Gay-marriage win; progressive agenda loss?

Court Complications
By DEIRDRE FULTON  |  July 19, 2010


Gay-rights supporters won a huge victory on July 8, when a federal judge in Boston ruled that the Defense of Marriage Act (DOMA) — the federal law that defines marriage as between one man and one woman, thereby denying legally married same-sex couples important federal benefits — was unconstitutional because it violated two Amendments, the Fifth and the Tenth.

It was a multi-pronged takedown in response to a pair of separate but parallel DOMA challenges. One, brought by Massachusetts Attorney General Martha Coakley, claimed that DOMA interferes with the state's sovereign ability to define marriage. The other, filed and argued by Gay & Lesbian Advocates & Defenders on behalf of seven couples and three individuals, argued that DOMA violates the US Constitution's equal-protection clause.

In his decision on the state case, Judge Joseph Tauro agreed DOMA infringed on Massachusetts's ability to define its own marriage laws. "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment," Tauro wrote.

In the GLAD case, Gill v. the Office of Personnel Management, Tauro concurred with the plaintiffs that the federal government did not provide valid reasons for preserving DOMA — or for enacting it in the first place.

Currently, Tauro's rulings affect only same-sex married couples in Massachusetts. If the federal government appeals (which it is very likely to do), the case will go to the US Court of Appeals for the First Circuit — an outcome there would also affect Maine, New Hampshire (which also allows gay marriage), Rhode Island (which may soon consider the question), and Puerto Rico. After that: the Supreme Court.

There are other potential implications of these DOMA decisions. There's the question of how a renunciation of DOMA affects the larger issue of same-sex marriage — if it's unconstitutional to treat heterosexual and homosexual marriages differently, mustn't it be similarly prejudiced to bar same-sex couples from marrying in the first place?

Most interesting is the quandary that Tauro's decision on the Coakley case presents for conservatives, many of whom consider themselves "constitutionalists" who believe that states' rights should trump federal regulation. Here, a social and political issue oft-opposed by the right wing — gay marriage — is dealt a victory using the same means that Tea Partiers cite when arguing against health-care reform, or around immigration issues: states' rights.

"Conservatives are the ones now faced with a dilemma," attorney and Phoenix contributor Harvey Silverglate says. "In order to reverse Judge Tauro, they have to convince the appellate courts that they were not really all that serious, all along, in arguing for states' rights and for the viability of the Tenth Amendment."

Yet progressives shouldn't gloat too long.

Yale Law School professor Jack Balkin noted on his Balkanization blog last week, "Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health-care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel."

Too late — there's no turning back now.

  Topics: News Features , Politics, Gay marriage, DOMA,  More more >
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