July 24, 2012 | by Chris Johnson
Coakley joins calls for Supreme Court to review DOMA

Massachusetts Attorney General Martha Coakley is asking the Supreme Court to review DOMA (File photo by Fogster via Wikimedia)

Massachusetts Attorney General Martha Coakley joined on Tuesday the chorus of individuals calling on the Supreme Court to review the Defense of Marriage Act by filing a legal brief asking justices to take up the lawsuit that she filed against the anti-gay law.

The 27-page brief, filed in the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services, comes on the heels of a decision from the U.S. First Circuit Court of Appeals overturning Section of 3 DOMA in response to the litigation.

The brief states Massachusetts agrees with the appellate ruling and “normally would oppose further review in order to ensure that judgment takes effect as soon as possible,” but notes DOMA, which prohibit federal recognition of same-sex marriage, is of national importance and  the high court in any event is likely to take up its review.

“On that assumption, the Commonwealth believes that the Court should conduct that review in the context of a case that presents the full range of constitutional challenges to DOMA, including challenges under the Tenth Amendment and Spending Clause that are best presented by a State,” the brief states. “The Commonwealth accordingly agrees that the Court should grant review in this case and affirm the judgment of the court of appeals.”

Coakley’s brief responds to the appeal that filed House Speaker John Boehner’s (R-Ohio) attorneys filed before the Supreme Court in response to the First Circuit decision. The Bipartisan Legal Advisory Group (BLAG), under the direction of Boehner, took up defense of DOMA following a party-line vote after the Obama administration last year stopped defending the law in court.

BLAG has already presented the question to justices on whether DOMA violates the equal protection clause under the U.S. Constitution, but Coakley presents two new questions: (1) Whether Section 3 of DOMA violates the Tenth Amendment, and (2) Whether Section 3 of DOMA violates the Spending Clause under Article I of the U.S. Constitution.

Coakley, who filed her lawsuit in 2009, has been contending DOMA is unconstitutional because it interferes a state’s right to regulate marriage under the Tenth Amendment. Massachusetts legalized same-sex marriage in 2003.

Additionally, she contends DOMA exceeds Congress’ authority under the Spending Clause because the law impacts joint state-federal programs, such as Medicaid and operation of veterans’ cemeteries.

In a statement accompanying the brief, Coakley emphasizes that DOMA “is a discriminatory and unconstitutional law” because it unfairly impacts married same-sex couples and the Commonwealth of Massachusetts.

“It is our firm conviction that in order to truly achieve marriage equality all couples must enjoy the same rights and protections under both state and federal law,” Coakley said. “If the Supreme Court chooses to examine this case, we will look forward to once again making clear that DOMA and its pervasive discrimination is unconstitutional and should be ended.”

Despite Coakley’s call for the Supreme Court to take up review on DOMA on the basis that it violates state’s rights, the First Circuit rejected her arguments while ruling that DOMA was unconstitutional for other reasons. Judges had ruled the consequences of DOMA on Massachusetts “do not violate the Tenth Amendment or Spending Clause” while acknowledging “Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”

The brief now means four parties — both for and against DOMA — have asked the Supreme Court to review DOMA. Late last month, BLAG filed in appeal in response to the Supreme Court. A week later, the Justice Department, which stopped defending in court last year, also asked the Supreme Court to consider the constitutionality of DOMA by taking up the Massachusetts case and Golinksi v. United States.

The American Civil Liberties Union, on behalf of New York widow Edith Windsor, last week asked the high court to take up the case she filed against DOMA, Windsor v. United States.

All parties involved in the case have 30 days to respond to Coakley’s petition, but response to the filings from BLAG and the Justice Department are due on August 2. The Supreme Court won’t be able to decide whether to hear the case until justices return from summer recess and the start their conference on September 24.

Gay & Lesbian Advocates & Defenders, which filed the Gill case that has been consolidated with the Massachusetts lawsuit, declined to comment on the Coakley filing.

NOTE: This article has been updated to the reflect Coakley’s filing is the fourth petition for the Supreme Court to review DOMA.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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