Wednesday, July 14, 2010

Federal Judge, 'DOMA unconstitutional' after 14 years

In two companion rulings last week, US District Judge Joseph Tauro found that Section 3 of the Defense of Marriage Act ("DOMA") violates the Fifth and Tenth Amendments of the US Constitution.

This is surprising for two reasons: first, this ruling could strike a hefty blow to the 14-year old DOMA, though it is sure to be appealed by the DOJ; and secondly, NO ONE HEARD ABOUT IT! The story was able to make its way onto a handful of news cycles by Thursday morning (a week later...), but the issue has largely been ignored by major broadcasting media.

Gill v. Office of Personnel Management

Massachusetts v. U.S. Department of Health and Human Services


If you don't know what I'm talking about, then you a bit of context. The Defense of Marriage Act was signed into law in 1996 by then-President Bill Clinton (a little disappointing) after the bill was fast-tracked through Congress with overwhelming support in both the Senate (85-14) and the House (342-67). [...Side note: Clinton was then, and for years remained and opponent of same-sex marriage until very recently. Though he pushed for the the adoption of "Don't Ask, Don't Tell" as a compromise with the Joint Chiefs and Congress to allow homosexual men and women to serve in the military (in theory), the White House likely saw the bill as an opportunity to court more conservative voters in the '96 election.]

Many policy makers at the time were freakin out and claiming that the recent recognition of same-sex marriages in Hawaii would lead to a (*cough) 'domino effect' among other states, as they would be required to also recognize those Hawaiian marriages under the Full Faith and Credit clause of Article IV of the US Constitution - which basically says each state has to respect the legal benefits or certificates issued in any other state of the US. This is a fair concern, because that is the law, and it says so in the Constitution. What happened next was a bit crafty. Key law makers realized that barring same-sex marriage across the US and in every state, with a federal law, could be seen as a little too overreaching, and it would certainly be struck down in the courts on grounds of infringing on state sovereignty. So instead of targeting the issue broadly and saying that states would not have to recognize certain legal marriages of other states (sticky ground again), the federal government decided to specify what the legal definition of "marriage" and "spouse" meant, on a federal level.
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
It's kind of like cheating, but it worked. Other states would not have to recognize those marriages that failed to meet the federal definition. The bill passed, but since 2005 the Act has faced a host of legal challenges. The Supreme Court has so far refused to accept any cases regarding the DOMA, but given Judge Tauro's scathing rebuttal of the legislation, it may soon be forced to. The decision cited contradictions to the the Tenth Amendment and the Due Process Clause of Amendment V. In the case of Gill the plaintiffs did not challenge the right of same-sex couples to marry, but rather the federal government's different treatment of couples legally married in Mass. and opposite-sex couples, citing health, retirement and tax benefits.
"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 ... As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution."
In the Massachusetts case - in which plaintiffs presented specific costs and challenges faced by the state since the passage of DOMA - Judge Tauro cited the Spending Clause of the Tenth Amendment in his criticism of DOMA.

That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.

The Justice Department this week pledged to make an appeal within the 14-day 'waiting period' after the ruling, but this could also drop the Obama White House into a tricky position. In February of 2008, Obama's campaign issued a clear statement on LGBT rights. "Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. Senate," the statement reads. "While some say we should repeal only part of the law, I believe we should get rid of that statute altogether. Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does." In 2009, and again this week, the DOJ has seemingly contradicted this position by pursuing appeals to DOMA challenges, and this has justifiably concerned many gay-rights advocates who supported the original campaign. The White House will have to make its position clear in the coming months, but for now you can follow the story online at LA Times or PoliGlot blog.

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