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States’ rights on marriage have limits, Healey says

Attorney General Maura Healey.
Attorney General Maura Healey.(Wendy Maeda/Globe Staff)

As attorney general of Massachusetts, Maura Healey has written her first friend-of-the-court brief to the Supreme Court, arguing states should not have the authority to ban marriage for same-sex couples.

The issue of states’ rights is near and dear to the Supreme Court’s swing vote, Justice Anthony Kennedy. He wrote the majority opinion in a June 2013 ruling that struck down the federal Defense of Marriage Act because it denied benefits to gay couples married in states, including Massachusetts, that define marriage to include gay couples. In doing so, Kennedy repeatedly characterized such states as simply exercising their “sovereign power.”

So, if states have the sovereign power to grant marriage licenses to same-sex couples, can other states have the sovereign power to deny them?

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Healey’s brief, filed last month, addresses the issue head on. While deference to state authority to regulate marriage “is critical to the balance struck by our federal system,” she argues, states are nevertheless “bound by constitutional guarantees,” such as equal protection of the law.

On these appeals, attorneys for same-sex couples argue the Constitution’s guarantees of equal protection and due process trump states’ rights to exclude same-sex couples from marriage laws.

Massachusetts’ brief supports the appeal of the couples, who are in four states that ban both marriage licenses for same-sex couples and recognition of out-of-state marriages of same-sex couples. Healey is the nation’s first openly gay state attorney general.

Attorneys general from 15 other states and the District of Columbia signed on to Healey’s brief — all of them Democrats, like Healey, and all from states that allow same-sex couples to marry. Healey said she circulated the brief to the attorneys general from all 49 other states, even those seeking to retain their bans.

“Ever since Massachusetts became the first state to license marriages between same-sex couples, support for marriage equality has grown rapidly across the country,” Healey wrote in an e-mail. Asked why she circulated the brief to every state, she replied, “I wanted to offer all states the opportunity to share their support with the court.”

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Two years ago, under Attorney General Martha Coakley, Massachusetts signed on to a brief that said states have the authority to define marriage to include same-sex couples. In a 5-to-4 decision, authored by Kennedy, the Supreme Court ruled the Defense of Marriage Act, or DOMA, violated the equal protection rights of married same-sex couples.

Same-sex couples can currently obtain marriage licenses in Massachusetts and 36 other states, although 10 of those states have appeals pending. There are same-sex marriage bans in the 13 other states. If the Supreme Court should uphold bans on same-sex marriages, it would also have to decide whether states that refuse marriage for same-sex couples have a right to refuse to recognize a marriage license a same-sex couple obtained in another state.

In this area, Healey’s brief seems to anticipate a pushback from Justice Antonin Scalia, known for asking pugilistic questions with political overtones. For instance, in this case, he might ask why gay couples who want to get married don’t just move to a state that recognizes gay marriages.

“Life today is rarely confined to one state,” Healey wrote in her brief to the court. “People move residences approximately 12 times, on average, over the course of their lives. They travel throughout the country and beyond. They often leave their home states for work and school. . . . Individuals work in one state for companies headquartered in another. Many families also have members who reside in multiple other states. Given this complex geography of modern lives, non-recognition profoundly affects married couples nationwide.”

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Healey will be on hand April 28 at the Supreme Court when the justices hear oral arguments in the marriage cases.

Lisa Keen can be reached at LisaKeen@mac.com.