Federal Same-Sex Marriage Ban Unconstitutional, Judge Rules

Declaring that no "fairly conceivable set of facts" could justify its discriminatory provisions, a noted federal judge in Massachusetts Thursday ruled unconstitutional Section 3 of the Defense of Marriage Act, the Clinton-era federal statute which defined marriage to include "only a legal union between one man and one woman as husband and wife."

The decision, sure to be appealed, could ultimately give thousands of same-sex married couples across the country the right to federal retirement and death benefits -- such as the Widower's Insurance Benefit or the Lump Sum Death Benefit or favorable IRS status -- currently available only to married heterosexual couples. The case was brought by plaintiffs who had been deprived some of these benefits under federal law because they were same-sex couples -- even though their same-sex marriages were legal in their home state of Massachusetts.

In a sharp and lively 39-page summary judgment order, Chief U.S. District Judge Joseph Tauro, a Nixon appointee and nationally respected jurist, ruled that the contentious federal statute violated the equal-protection rights of same-sex couples who claimed they were being deprived of federal marriage-based benefits. The federal statute (wherein same-sex marriages on the state level are not recognized under federal law) is fatally flawed, the judge noted, because the government's justifications for it have no bearing upon its effect.

"This court is soundly convinced," Judge Tauro wrote, "that the government's proffered rationales . . . are without 'footing in the realities of the subject addressed by [DOMA].' And 'when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,' this court finds that DOMA lacks a rational basis to support it."

Tauro also questioned the wisdom and authority of any sort of federal control over marriage. He wrote: "There can be no dispute that the subject of domestic relations is the exclusive province of the states. And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law. The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states' power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government's argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest."

Tauro's ruling carries no precedential weight outside of the Massachusetts federal district but it will likely impact the roiling same-sex marriage battle in California over Proposition 8, the ballot initiative that outlaws same-sex marriage there. There is no doubt that fellow veteran federal Judge Vaughn Walker, presiding over the Prop 8 trial, will read the ruling to determine whether it is in any way applicable to the legal tangle he has to untwist sometime soon. Perhaps with an eye toward that larger legal referendum about same-sex marriage, and certainly with an eye toward Supreme Court swing Justice Anthony Kennedy's controlling precedent in this area, Tauro made sure he was clear about how little he thought of the post-hoc rationalizations of government attorneys trying to defend the Marriage Act.

Tauro wrote: "DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that 'there exists no fairly conceivable set of facts that could ground a rational relationship' between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection." This is significant because Justice Kennedy, who almost surely will decide the fate of same-sex marriage in America with his swing vote, would likely be more open to undercutting a statute which failed even the permissive "rational basis" standard of judging statutes. Kennedy authored the Supreme Court's seminal opinion in Lawrence v. Texas, which just a few years ago struck down a state ban on consensual homosexual sex. In that case, Kennedy pointedly noted that his holding "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

It is unlikely that the ruling would go into effect soon. The Justice Department is expected to appeal the ruling to the 1st U.S. Circuit Court of Appeals, then perhaps to the Supreme Court. Such a challenge could come as early as next year -- too early for the 2012 presidential race but too late for the 2010 midterm congressional elections.