Mass. AG argues against federal gay marriage ban

By Steve Leblanc
Associated Press Writer / May 26, 2010

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BOSTON—The Massachusetts attorney general asked a judge Wednesday to strike down a federal gay marriage ban, arguing it interferes with the right of states to define marriage and have those marriages acknowledged by the federal government.

The challenge to the constitutionality of the Defense of Marriage Act by Attorney General Martha Coakley's office was heard in federal court in Boston.

Assistant Attorney General Maura Healey argued states have historically had the right to define marriage.

She said the 1996 law could result in the denial of Medicaid and other benefits to married couples in Massachusetts, where same-sex unions have been legal since 2004.

A lawyer from the U.S. Justice Department, Christopher Hall, argued the federal government has the right to set eligibility requirements for federal benefits -- including requiring that those benefits only go to couples in marriages between a man and a woman.

Hall also pointed to instances where the federal government has regulated the definition of marriage in certain immigration cases.

It is the second time this month that a challenge to the federal law, also known as DOMA, has been heard in a federal court.

Earlier this month, gay rights groups launched their own challenge before the same judge, arguing the law unconstitutionally denies gay couples federal benefits available to other married couples.

An estimated 15,000 same-sex couples have been married in Massachusetts.

Healey argued the federal law not only intrudes on an area of core state sovereignty, but "forces Massachusetts to discriminate against its own citizens."

"Never before has the federal government told a married couple that they are married under state law but not under federal law," Healey said, adding that states "have always had exclusive control over defining and regulating marriage."

Healey cited the case of a military veteran who has asked that he and his same-sex spouse be buried in a veterans' cemetery when they die, a privilege offered other married veterans. She said the state has decided to authorize the burial, even though it risks losing federal money for doing so.

"Why? Because it's the right thing to do," she said. "We are now subject to forfeiture and lose of funds."

Hall argued the law doesn't intrude on states' sovereignty because it doesn't bar them from legalizing same-sex marriages.

Hall also argued that by approving the 1996 marriage law, Congress didn't preclude revisiting the potentially divisive issue in the future when there might be more of a national consensus.

"Congress decided to freeze the status quo and let the democratic process work itself out at the state level," he said.

Hall defended the federal government's right to set eligibility requirements for federal funds -- noting that federal highway funds must be spent on highways.

Under questioning from U.S. District Court Judge Joseph Tauro, however, Hall acknowledged the law sets a different marriage standard for state and federal governments.

Tauro also pressed Hall on the case of the veteran, asking if the federal government had an interest in "perpetuating heterosexuality in the graveyard."

When Hall tried to argue that the state faced no immediate harm by authorizing the burial since the Obama administration opposes the law and is pushing for its repeal, Tauro pressed him on what constituted an immediate threat.

"Do you have to wait until the dirt from the shovel is in the grave?" Tauro said.

The judge also took issue with status quo argument, saying that preserving it in 1996 could have meant preserving the right of states to define marriage and have those marriages recognized by other states and the federal government.

Tauro hasn't indicated when he would rule on the challenges. top stories on Twitter

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