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Federal Same-Sex Marriage Ban Unconstitutional, Judge Rules

5 years ago
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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.

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Western Concrete

It is amazing that the word marriage and its definition has been hijacked. Never in history has the definition ever been anything but one man and one woman. Federal or state statutes appear to be an avenue that the gay lobby wants to use to re-define a word that already has a meaning. You can get together any way you want, but don't try to change a word to call your union something it is not. Better to call it a civil union as some states do, which would more accurately picture the same-sex union. No one has denied the rights of the gay community, they can function in our society as anyone else and yet they want to force their own ill-defined definition of a word on a society to make themselves feel like they can be accepted. Leave that up to individuals to decide how they want to live, but don't force me or the society we live in to endorse a definition that is not consistent with the meaning of the word.

July 09 2010 at 6:52 PM Report abuse -5 rate up rate down Reply
1 reply to Western Concrete's comment

you are incorrect. john boswell researched thoroughly and wrote about Same Sex Unions in Pre-Modern Europe in 1994

July 09 2010 at 7:16 PM Report abuse rate up rate down Reply

Morals, are not important anymore. Liberals in positions of authority are making decisions, that will slowly decay the visions of our future. I have nothing against lesbians, it is the gay men who have a tendancy to spread 'aids', that worries me

July 09 2010 at 1:34 PM Report abuse -6 rate up rate down Reply

If you justify same sex marriage, would you justify people getting married to animals, what is the difference!

July 09 2010 at 12:56 PM Report abuse +1 rate up rate down Reply

Sad day. Our nation will be punished because of Washinton rules being made, going against the Bible. No rule has been changed in the Bible. Sodom and Gomorah. Who ever goes against Israel will be punished. All their moves are against GOD.Our nation to survive only thru devine intervention. We must open our eyes they have went to far. A new election can not save us now. We must turn to God repent and pray daily for our nation. Look at what has been taken from us thru the years. It has now been speeded up. Look at all the Storms flood and much more. The count down began in 1948 when Israel began as a nation.

July 09 2010 at 12:55 PM Report abuse -10 rate up rate down Reply
1 reply to susanna's comment

I'm so sorry Susanna - our nation has already been 'punished'!!! You cannot correctly spell the name of our capitol or correctly explain your viewpoint because you have an insufficient knowledge of the english language. Our punishment is that, sadly, YOU are not alone!

July 09 2010 at 7:19 PM Report abuse +4 rate up rate down Reply

repukeslie7: what you say has merit; however, the rub comes when states (like Massachusetts) start telling religios entities they must countenance what the religions believe to be wrong or sinful. Then it becomes a matter of religious freedom, and you've started a firestorm. I say keep it civil, literally, and there might be a solution.

July 09 2010 at 12:29 PM Report abuse +2 rate up rate down Reply
1 reply to trb2244's comment

I am from Massachusetts. No court in this Commonwealth has forced any religious institution to countenance "what the religions believe to be wrong or sinful". If fact, just the opposite has happened. Religious entities have attempted to force government authority to add their beliefs to our Commonwealth's constitution - which as you might know - is against FEDERAL LAW. The 'seperation of Church and State' works both ways; the government is forbidden from legislating for religious entities AND religious entities are forbidden from forcing the government to conform to their beliefs.

July 09 2010 at 7:27 PM Report abuse +4 rate up rate down Reply

Will someone please explain to me how it is unconstitutional to violate state's rights by instituting a federal gay marriage ban but it's OK for the Feds to sue a state for instituting an immigration policy that differs from other states? They seem to be under the guise that "we are one land and must have one law"; Is it my imagination or are the Feds using the constitution to support state's rights when what they say suits them and then using the same constitutional law to suppress state's rights when what they say does not suit them?

July 09 2010 at 12:38 AM Report abuse +10 rate up rate down Reply
1 reply to BobaLou's comment

I think I can explain this pretty easily BL. The Constitution gives authority to defend the nations borders to the FEDERAL government. The Constitution does NOT give authority to the Federal Government to legislate rules regarding MARRIAGE (or insurance, education, motor vehicle licensing, etc). These things were specifically left absent from the Federal Constitution so that the individual states could regulate them.

July 09 2010 at 7:35 PM Report abuse +1 rate up rate down Reply

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