Massachusetts sues feds over DOMA – OK not great

YES! Much better than the California lesbian couple who didn’t get married before Proposition 8 was upheld by the California Supreme Court, a Commonwealth of Massachusetts suit against the Defense of Marriage Act is likely to get legal standing.

The lawsuit argues that the DOMA, which was enacted in 1996, precludes same-sex spouses in Massachusetts from a wide range of protections, including federal income tax credits, employment and retirement benefits, health insurance coverage, and Social Security payments.

Federal courts who are not too reticent about refusing to give individual civil plaintiffs standing aren’t likely to bump a state on a constitutional issue.

BUT… but… but…

There’s a downside. Massachusetts is deliberately avoiding raising the “full faith and credit clause” of the U.S. Constitution in challenging DOMA:

The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" for the purpose of federal law as "a legal union between one man and one woman as husband and wife." It does not challenge the constitutionality of Section 2, which provides that states are not required to recognize same-sex marriages performed in other states.

Instead, the challenge is only to the conservative-beloved 10th Amendment.

Read, definitely read, the whole thing. See if you think it’s the right, narrowly-phrased, legal strategy and whether it stands a chance at the Supreme Court.

My angle is that if SCOTUS wants to slap down the state of Massachusetts on this issue, it will find a way to do so, no matter how narrowly tailored the suit is. And, the suit, if won, would theoretically apply only in Massachusetts, and not guarantee people married in Massachusetts would be considered married if they moved elsewhere.