Judge strikes down part of federal DOMA marriage ban

by Anthony Glassman

Boston--A major part of the federal Defense of Marriage Act is unconstitutional, a federal judge ruled on July 8.

The act, often called DOMA,� prohibits the federal government from recognizing same-sex marriages for any purpose.

In two cases, U.S. District Court Judge Joseph L. Tauro found that this denied states� rights by limiting their ability to define marriages, and violated the Equal Protection clause.

The cases, brought by Gay and Lesbian Advocates and Defenders of Boston and by Massachusetts Attorney General Martha Coakley, did not challenge another part of DOMA that allows states to deny recognition of same-sex marriages from other states.

Massachusetts was the first state to allow full same-sex marriage. Five now do, plus the District of Columbia.

In the Massachusetts case, Tauro found that federal funding restrictions arising out of DOMA violated the Tenth Amendment, which says that rights not granted to the federal government or barred from states go to the states. DOMA restricted funding for certain programs in states that allow same-sex marriage.

That puts Massachusetts in the unenviable position of discriminating against its own residents for being in a legal marriage, creating two classes of married couples in the state.

�States� rights� is a strongly conservative principle, and was one of the most major arguments for the passage of DOMA in the first place. It was posited that without DOMA, a Constitutional requirement that states give full faith and credit to each others� acts could force a conservative state to recognize marriages that the majority of its citizens opposed.

That argument was also used, decades ago, against interracial marriages.

In the GLAD case, attorneys focused on a few federal benefits that opposite-sex married couples receive, but from which same-sex couples are excluded by DOMA.

In that case, the judge found that DOMA violated the equal protection clause of the constitution by granting benefits to one class of married couples but denying them to another.

The Justice Department found itself the target of sharp criticism in May when it defended the constitutionality of DOMA in the cases, despite President Barack Obama�s campaign promises to repeal the law.

Prof. Jack M. Balkin of Yale Law School told the Boston Globe that the decisions would likely be struck down on appeal, but that they were both fascinating and contradictory.

The cases, said Balkin, ignore the fact that the federal government is already deeply involved in marriage through welfare, taxes, health care and Social Security, among other policies, while applying the federal Constitution to marriage rights in the GLAD case.

�The two opinions are at war with themselves,� he noted.

He did, however, admire the conservative principles used to find DOMA unconstitutional.

He said Tauro�s decisions were �attempting to hoist conservatives by their own petard, by saying: �You like the Tenth Amendment? I�ll give you the Tenth Amendment! I�ll strike down DOMA!� �

�The key issue in this case, and in all litigation about marriage equality for gays and lesbians, is, does the government have a rational basis for treating same-sex couples differently from heterosexual couples?� said University of California-Irvine School of Law dean Erwin Chemerinsky. �Here, the court says there is no rational basis for treating same-sex couples differently from heterosexual couples.�

�Therefore, DOMA is unconstitutional, and conditioning federal funding on compliance with DOMA is unconstitutional,� he continued.

Chemerinsky disagreed with Balkin, believing that the two decisions worked together to establish the right to marriage for gay men and lesbians.

The case, if appealed, would go to the U.S. Court of Appeals district that also includes New Hampshire, Rhode Island, Maine and Puerto Rico. From there is could go to the U.S. Supreme Court.

The Justice Department has not yet said whether it will appeal the ruling.

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