U.S. District Court Judge Joseph Tauro ruled on Thursday afternoon that
the defense of marriage act (DOMA) is unconstitutional
. Tauro, whose
court is in Boston and who was nominated by President Nixon, issued two
separate rulings in two separate cases. In the first, Gill vs. Office of
Personnel Management, he cited the equal-protection clause. But in the
second, Massachusetts v. Dep't of Health & Human Services, he said
that DOMA violates the state's rights enshrined in the Tenth Amendment.
What will happen next for this controversial law, which legally restricts marriage to unions of a man and a woman? And, for gay rights supporters,
is there a possibility that this could backfire?
- Will Dept of
Justice Appeal Decision? ABC News' Jake Tapper reports, "A
Justice Department spokesperson said that Obama administration was
'reviewing the decision,' and had not yet decided whether to appeal to
defend a law against same sex marriage that President Obama says he
opposes. ... the Justice Department has defended DOMA, Justice
Department spokeswoman Tracy Schmaler explaining that while President
Obama 'has said he wants to see a legislative repeal of the Defense of
Marriage Act because it prevents LGBT (lesbian, gay, bisexual,
transgender) couples from being granted equal rights and benefits ...
until Congress passes legislation repealing the law, the administration
will continue to defend the statute when it is challenged in the justice
- Why This Will Backfire and Be Repealed Yale
law professor Jack Balkin explains, "in
the long run, this sort of argument, clever as it is, is not going to
work. Much as I applaud the cleverness- which is certain to twist both
liberal and conservative commentators in knots- I do not support the
logic. ... In both opinions, Judge Tauro takes us through a list of
federal programs for which same sex couples are denied benefits. But he
does not see that even as he does so, he is also reciting the history of
federal involvement in family formation and family structure. His Tenth
Amendment argument therefore collapses of its own weight." James Joyner adds, "accepting
Tauro's interpretation would unravel much of the system that has been
built up starting with the New Deal and given credence by more SCOTUS
rulings than you can shake a stick at."
- 'Equal Protection'
Ruling Would Be Better Political science professor Steven Taylor says he "assumed
the ruling would be based on some combination of the Full Faith and
Credit clause in Article IV and the Equal Protection clause of the XIVth
Amendment." Because this ruling cites only states' rights, it could
"have the effect of reinforcing the constitutionality of same-sex
marriage bans that exist in many states." Taylor says that he thinks
equal protection remains the best way to challenge DOMA and will
ultimately overcome this ruling.
- How Tauro Set This Up to
Force SCOTUS Ruling Legal blogger Dale Carpenter writes,
"Either way, I have a hard time believing that DOMA Section 3 will be
struck down without some input from the Supreme Court. And taken
together, the decisions today present a bit of an irony: what the court
giveth to the states in Dep't of HHS (the power to decide for
themselves the meaning of marriage, as against Congress) it taketh away
from the states in Gill (the power to decide for themselves the
meaning of marriage, as against federal courts)."
- Presents Conservatives With Difficult Choice The Atlantic's Andrew Sullivan revels, "And so one of the
principles held most dearly by some of the
tea-partiers must logically hold DOMA unconstitutional. ... The right is
hoist on their own federalist petard and will now have to
choose whether states' rights or marriage inequality is more important
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