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Mass. is 1st to fight US marriage law

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By Nandini Jayakrishna and Jonathan Saltzman
Globe Correspondent | Globe Staff / July 9, 2009
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Massachusetts, the first state to legalize gay marriage, yesterday became the first to challenge the constitutionality of a federal law that defines marriage as the union of a man and a woman, contending that Congress intruded into a matter that should be left to states.

The suit filed by state Attorney General Martha Coakley says the Defense of Marriage Act of 1996 violates the US Constitution by interfering with the state’s right to define the marital status of residents. The suit also says the law forces the state to discriminate against same-sex married couples - on certain health benefits and burial rights - or risk losing federal funding.

“Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people,’’ said the complaint filed in US District Court in Boston.

More than 16,000 same-sex couples have wed in Massachusetts since gay marriage became legal in the state in 2004, the suit said, “and the security and stability of families has been strengthened in important ways throughout the state.’’

Charles Miller, a spokesman for the Justice Department, which defends the government in litigation, issued a two-sentence statement yesterday saying President Obama “supports legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. We will review this case.’’

Massachusetts risks losing millions in dollars for MassHealth, the state’s Medicaid program for the poor, and for veterans’ cemeteries overseen by the state Department of Veterans Services, unless it obeys the Defense of Marriage Act. The federal government has told the state that it cannot provide federal funding for MassHealth benefits given to same-sex spouses. It also informed the state it will lose Veterans Affairs funding if it buries the same-sex spouse of a veteran in a cemetery, as the state does for heterosexual spouses of veterans.

Yesterday’s lawsuit fueled speculation that Coakley is courting liberal Democrats in preparation for a bid for a more prominent office. Coakley has been mentioned as a possible successor to Senator Edward M. Kennedy if he is unable to finish his term because of brain cancer, and to Governor Deval Patrick if he changes his mind and decides not to seek reelection.

Coakley’s stand “appeals to liberals generally, and it appeals to the gay community specifically,’’ said Dennis Hale, a political science professor at Boston College.

But Coakley brushed aside a question about her political future at a news conference.

“As of today, unlike many of my colleagues, I’m still running for reelection for attorney general,’’ she said. Her term expires January 2011. The suit is the second in four months challenging the Defense of Marriage Act in federal court in Boston.

On March 3, six same-sex couples and three men whose husbands died brought a claim that said the federal law barred them from getting more than 1,000 marriage-related benefits that heterosexual couples enjoy. The benefits include health insurance for spouses of federal employees and tax deductions for couples who jointly file federal income tax returns.

Legal specialists described that complaint, which was filed by Gay & Lesbian Advocates and Defenders, as one of the first serious challenges to the law. Like the earlier suit, Coakley’s complaint quickly drew fire from opponents of same-sex marriage.

Tony Perkins, president of the Washington-based Family Research Council, called on the Justice Department “to fulfill its constitutional duties and continue its defense of DOMA against such frivolous lawsuits.’’

Kris Mineau, president of the Massachusetts Family Institute, said the tide of public opinion was strongly in favor of the federal law and predicted Coakley’s suit will fail.

“We believe the suit will have no credibility in the federal courts,’’ he said. “The federal courts have already ruled that the DOMA is constitutional.’’

But Andrew Koppelman, a Northwestern University law professor and authority on same-sex marriage laws, disagreed with Mineau’s assessment, saying that the federal judiciary has yet to deal squarely with the constitutionality of the law.

The lawsuit filed in March might fare better than Coakley’s, he said, because it persuasively argued that the law is nothing but discriminatory - a “bare desire to harm a politically unpopular group.’’ He said the state’s claim, which relies more on a federalism argument, may be weaker because the government often attaches strings when funneling money to states.

Still, Coakley’s suit could help sway a court that might be inclined to strike down the law, he said, in that “the challenge comes not just from gay rights advocates, but also from a state.’’

Connecticut, Iowa, Vermont, and New Hampshire allow or will soon permit same-sex marriages. The unions are scheduled to become legal in Maine, as well, in September, but that could be put on hold if opponents gather enough signatures to force a statewide vote.

Congress passed the Defense of Marriage Act, and President Clinton signed it, when it appeared increasingly likely that a state would soon legalize same-sex marriage, either by legislation or a court interpretation of state or federal law.

Proponents of the statute feared that if one state legalized gay marriage, other states would be required to do so under the full faith and credit clause of the Constitution. Seven years later, in November 2003, Massachusetts’ high court issued its landmark ruling, making the state the first in the country to recognize same-sex marriages, in May 2004.

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, said Coakley had shrewdly used a traditionally conservative argument - states’ rights - to challenge the federal law.

But C.J. Doyle, executive director of the Catholic Action League, said the suit reflected the “rather callous hypocrisy of a state government which refused to allow the people of Massachusetts to vote on the definition of marriage now complaining that the federal government is intruding upon its rights of self-government.’’

Material from the Associated Press was used in this report. Martin Finucane of the Globe staff contributed to this report.

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