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Truth Through Combat

The MA DOMA Ruling

The ruling by District Court Judge Joseph Tauro is here: http://www.scribd.com/doc/34072925/DOMA-decision-in-Mass-AG-case.

Judge Tauro argues that MA would be injured by the federal government if it did not receive funding for its veteran cemeteries. Judge Tauro is wrong on this specific point, however: MA would not be injured by refusing entry to gay spouses, and this is all that it is being asked to do. If the action that MA was being asked to take were to cause the state direct harm, the judge’s analysis would hold. There is no direct harm here, and there is also no indirect harm to the state. There is no harm to MA when it excludes gay spouses from such benefits.

The rest of the judge’s analysis might be correct, but in this case he is mistaken.

Here is the relevant quotation:

“DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples. By way of example, the Department of Veterans Affairs informed the Commonwealth in clear terms that the federal government is entitled to “recapture” millions in federal grants if and when the Commonwealth opts to bury the same-sex spouse of a veteran in one of the state veterans cemeteries, a threat which, in essence, would penalize the Commonwealth for affording same-sex married couples the same benefits as similarly-situated heterosexual couples that meet the criteria for burial in Agawam or Winchendon. Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.” – p. 27.

But where is the inducement if there is no damage by complying? There can be no inducement in such a case, and therefore the court’s conclusion that DOMA would penalize MA is incorrect.

The remainder of Judge Tauro’s analysis relies on his reading of the Tenth Amendment. It would be interesting to see DOMA struck down on such grounds, particularly since such a case could be a precursor to a like challenge against the individual mandate in the health care reform legislation.

On p. 35 the ruling argues that a similar penalty is relevant to the Medicare and Medicaid Services provision, and that MA has been forced to pay an additional sum of $640,661 and has lost $2,224,018 in federal funds. However, the reason for these costs is not the federal government action, but the state action (i.e., its decision to grant homosexuals the right to marry). As such, it cannot be said that federal action is causing MA money.

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