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Editor: Katharine Van Tassel
Akron Univ. School of Law

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Thursday, October 11, 2012

The DOMA petition you should be following

You may be thinking "DOMA? Hello, this is HEALTH LAW."  Please stick with me for a moment.  The Supreme Court appears to be collecting petitions for certiorari regarding the Defense of Marriage Act, likely to determine which circuit's decision is the best vehicle for considering the constitutionality of this federal law.  One such petition results from the First Circuit's decision in Massachusetts v. Department of Health and Human Services/Hara v. Office of Personnel Managementwhich held that section 3 of DOMA violated the Fifth Amendment's Equal Protection Clause.  The court reasoned that promoting marriage is not rationally related to denying federal benefits to same-sex couples, thereby avoiding the creation of a new category of suspect class.  The twist is that the state of Massachusetts also claims that section 3 of DOMA, which denies federal economic benefits to same-sex couples, exceeds Congress's Spending Clause authority and infringes the state's 10th Amendment rights.  While the First Circuit did not agree with the state on these points, it did incorporate federalism concerns into its Equal Protection Clause analysis by noting that states traditionally have defined marriage, therefore the federal government cannot protect the state of Massachusetts from its own definition of marriage by promoting heterosexual marriage.

The implications of Massachusetts v. DHHS, should it be the petition that is granted, are potentially far-reaching.  Even without the overlay of this litigation, DOMA affects federal healthcare programs.  For example, a gay spouse who did not work outside the home could not obtain spousal benefits from Social Security or automatically receive Medicare Part A benefits.  If the individuals in a same-sex marriage are treated separately for Medicaid accounting purposes, an elderly gay spouse could be vulnerable if his partner is in nursing home care that results in impoverishment because the spouse living at home could lose the family home rather than being protected in the way that heterosexual spouses are.  This is part of Massachusetts' original claim, that it could lose its Medicaid funding entirely for allowing gay couples, legally married in the state, to qualify as spouses for Medicaid purposes.

So, this litigation may have significant healthcare implications because Massachusetts pushed the spending power and Tenth Amendment aspects of the First Circuit's opinion harder after NFIB v. Sebelius was decided, even though it won on Fifth Amendment grounds.  Thus, if the Supreme Court grants this petition, it could clarify the spending and federalism points made in the Medicaid portion of NFIB, which held that the ACA's expansion of Medicaid was unconstitutionally coercive and rendered the expansion effectively optional for states.  The irony of this case is that Massachusetts seeks to preserve its traditional prerogative in an area that is generally reserved to the states - family law - which could place the conservative-leaning justices in a tough spot (for instance, Justice Scalia is a firm believer in protecting the states through the Tenth Amendment, but he also does not believe that same-sex marriage is permissible let alone constitutionally protectable).  The Court could be inclined to soften its protective states' rights stance if it wants to avoid supporting same-sex marriage.  Likewise, a consequentialist decision could result in the Court retreating from limits placed on the spending power in NFIB by allowing Congress to regulate marriage through section 3 of DOMA.  But, if the Court stays true to the spending power limits and strong federalism principles articulated in NFIB, then it would have to strike down DOMA and allow same-sex couples to be counted as married in programs such as Medicare and Medicaid.  Stay tuned...

[NH]

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