3) is of such a nature that compliance with it would impair the state's ability to structure integral operations in areas of traditional governmental functions.

The Massachusetts District Court found that the Commonwealth proved the first element by showing that DOMA impacts the state's internal decisions (such as who may be buried in it cemeteries) and its fiscal health (through threats to withdraw money already allotted to the cemeteries and through Medicaid costs).

The second element could be proven, the court said, by looking at the history of marriage law in this country. The opinion noted that even before the United State was formed, colonial legislatures determined marriage laws, not Parliament. By the time independence from England was declared. each state's founding legislation included regulations concerning marriage. During the many years between the founding of the nation and today, noted the court, “[c]hanges in regulations regarding marriage ' responded to changes in political, economic, religious, and ethnic compositions in the states. Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations ' varied significantly from state to state throughout American history.” Differences among the states have included, among others, laws concerning the age at which marriage can occur, whether common-law marriage will be recognized and whether couples of different races may marry. The U.S. Constitution and early federal law made no attempts to control the institution of marriage, and later attempts to amend them to include marriage definitions failed, until the federal government outlawed states' prohibitions against interracial marriage in 1967.

The final element of the Bongiomo test required the court to determine whether compliance with DOMA would impair the Commonwealth's ability to structure integral operations in areas of traditional governmental functions. Quoting United Transp. Union v. Long Island R.R. Co., 455 U.S. 678 (1982), the court stated, “This third requirement, viewed as the 'key prong' of the Tenth Amendment analysis, addresses 'whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government's ability to fulfill its role in the Union and endanger its separate and independent existence.'” The court found that this “was not a close call.” In fact, said Judge Tauro, “DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations.” It could follow its own law and allow the veteran and his spouse the same privileges as other similarly-situated married couples while giving up millions in federal grants; or it could deny their request for burial privileges and retain the federal funds, but only by violating its own constitution.

As of this writing, no appeal has been filed in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services.

Conclusion

The cases discussed herein, along with recent federal and state bar association policy announcements concerning support for gay marriage rights, have continued to put pressure on supporters and opponents of change. One thing is clear: Nothing has been fully settled, and the debate will go on for years to come.

We continue this month with our discussion of some of the recent developments in the interaction between state and federal laws relating to same-sex marriage.

Last month, we began looking at the case of Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services , 698 F.Supp.2d 234 (D.Mass. 7/8/10), in which Massachusetts, represented by Attorney General Martha Coakley, claimed that Section 3 of the federal Defense of Marriage Act (DOMA) violates the Tenth Amendment of the Constitution by intruding on a traditional area of exclusive state authority: the right to define and regulate family matters, including marriage. It also claimed that DOMA violates the Spending Clause by conditioning the receipt of federal funds on the Commonwealth's willingness to unconstitutionally discriminate against some of its citizens. The case involved two federal/state government programs: one that provides burial plots to veterans, and one that provides medical services to certain Massachusetts citizens. The Commonwealth of Massachusetts sued to defend its right as a state to provide these services to all of its eligible citizens, as defined by its own law.

The Cemetery Controversy

The challenge to the burial program's rules was based on the case of a military veteran legally married to another man in accordance with Massachusetts law. In July 2007, he and his spouse submitted an application for burial in the Winchendon cemetery, a state-run but partially federally funded veterans' cemetery.

The Winchendon cemetery is one of two operated by the Massachusetts Department of Veterans' Services (DVS) that have received federal funding from the United States Department of Veterans Affairs (VA). It and the other Massachusetts veterans' cemetery at issue here, Agawam cemetery, were built pursuant to the State Cemetery Grants Program, a federal government program created in 1978 to expand upon the VA's network of national veterans' cemeteries. The program's purpose is to make veterans' cemeteries available within 75 miles of 90% of the veterans in the nation. Through the program, the Massachusetts DVS has received approximately $19 million from the VA for the construction and/or expansion of the two cemeteries. It also receives a reimbursement of $300 from the VA for each veteran buried at the facilities. (As of the time of this appeal, the VA had provided close to $1.5 million to DVS for such “plot allowances.”)

Federal law holds that VA funding for state veterans' cemeteries, such as those in Agawam and Winchendon, is conditioned on a state's compliance with regulations promulgated by the Secretary of the VA. Additionally, federal law says that if a state veterans' cemetery ceases to be operated as such, the VA is entitled to recapture any funds provided for the construction, expansion, or improvement of the cemeteries.

The VA regulations require that veterans' cemeteries “be operated solely for the interment of veterans, their spouses, surviving spouses, [and certain of their] children ' .” 38 C.F.R. ' 39.5(a). After Massachusetts began permitting same-sex marriages, the question arose: Is the same-sex spouse of a Massachusetts veteran a “spouse” for the purposes of eligibility for burial in the Agawam and Winchendon veterans' cemeteries? DVS asked the VA for clarification. In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.” Official statements from VA representatives in subsequent years have reiterated that department's stance against the burial of same-sex spouses in veterans' cemeteries.

Finding that the veteran and his spouse who applied for burial were eligible for this benefit under Massachusetts law, DVS approved the couple's application for burial in the Winchendon cemetery and intends to bury them both there.

The Medicare Issue

Massachusetts' Executive Office of Health and Human Services administers the Commonwealth's Medicaid program, known as MassHealth. The federal Department of Health and Human Services (HHS) reimburses MassHealth for approximately one-half of its costs, amounting to billions of dollars per year. Because the federal government does not permit MassHealth to recognize the marriages of same-sex married couples, the Commonwealth has found itself required to provide coverage under the program to some same-sex married people who, because their spouses earn a high income, would not be eligible if the marriage were recognized. For example, if one spouse makes $100,000 per year and the other earns just $8,000, the low-earning spouse is considered a person with low income who is eligible to seek care from MassHealth, which Massachusetts must pay for. Conversely, some who are eligible under Massachusetts law for MassHealth benefits are not eligible under federal law, so although the Commonwealth provides them care, it does not receive federal funds to help offset the costs. The Commonwealth estimates that the federal government's refusal to provide Medicaid coverage to married same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.

In addition to the direct Medicare costs DOMA imposes on Massachusetts, the Commonwealth is, by its own law, required to pay its employees' Medicare taxes, at a rate of 1.45% of their taxable income. Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to those spouses. As of December 2009, 398 Commonwealth employees were provided health benefits for their same-sex spouses, worth $400 to $1000 per month. Massachusetts therefore claimed in its suit that it had paid approximately $122,607 in additional Medicare tax to the federal government between 2004 (when same-sex marriages were first recognized), and December 2009 (when the lawsuit against HHS was filed).

The Spending Clause

The court noted that the U.S. Supreme Court has handled questions concerning the boundaries of state and federal powers in one of two ways: either by deciding if the Constitution has authorized Congress to act on the issue, or by inquiring whether an act of Congress invades an area of state sovereignty reserved to it by the Tenth Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Commonwealth, arguing that the two inquiries are mirror images of each other, claimed on appeal that Congress not only has no authority under Article I to promulgate a national definition of marriage, but also that, in doing so, it intruded on the exclusive province of the state to regulate marriage.

On the question of Congress' powers, the federal government asserted that the Spending Clause of the Constitution gave Congress authority to enact DOMA because Congress is entitled to determine how federal money should be spent, so that it can promote the “general welfare” of the public. The Spending Clause provides, in pertinent part: “The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The court agreed that Congress has broad power to determine how federal funds will be spent, but noted that this power is limited. The test to be applied when deciding if the federal government has exceeded its Spending Clause powers was enunciated by the Supreme Court in South Dakota v. Dole , 483 U.S. 203 (1987), which said: “Spending Clause legislation must satisfy five requirements: 1) it must be in pursuit of the 'general welfare,' 2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, 3) conditions must not be 'unrelated to the federal interest in particular national projects or programs' funded under the challenged legislation, 4) the legislation must not be barred by other constitutional provisions, and 5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.”

Looking at these factors, Judge Tauro decided the issue on the basis of the fourth ' that, to keep from running afoul of the Spending Clause, the legislation must not be barred by other constitutional provisions.

The Fourteenth Amendment to the Constitution requires that all persons subjected to legislation be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. If those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference in treatment. Judge Tauro agreed with the Commonwealth that DOMA conditions the receipt of federal funding on the state's violation of the Equal Protection Clause of the Fourteenth Amendment by requiring the state to deny certain marriage-based benefits to same-sex married couples. He could find no rational relationship between the disparate treatment of same- and opposite-sex spouses required by DOMA and any legitimate government interest. Judge Tauro's opinion thus concluded by stating: “And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress' spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.”

Third Factor Goes Unaddressed

Because the decision could be based solely on DOMA's requirement that Massachusetts violate its citizens' rights to equal protection in order to be in compliance with it, the court declined to discuss at length another obvious problem for DOMA under the South Dakota v. Dole Spending Clause test. That element is that the conditions placed on the states must not be unrelated to the federal interest in particular national projects or programs funded under the challenged legislation. But as Judge Tauro stated in an aside, “It is ' worth noting that DOMA's reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.”

The Tenth Amendment:
Defining and Regulating Marriage

Generally, a federal action violates the Tenth Amendment when it attempts to control an area of law reserved for the states. The U.S. Court of Appeals for the First Circuit has, against a Tenth Amendment challenge, upheld legislation that affects family law where it is firmly rooted in an enumerated Congressional power. United States v. Bongiorno , 106 F.3d 1027 (1st Cir. 1977) (The Child Support Recovery Act held a valid exercise of congressional authority pursuant to the Commerce Clause). Under the teachings of Bongiomo, a state presents a valid case for violation of its sovereignty rights if the federal statute at issue: 1) regulates the states as states; 2) concerns attributes of state sovereignty; and 3) is of such a nature that compliance with it would impair the state's ability to structure integral operations in areas of traditional governmental functions.

The Massachusetts District Court found that the Commonwealth proved the first element by showing that DOMA impacts the state's internal decisions (such as who may be buried in it cemeteries) and its fiscal health (through threats to withdraw money already allotted to the cemeteries and through Medicaid costs).

The second element could be proven, the court said, by looking at the history of marriage law in this country. The opinion noted that even before the United State was formed, colonial legislatures determined marriage laws, not Parliament. By the time independence from England was declared. each state's founding legislation included regulations concerning marriage. During the many years between the founding of the nation and today, noted the court, “[c]hanges in regulations regarding marriage ' responded to changes in political, economic, religious, and ethnic compositions in the states. Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations ' varied significantly from state to state throughout American history.” Differences among the states have included, among others, laws concerning the age at which marriage can occur, whether common-law marriage will be recognized and whether couples of different races may marry. The U.S. Constitution and early federal law made no attempts to control the institution of marriage, and later attempts to amend them to include marriage definitions failed, until the federal government outlawed states' prohibitions against interracial marriage in 1967.

The final element of the Bongiomo test required the court to determine whether compliance with DOMA would impair the Commonwealth's ability to structure integral operations in areas of traditional governmental functions. Quoting United Transp. Union v. Long Island R.R. Co. , 455 U.S. 678 (1982), the court stated, “This third requirement, viewed as the 'key prong' of the Tenth Amendment analysis, addresses 'whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government's ability to fulfill its role in the Union and endanger its separate and independent existence.'” The court found that this “was not a close call.” In fact, said Judge Tauro, “DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations.” It could follow its own law and allow the veteran and his spouse the same privileges as other similarly-situated married couples while giving up millions in federal grants; or it could deny their request for burial privileges and retain the federal funds, but only by violating its own constitution.

As of this writing, no appeal has been filed in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services.

Conclusion

The cases discussed herein, along with recent federal and state bar association policy announcements concerning support for gay marriage rights, have continued to put pressure on supporters and opponents of change. One thing is clear: Nothing has been fully settled, and the debate will go on for years to come.