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DOMA Arigato
Author: BobR    Date: 07/09/2010 11:19:43

In what may be one of the most important court rulings this year, a judge in the U.S. District Court in Boston ruled that the Defense of Marriage Act (DOMA) was unconstitutional. In many ways, this is a huge win for the supporters of gay marriage. The rationale behind the ruling, however, is a double-edged sword.

In his ruling, judge Joseph Tarau stated:
The federal law banning gay marriage is unconstitutional because it interferes with the right of a state to define the institution and therefore denies married gay couples some federal benefits
The state had argued the law denied benefits such as Medicaid to gay married couples in Massachusetts, where same-sex unions have been legal since 2004.

Tauro agreed and said the act forces Massachusetts to discriminate against its own citizens in order to be eligible for federal funding in federal-state partnerships

The act "plainly encroaches" upon the right of the state to determine marriage, Tauro said...

On the surface, this should also make conservatives' heads explode. Here is a judge using their "states' rights" argument in a ruling that they will undoubtedly disagree with. Implicitly, the judge is saying that the Federal government cannot force a state to deny rights to gay couples.

The other side of that sword, of course, is that it implies that the Federal government can't prevent states from denying rights to gay couples. This can actually be used as ammunition for states that want to ban (or have already banned) gay marriage.

The other aspect of the ruling is that it since it is a district court, it only really applies to the court's jurisdiction:
The rulings apply to Massachusetts but could have broader implications if they're upheld on appeal.

This of course would require the Justice Department to appeal the ruling. If it does, that will anger gay marriage advocates who think the Obama Justice Dept. should leave it as is. There are two things wrong with that. First, if the ruling is left as is, it only applies to Massachusetts, so the opportunity to have the ruling applied nationwide is lost. The other is more philosophical from a political perspective: we on the left were angry when Bush interfered with and influenced the Justice Department. Are we now to expect Obama to do that which we loathed?

Whether or not it gets appealed and ends up in the Supreme Court, there are still two Constitutional aspects to this issue that will eventually make it the SCOTUS. They are equal protection, and interstate commerce. The regulation of the latter is explicitly put under the authority of Congress in Article I, Section 8. Article I, Section 10 also prohibits states from "impairing the obligation of contracts", which could be interpreted to mean the marriage contract from a state which permits gay marriage. Article 4, Section 1 also requires states to recognize the laws of other states.

The 14th Amendment (Section 1) provides equal protection under the law to ALL citizens. This is the approach in the California Prop 8 case, and the one most likely to succeed.

So while this ruling is a positive sign, it is just a first step, and a step into murky water fraught with mines and traps. There is a still a "Loving -vs- Virginia" lawsuit out there that needs to happen before this is finally decided one way or the other. Along the way, we will have to deal with idiot politicians who try to make hay out of this by proclaiming that gay marriage is like incest or that homosexuality should be outlawed. Can we really expect Congress to do anything with that kind of poisonous climate?

74 comments (Latest Comment: 07/10/2010 13:18:28 by BobR)
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