Judge Calls U.S. Gay-Marriage Ban Unconstitutional

[Nanners52674]

Judge Calls U.S. Gay-Marriage Ban Unconstitutional
By ABBY GOODNOUGH and JOHN SCHWARTZ
Published: July 8, 2010

BOSTON — A federal judge in Massachusetts on Thursday found that a law barring the federal government from recognizing same-sex marriage is unconstitutional, ruling that gay and lesbian couples deserve the same federal benefits as heterosexual couples.

Judge Joseph L. Tauro of United States District Court in Boston sided with the plaintiffs in two separate cases brought by the state attorney general and a gay rights group.

Although legal experts disagreed over how the rulings would fare on appeal, the judge’s decisions were nonetheless sure to further inflame the nationwide debate over same-sex marriage and gay rights.

Tracy Schmaler, a spokeswoman for the Justice Department, said federal officials were reviewing the decision and had no further comment. But lawyers for the plaintiffs said they fully expected the Obama administration to appeal. An appeal would be heard by the First Circuit, which also includes Rhode Island, Maine and New Hampshire.

In the case brought by Attorney General Martha Coakley, Judge Tauro found that the 1996 law, known as the Defense of Marriage Act, or DOMA, compels Massachusetts to discriminate against its own citizens in order to receive federal funds for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to a handful of federal benefits. In that case, Judge Tauro agreed that the federal law violated the equal protection clause of the constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Judge Tauro wrote. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state.”

Proponents of gay rights embraced the rulings as legal victories.

“Today the court simply affirmed that our country won’t tolerate second-class marriages,” said Mary Bonauto, civil rights project director for Gay and Lesbian Advocates and Defenders, who argued the case. “This ruling will make a real difference for countless families in Massachusetts.”

Massachusetts has allowed same-sex couples to marry since 2004, and while more than 15,000 have done so, they are denied federal benefits like Social Security survivors’ payments, the right to file taxes jointly and guaranteed leave from work to care for a sick spouse.

In the Coakley case, the judge held that that federal restrictions on funding for states that recognize same-sex marriage violates the 10th Amendment, the part of the Constitution that declares that rights not explicitly granted to the federal government, or prohibited by the states, belong to the states.

Neither suit challenged a separate provision of the Defense of Marriage Act that says states do not have to recognize same-sex marriages performed in other states. But if the cases make their way to the Supreme Court and are upheld, same-sex couples around the country will be eligible for federal benefits that are now granted only to heterosexual married couples.

Some constitutional scholars said they were surprised by Judge Tauro’s opinions in the two cases.

“What an amazing set of opinions,” said Jack Balkin, a professor at Yale Law School. “No chance they’ll be held up on appeal.”

Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government’s longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more. The opinion in the advocacy group’s case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern.

“These two opinions are at war with themselves,” he said.

The arguments concerning the 10th Amendment and the spending clause, if upheld, would “take down a wide swath of programs — you can’t even list the number of programs that would be affected,” he said.

By citing the 10th Amendment and making what is essentially a states’ rights argument, Professor Balkin said that Judge Tauro was “attempting to hoist conservatives by their own petard, by saying, ‘You like the 10th Amendment? I’ll give you the 10th Amendment! I’ll strike down DOMA!’”

Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law, was more supportive of the logic of the two opinions, and said they worked together to establish a broad right of marriage for same-sex couples.

“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?’ Here, the court says there is no rational basis for treating same-sex couples differently from homosexual couples. Therefore, DOMA is unconstitutional, and conditioning federal funding on compliance with DOMA is unconstitutional,” he said.

A central issue in the fight over the constitutionality of California’s same-sex marriage ban is whether laws restricting gay rights should be held to a tougher standard of review than the “rational basis” test, and so Judge Tauro’s decision takes a different path that would eliminate the need for that line of argument, Professor Chemerinsky said. “There’s no need to get to higher scrutiny if it fails rational basis review,” he said.

He also said that the 10th Amendment argument, while unusual, was not the key to the cases. “The 10th Amendment here is a reminder that Congress can act only if there’s constitutional authority, and as a reminder that states are the ones that generally regulate marriage,” he said. The key to the opinion he said, is this passage laying out the equal protection rights of gay people:

“Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens. And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.

Michael Boldin, the founder of the Tenth Amendment Center, said he was gratified to see the Amendment get the support of the federal judiciary. He acknowledged that some of the socially conservative members of groups like the Tea Party, while supporting the notion of state’s rights, might be chagrined to see the logic used to support same-sex marriage.

http://www.nytimes.com/2010/07/09/us/09marriage.html

[Kevin]

I don't support the DOMA on a personal level.

That said, I certainly hate to see courts overturn anything which only merits rational basis review. It would seem that if the court really wanted to strike a blow for gay rights, rather than killing DOMA in that in flunked rational review, afford some higher level of scrutiny to discrimination based upon sexual orientation. Much of the case law supporting intermediate scrutiny for gender based classifications is directly translatable to sexual orientation.

Chemerinsky is usually on the money, but I don't buy what he's selling here.

[Psi U MC Vito]

I can see a couple of reasons DOMA would be considered unconstitutional though. First thing that pops to mind is that it violates the Full Faith and Credit clause.

[Drolefille]

Just read about that. Yay for DOMA's downfall. I hope it stands.

And Kevin, odds are the Prop-8 case will hit the Supreme Court IMO (And I thought people got upset about activist judges "wanting to strike a blow for gay rights" or otherwise.)

I'm honestly surprised DOMA's never gone down under the FF&C bit of the Constitution. The damn thing was written basically to break that clause.

[Nanners52674]

I want DOMA to be unconstitutional but not based on the 10th Amendment. While this ruling appears to be a win for gay rights I worry that this same basis could be used to prevent the Federal Government from passing a law about Gay Marriage being legal.

(I'm not sure I'm correct in my line of thinking however)

[Drolefille]

Originally Posted by Nanners52674

I want DOMA to be unconstitutional but not based on the 10th Amendment. While this ruling appears to be a win for gay rights I worry that this same basis could be used to prevent the Federal Government from passing a law about Gay Marriage being legal.

(I'm not sure I'm correct in my line of thinking however)

Yes and no, it's possible to invalidate this law on state's rights and then have another court declare that discrimination on marriage is discrimination based on gender or based on religious prejudice.

However until we get the second sort of court case (prop 8 case may have a shot) we can keep the feds from discriminating on the states that allow it.

[Kevin]

Originally Posted by Drolefille

Just read about that. Yay for DOMA's downfall. I hope it stands.

And Kevin, odds are the Prop-8 case will hit the Supreme Court IMO (And I thought people got upset about activist judges "wanting to strike a blow for gay rights" or otherwise.)

I'm honestly surprised DOMA's never gone down under the FF&C bit of the Constitution. The damn thing was written basically to break that clause.

The FF&C area is a bit wishy washy. If one state doesn't recognize such unions at all, why should it be required to recognize a union contracted elsewhere? I think it's an interesting area to look at and I'd love to see some law review articles on the subject (but I haven't).

As a family lawyer, I'm in favor of gay marriage, because it means gay divorce, meaning I suddenly have a larger client base. I already handle divorces for gay clients though, we just treat it as a dissolution of partnership.

[Psi U MC Vito]

bumping for the opinion of the CJOGC Mystic Cat

[MysticCat]

Originally Posted by Psi U MC Vito

bumping for the opinion of the CJOGC Mystic Cat

LOL. I was not working, and therefore not thinking about The Law, last week. Maybe when I read through the work-related things that piled up while I was gone, and have things set to be gone again, I'll have a chance to read the opinion, which I understand is thorough.