On July 8, 2009, the Commonwealth of Massachusetts filed a lawsuit in the U.S. District Court for the District of Massachusetts under the Declaratory Judgment Act, 28 U.S.C. § 2201, against the federal government. The plaintiff asked the court for declaratory and injunctive relief, alleging an overreaching of federal authority into an exclusive sphere of the states. Specifically, the plaintiff claimed that the federal Defense of Marriage Act, 1 U.S.C. § 7, violates the Tenth Amendment, exceeds Congress’s Article I powers, and runs afoul of the Constitution’s principles of federalism by creating an extensive federal regulatory scheme that interferes with and undermines the Commonwealth’s sovereign authority to define marriage and to regulate the marital status of its citizens.

On July 8, 2010, the Court (Judge Joseph L. Tauro), substantially agreeing with the Commonwealth’s characterization of DOMA, granted the plaintiff’s motion for summary judgment and enjoined the federal government from enforcing DOMA against Massachusetts or its agencies. Massachusetts v. U.S. Dep't of Health & Human Services, 698 F.Supp.2d 234 (D. Mass. 2010). (The decision was issued the same day as Judge Tauro's decision striking down DOMA on equal protection grounds, in Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010), PB-MA-0006, and the two cases were consolidated on appeal.) The defendants appealed and moved for a stay of the injunction pending their appeal, and the Court (Judge Tauro) granted their motion.

On February 24, 2011, the Department of Justice indicated to the Court of Appeals that it had come to the conclusion that DOMA is unconstitutional and would cease defending it. (It would later file a brief in support of the plaintiffs' case on September 22.) In response, the Bipartisan Legal Advisory Group of the House of Representatives intervened to defend the act.

On August 23, 2011, the plaintiff moved for an initial en banc hearing to expedite the case, but despite a supporting brief from the Department of Justice, the Court of Appeals (Chief Judge Sandra L. Lynch) denied the motion.

After hearing arguments on April 4, 2012, on May 31 a three-judge panel of the First Circuit (Chief Judge Lynch, Judge Michael Boudin, and Judge Juan R. Torruella) unanimously affirmed the District Court's judgment in an opinion by Judge Boudin. Massachusetts v. U.S. Dep't of Health & Human Services, No. 10-2204, 2012 WL 1948017 (1st Cir. May 31, 2012). While the Court of Appeals refrained from applying heightened scrutiny, it also declined to employ hyper-deferential rational basis review; instead, the Court held that Supreme Court precedent in cases implicating the interests of historically disadvantaged minority groups (e.g. United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), Romer v. Evans, 517 U.S. 620 (1996)) and cases considering federal action in areas of traditional state concern (e.g. United States v. Morrison, 529 U.S. 598 (2000), United States v. Lopez, 514 U.S. 549 (1995)) suggested a more searching form of rational basis inquiry (so-called 'rational basis with bite'), and that the rationales given for DOMA did not hold up under this closer scrutiny. Injunctive relief has been stayed pending the possibility of review by the Supreme Court; the Department of Justice sought review on July 3, 2012. The petition was set for consideration by the Court on November 30, 2012. Presumably it will be held without decision while the Court considers the California Prop. 8 case (PB-CA-0029 in this Clearinghouse) and Windsor, the DOMA case from the Second Circuit (PB-NY-0017 in this Clearinghouse), in which the Court granted review on December 7. (Argument on those cases is expected to occur in March 2013.)

Christopher Schad - 12/07/2012


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