Law school symposium examines law and politics of Defense of Marriage Act
Challenging the Defense of Marriage Act was simply a matter of standing up for long-established principles of federalism, Maura Healey told an Indiana University audience last week.
Healey, chief of the Civil Rights Division of the Massachusetts Attorney General's Office, said the federal government, for 200 years, had left it to the states to decide who could get married. That changed when Congress passed DOMA in 1996, defining marriage as between a man and a woman.
Photo by Zach Hetrick
Maura Healey speaks at an IU Maurer School of Law symposium.
So after Massachusetts began to recognize same-sex marriages, the state went to court to challenge a federal statute that sought to prohibit them.
"For us, this was really a case about federalism and Congress overstepping its bounds," Healey told a standing-room-only crowd in the Moot Court Room of the IU Maurer School of Law. "All we were arguing was that the federal government should return to what it has always done."
Healey was the featured speaker for a Maurer School symposium titled "Same-Sex Marriage and the Future of DOMA: Law, Politics, Federalism, and Families." It also included a panel discussion with law professors Dawn Johnsen and Deborah Widiss, sociology professor Brian Powell and Indiana Solicitor General Thomas Fisher. Attorney Steve Sanders, a former IU administrator, moderated.
Healey said Massachusetts adjusted quite happily to same-sex marriage after a state court ruling in 2004 gave gay and lesbian couples the right to marry. Heterosexual marriage is still thriving, the state's divorce rate remains the lowest in the nation, and studies have found that same-sex couples and their children are better off than before.
"The people of Massachusetts came to see that gay and lesbian couples are just like everyone else," Healey said, adding that more than 16,000 same-sex couples have married in the state.
Photo by Zach Hetrick
Panelists (from left) Maura Healey, Dawn Johnsen, Thomas Fisher, Deborah Widiss and Brian Powell discuss legal responses to the Defense of Marriage Act.
But DOMA substantially interferes with their ability to enjoy the benefits of marriage, she said. It puts limits on health care, employee benefits, workplace protections, school tuition waivers and even the right to be buried with one's spouse in a military cemetery.
"Collectively, DOMA touches every aspect of a person's life from the day they're born until the day they died, and even beyond the grave," she said.
In addition to arguing that DOMA violates the 10th Amendment's delegation of rights to the states, Massachusetts argues that the law is contrary to the Spending Clause of the Constitution because it requires discriminatory spending for same-sex couples without a valid reason.
U.S. District Judge Joseph L. Tauro ruled in favor of the state last summer, but the decision has been appealed and is making its way through federal courts, along with several other DOMA cases.
Meanwhile, the Obama Administration announced it would not defend the law against two other challenges because it had concluded DOMA is unconstitutional. The House of Representatives plans to defend the law against those lawsuits.
Johnsen, who was an assistant attorney general in the Clinton Administration, compared Obama's stance to a decision by President Clinton not to defend a 1990s law that would have required the discharge of military personnel who were HIV-positive.
"The decision by President Obama is well within his authority and well within past practice," she said. "And I think it was the right thing to do."
Powell, the Rudy Professor of Sociology in the IU College of Arts and Sciences and the author of the recent book Counted Out: Same-sex Relations and Americans' Definitions of Family, said public opinion surveys show Americans increasingly accept same-sex marriage and nontraditional families.
But the shift is generational, he said, with people under 50 more likely to accept same-sex marriage and people over 65 much more likely to reject it. And laws against same-sex marriage may not change anytime soon, he said -- because old people vote, and young people don't.
"'We the people' is not the same thing as 'We the voters,'" he said.
