July 8, 2010
by Robert Cruickshank
UPDATE: Here’s the PDF of the ruling, via GLAD. Original post begins here:
As we await the ruling from Judge Vaughn Walker on Perry v. Schwarzenegger, we just received word about a decision in two marriage equality suits. A federal judge in Massachusetts just ruled that Section 3 of the Defense of Marriage Act, the federal law passed in 1996 that bars federal recognition of same-sex marriage and enables states to withhold recognition of same-sex marriages performed in other states, is unconstitutional.
The ruling in the cases, Commonwealth of Massachusetts v. Health and Human Services and Gill v. Office of Personnel Management, does not strike down DOMA in its entirety. But what it does appear to do is to remove the ban on the federal government’s recognition of same-sex marriage.
Bay Windows, New England’s largest GLBT newspaper, provides a very useful overview:
In an enormous victory for same-sex marriage, a federal judge in Boston today (Thursday, July 8) ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act (DOMA) unconstitutional.
In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.
In Commonwealth of Massachusetts v. Health and Human Services, Tauro considered whether the federal law’s definition of marriage — one man and one woman — violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others. In Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders (GLAD), a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law.
Adam Bink at Open Left offers the key section from Judge Tauro’s ruling in Commonwealth:
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. 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. For that reason, the statute is invalid.
In other words, Judge Tauro’s ruling in Commonwealth is that the 10th Amendment prevents Congress from defining marriage, a right that the states held until 1996. It should be noted that there is considerable precedent, including Loving v. Virginia, giving the US Supreme Court the right to overturn bans on certain kinds of marriage, so this case should not be construed to limit the federal courts’ ability to provide for marriage equality.
The other suit, Gill v. OPM, further establishes that Section 3 of DOMA was passed with discriminatory intent and is invalid. The outcome of that suit would appear to mandate that the federal government provide benefits to couples in a same-sex marriage that is sanctioned by the state. This may lead to same-sex spouses being able to file a joint return with the IRS, something that has been denied to them (including the 18,000 same-sex couples married in California between May and November 2008) under DOMA.
Early reaction is in from Evan Wolfson at Freedom to Marry:
Today’s historic ruling strikes down federal marriage discrimination enacted under the so-called “Defense of Marriage Act” in 1996. DOMA created two classes of marriage – those the federal government respects and some it doesn’t – denying married same sex couples and their families equal treatment and depriving them of the crucial safety-net that marriage brings. In Gill et al. v. Office of Personnel Management, eight married same-sex couples and three widowers, represented by the Gay & Lesbian Advocates & Defenders, demonstrated that federal marriage discrimination harms gay and lesbian couples who are trying to make ends meet and protect their families.
Today’s ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional. The decision will be appealed and litigation will continue. But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason. Today’s ruling provides increased momentum to the national movement to end exclusion from marriage and Freedom to Marry’s Roadmap to secure the freedom to marry nationwide. The crucial work of changing hearts and minds and winning the freedom to marry in more states is more urgent than ever as we build on today’s momentum and encourage other decision-makers to do the right thing and end exclusion from marriage.
We’ll have more updates as we learn more about the ruling and its likely implications. It will be interesting to see what, if any, bearing this ruling has on Judge Walker’s decision in Perry v. Schwarzenegger.
UPDATE 2: More from Judge Tauro’s decision:
But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.
Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.
This is a very sensible and effective response to the silly argument that same-sex marriage somehow limits or undermines heterosexual procreation.
Adam Bonin has a good analysis up over at Daily Kos.
A key upcoming question is whether the Obama Administration will appeal this decision. It would be wise of them to not do so.