I Wish I Could Wish You Luck…
Policy 
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…but as a supporter of same-sex marriage I think that Massachusetts’ efforts to have the federal Defense of Marriage Act (DOMA) declared unconstitutional are likely to prove both unsuccessful and counterproductive.
DOMA has, basically, two effects. First, it provides that no state is required to treat a same-sex relationship as a marriage, even if that relationship is treated as a marriage one or more other states. Second, it defines marriage as an exclusively opposite-gender union for the purposes of federal law. The lawsuit attacks this second part of the law on the grounds that it violates the Tenth Amendment (which reserves to the states all powers not delegated to the federal government) as well as the Article I, Section 8 limitations on congressional power.
While I’ll wait to read the complaint, at first blush these claims do not strike me as being particularly strong. Courts construe the legislative power of the purse quite broadly, and in most cases decline to second-guess Congress’ spending decisions. While one might argue that same-sex marriage is a fundamental right such that legislative acts burdening it should be subject to heightened judicial scrutiny, the complaint seems to concede that ground by refraining from challenging the first part of DOMA. As for the Tenth Amendment argument, courts have, again, generally deferred to Congress except in cases where Congress either (a) tries to command state governments to pass certain laws, or (b) tries to press state officials into service to enforce federal laws. Otherwise, federal law will prevail over inconsistent state law under the Supremacy Clause.
The danger of these sorts of challenges lies in what’s termed stare decisis, which is a kind of “let sleeping dogs lie” principle in American jurisprudence. Our legal system values the predictable application of the law. Courts treat past decisions as precedent, and tend to avoid revisiting them. That’s not to say that they’ll never do so; it’s just that it’s much, much harder to persuade a court to reverse a past decision than to persuade it to extend or distinguish the decision. Additionally, our federal courts are regionally hierarchical: losing a case in the Federal District Court of Massachusetts settles federal law for the entire state, and losing an appeal in the First U.S. Circuit Court of Appeals settles federal law for most of New England. If you lose a vote, either on the ballot or in the legislature, it’s certainly a setback but you can almost always get another bite at the apple. Losing a lawsuit, on the other hand, is much harder to undo and potentially has much broader ramifications, and thus much more consequential.
The Democratic Party controls the White House and has sizeable majorities in both houses of Congress. There’s not a soul in the Massachusetts congressional delegation that doesn’t support same-sex marriage. There’s nothing preventing them from bringing up a bill to repeal DOMA, and while getting it passed would undoubtedly require the expenditure of some political capital, it’s a much less risky strategy than trying to get DOMA overturned in federal court.
(Hat tip Chris Hazel.)
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