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How will the DOMA ruling affect California?

Trial analysis Uncategorized

by Brian Leubitz

If you’ve been busy waiting for the Prop 8 ruling you may not have been expecting the news yesterday that Section 3 of the so-called “Defense of Marriage” Act was ruled unconstitutional. Not that it’s likely amongst the Trial Trackers here, but the decision definitely took me by surprise yesterday. But it happened, and you have, at least in part, Martha Coakley to thank for it. But, this decision is real, and powerful:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. 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.

This was actually two consolidates cases, the first case being brought by ten married couples Gill v OPM – decision here, the other being the Massachusetts case (decision here). In the Mass case, the judge ruled that DOMA violated the 10th Amendment. Yup, the one about the states having power over issues not delegated to the federal government. It’s not used much, although the right wing is trying to go all anti-Obama with it these days.

Nonetheless, there are a couple of issues for Californians here. First, there are currently about 18-20 thousand same-sex married couples in the state. Give or take for folks who married in other states before moving here pre-2008 and for those relationships that have ended since then. So, how does this ruling affect us here?

Well, unfortunately, this federal court decision really doesn’t affect us at all. In theory, the ruling only covers Massachusetts for the time being. The case was brought on behalf of the state, and unless and until it moves up through the 1st Circuit and possibly to the Supreme Court, the case only has persuasive precedential value. For now, DOMA is still valid in California.

That being said, there are still many ways to challenge DOMA, and this is a big first hurdle of getting a federal judge to call it for what it is: clearly unconstitutional. We should see additional lawsuits challenging DOMA from a variety of legal fronts over the coming months and years.

Of course, that Prop 8 decision will also play a major role in all this. The end game is, of course, for universal marriage equality, but the legal doors on the way there are slowly and steadily opening.

But this flows both ways. While these twin decisions are not binding on Judge Walker in any way, they can serve as helpful points of logic for his decision. While much of this does not apply to the Prop 8 case (such as the tenth amendment claims in the Mass. case), but the equal protection logic could put down some stepping stones for Judge Walker.

I’d also recommend cruising on over to the Rachel Maddow Show’s website for an interview with Martha Coakley about the decision as well as an interview with Tobias Wolff, President Obama’s campaign advisor for LGBT issues<a


  • 1. Ķĭŗîļĺę&  |  July 9, 2010 at 7:09 am


  • 2. JonT  |  July 9, 2010 at 7:10 am

    (Gerast áskrifandi)

    BTW: When email notification of this post arrived, the Subject was '[New post] ?p=2458'. Just FYI.

  • 3. Richard A. Walter (s  |  July 9, 2010 at 7:11 am

    So, Brian, what do you think would happen if those of us in North Carolina who have gone to other states or to DC to get married, or those of us who are about to, file a lawsuit challenging Section 2? And yes, this would also be more than likely to go to the SCOTUS. And yes, some of the 18,000 couples who got married in California during the window in 2008 live here in North Carolina.

  • 4. Ķĭŗîļĺę&  |  July 9, 2010 at 7:13 am

    Happens sometimes when they forget to give the post a name…

  • 5. John  |  July 9, 2010 at 7:13 am

    I thought since MA was suing the federal government, and the federal law was found to be unconstitutional, then it should cover the entire nation. I mean, how can something violate the US Constitution in one state but be legal in another? That makes no sense, but I'm not a lawyer.

  • 6. Kathleen  |  July 9, 2010 at 7:14 am

    The end game is, of course, for universal marriage equality

    I prefer to think of the end game as universal marriage equality.

  • 7. Bob  |  July 9, 2010 at 7:24 am

    well said Kathleen universal equality, I'm glad this story made news headlines, Associated Press, more of this hopefuly will follow, so I can read it with the rest of my daily news, not just on certain websites. I call that progess

  • 8. Alan E.  |  July 9, 2010 at 7:24 am


  • 9. Ronnie  |  July 9, 2010 at 7:29 am

    I concur….<3…Ronnie

  • 10. Bolt  |  July 9, 2010 at 7:34 am

    Get busy everyone. Sue for equality under the law!

  • 11. Bob  |  July 9, 2010 at 7:41 am

    "but the equal protection logic, could put down some stepping stones for Judge Walker"

    don;t forget the man we left holding the match, the guy with more legal savvy than all of us, waiting, watching, for the perfect time to strike the match to igniite the flame, that will burn up intolerance and discrimination, so justice and equality can rise from the ashes.

    this summer is heating up, things are sizzling, my faith is in Judge Walkers ability to find the perfect window of opportunity,

  • 12. Sagesse  |  July 9, 2010 at 7:45 am

    Regarding the stay and the appeal, from AP

    "Under federal rules, there is an automatic 14-day stay of judgments in civil cases, so same-sex couples in Massachusetts won't be able to file for benefits immediately, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders. If the Justice Department appeals Tauro's rulings, the court would likely grant a stay while the appeal is pending, he said."

    So they have up to two weeks to consider their options.

  • 13. RebeccaRGB  |  July 9, 2010 at 7:56 am

    On a completely unrelated note, the latest episode of Futurama, "Proposition Infinity," which aired last night, contains a hilarious parody of the "Gathering Storm" ad.

    "If robosexual marriage is legalized, imagine the terrible things that would happen to our children. Then imagine we said those things. Because we couldn't think of any."

  • 14. Kathleen  |  July 9, 2010 at 8:03 am

    You'll have to watch an ad first, but here's the clip:–robo-s

  • 15. Straight Ally #3008  |  July 9, 2010 at 8:04 am

    Embed code fail. Thanks Kathleen!

  • 16. literalman  |  July 9, 2010 at 8:12 am

    Unfortunately, the first sentence of the quoted paragraph ("In the wake of …") is simply incorrect. It's a pity, because I of course like the end-result. But here's why it's wrong:

    As a thought experiment, consider six Kinsey-3 people (equally attracted to women and men). Suppose that three are men and three are women. They pair off, fall in love, and marry: one man-man pair, one woman-woman pair, and one woman-man pair. DOMA treats the first two pairs different from the third. But the sexual orientation of all six people are identical, so the district court's assertion that DOMA discriminates by "only orientation" simply isn't the real story in this case.

    A right-to-privacy approach, rather than the current equal-protection approach, doesn't have such problems and is the proper argument in my view.

  • 17. Ķĭŗîļĺę&  |  July 9, 2010 at 8:16 am

    Well, so there is no stay which means it's already in effect, but only for Massachusetts.
    Still, no word from the Government about appealing or not appealing…
    Everybody's so sure that there will be an appeal, however.

  • 18. Richard W. Fitch  |  July 9, 2010 at 8:17 am

    The two interviews on The Rachel Maddow Show were very enlightening. As good as the were, I would still like to have seen RM herself conducting them.

  • 19. Marius  |  July 9, 2010 at 8:17 am

    omg! Thanks!!! This was awsum=)


  • 20. Kathleen  |  July 9, 2010 at 8:21 am

    See Sagesse's post below re: stay.

  • 21. Kathleen  |  July 9, 2010 at 8:22 am

    Just curious, Richard… was there anything in either of them that you didn't already know from reading here.

  • 22. Rhonda  |  July 9, 2010 at 8:31 am

    Good Afternoon (scrubbing the sib)

  • 23. RebeccaRGB  |  July 9, 2010 at 8:36 am

    Thanks Kathleen! I tried to find a video myself but couldn't find one.

  • 24. fiona64  |  July 9, 2010 at 8:38 am



  • 25. fiona64  |  July 9, 2010 at 8:39 am

    I am not usually a fan of Futurama, but my husband got me to sit down and watch "Proposition Infinity." It was brilliant.


  • 26. Rhonda  |  July 9, 2010 at 8:40 am

    ich ach

  • 27. fiona64  |  July 9, 2010 at 8:40 am

    I don't think she's back from Afghanistan …


  • 28. Dpeck  |  July 9, 2010 at 8:47 am

    Yes! I watched the episode last night and almost sprayed Diet Pepsi outa my nose! Absolutely hilarous and right on point. And they even brought back my favorite cameo character – the Puerto Rican transsexual robot. ("one more upgrade & I gonna be more lady than what you could handle! Why you soooo stupid, stupid?!!" snap!)

  • 29. Alan E.  |  July 9, 2010 at 8:49 am

    I love that character! It's a very straight (but comfortable with his sexuality) guy that does the voice.

  • 30. Bob  |  July 9, 2010 at 8:52 am

    great point liberalman

  • 31. Sagesse  |  July 9, 2010 at 8:53 am

    Quoting Robert George, founder of NOM

    The Gay Marriage Ruling: What Now?

    This man is a law professor at Yale?

  • 32. Dpeck  |  July 9, 2010 at 8:54 am

    And of course – hedonism-bot. "And now, let us frolic, like the greeks of old! …..You know the ones I mean…. ah haa HAA!"

  • 33. Alan E.  |  July 9, 2010 at 8:56 am

    That is a good point, but only if every gay person that wants to get married is at a "Kinsey 3." I know some pretty gay people that want to get married and would never even think of crossing the line into heterosexuality. Since everyone, at least according to the Kinsey scale (which I don't totally agree with, but his commentary on sexuality in general is priceless), everyone is between a 1 and 6. The ruling accounts for everyone, not just a select group of people who, in your thought experiment, are being treated "equally."

  • 34. literalman  |  July 9, 2010 at 9:01 am

    The end-result is a happy one for everyone. But the argument to get there is partially faulty, which makes it less likely to stand on appeal.

    The determination that there is no rational basis for the unequal treatment of same-sex couples is excellent … it's just the last part that's problematic.

  • 35. Dpeck  |  July 9, 2010 at 9:10 am

    I just got an email from NOM about these recent developments. In it, they have a comment that may have set a new standard for their ability to twist logic into a parallel dimension. That Brown guy said this about people who want to legalize same sex marriage:

    I'm reminded of the time President Kennedy said, "We cannot negotiate with those who say what's mine is mine, what's yours is negotiable."

    Uh, yeah, except it's THEY who have the right to legally marry, and THEY want to be the ones who decide who else does or does not get the same rights as them. How on earth can anyone possibly think of people who are denied equal rights as people who are saying 'what's mine is mine"??? unfrickenbelievable.

  • 36. Bolt  |  July 9, 2010 at 9:11 am

    I'm not a legal expert, but after all of the hard work that has gone into the Perry v. Schwarzenegger trial, I can't imagine that Vaughn Walker would use anything from these two, new, legal precedents to support his ruling. What happened in Massachusetts is built on summary judgements. Would we really want anything that is important to be resting on a foundation that was built without the facts that have been compiled for our California case?

    Conversely, if the Massachusetts decisions are appealed, and overturned, then anything that was associated with it would collapse.


  • 37. Dpeck  |  July 9, 2010 at 9:17 am

    Literalmans' comments point out that there are multiple reasons that it is unfair to deny equal marriage rights to same sex couples. Whether it's because I am gay, or because of my gender, or because a bisexual person who chooses to marry an opposite gender partner would be treated differently under the law than someone with identical sexual orientation who wants to marry a same sex partner. Borttom line is – if it's not Equal Rights, it's unfair, regardless of the argument constructed to justify it.

  • 38. Kathleen  |  July 9, 2010 at 9:18 am

    The fact that it's a summary judgment doesn't in any way undermine its validity, nor would using it as precedent mean that another judge couldn't rely on it in the context of the facts in front of him/her in the particular case s/he's adjudicating. The reason Walker can't rely on this case is that it has no value as binding precedent. However, there's nothing stopping him from using some of the same logic that is applied here, if relevant.

  • 39. Ben  |  July 9, 2010 at 9:23 am

    Everything they've done recently has felt like a classic case of projection … they project themselves onto those they have branded « the enemy » and then attack it. Alternately, it's been a series of straw-man arguments that do not stand in a court of law, and it's pathetic that these arguments have even been put forward. Do they listen to themselves ever?

  • 40. Kathleen  |  July 9, 2010 at 9:26 am

    UPDATE: Plaintiffs' Letter bringing to the Court's Attention the two DOMA cases:

  • 41. Straight Ally #3008  |  July 9, 2010 at 9:28 am

    No, but at Princeton, so it's just as bad.

    Isn't it strange that a Princeton professor wouldn't appear in court to defend Prop 8, since the D-Is were so short on expert witnesses? It's like his case wasn't that strong, or something….

  • 42. Kathleen  |  July 9, 2010 at 9:30 am

    UPDATE: Plaintiffs join in Media request for 48 hours' notice of decision

    I'm guessing their blood pressure went up yesterday, too. :)

  • 43. Kathleen  |  July 9, 2010 at 9:32 am

    These days, whenever one of the notices appear in my inbox, I get so excited, it's hard to calm myself enough to type. Hope I don't stroke out when the decision arrives!!! :)

  • 44. Lesbians Love Boies  |  July 9, 2010 at 9:38 am

    I am with you on that note.

    I am a little surprised at the letter though. Perhaps I understand it wrong. But wouldn't the attorneys know before the media?

  • 45. Kathleen  |  July 9, 2010 at 9:39 am

    They also ask Walker to let the parties know whether he will be giving advance notice.

    That will sure be helpful!

  • 46. Bob  |  July 9, 2010 at 9:40 am

    and that is exactly why I'm happy Judge Walker is the guy left holidng the match,

    because he has the legal expertise, to navigate the mine field, and know what parts to use and what not to, and also perhaps some idea about timing,

  • 47. Kathleen  |  July 9, 2010 at 9:41 am

    Not in a case like this. It isn't a like a criminal trial where they need to be in court to get a decision. Walker can just suddenly electronically file a written decision.

    It's clear that yesterday's rumor caught them off guard, too.

  • 48. Lesbians Love Boies  |  July 9, 2010 at 9:48 am

    Good to know, and I hope he does give advance notice. I would like to make sure I reschedule meetings so I can either celebrate here with our friends… or, well, there shouldn't be an 'or'.

  • 49. Kathleen  |  July 9, 2010 at 9:49 am

    As just a side note, I find it interesting that the law in this area is so rapidly evolving that there have been 3 major cases worth bringing to Walker's attention during the time he's taking to write his decision.

    (Do I hear more heads exploding over at NOM?)

  • 50. Kathleen  |  July 9, 2010 at 9:51 am

    I've literally been losing sleep. I get bouts of insomnia, often staying awake much of the night and then sleep in the next morning. I've been so nervous about sleeping in and missing the release of the decision, that it's been disrupting my sleep! It would seem trial watching is not good for my health.

  • 51. Bob  |  July 9, 2010 at 9:56 am

    ya think Walker is making good use of his time, and the power he has as to when he makes it,

  • 52. Lesbians Love Boies  |  July 9, 2010 at 9:57 am

    I'd donate to your legal fund.

  • 53. Shun  |  July 9, 2010 at 10:00 am


    At first I was wary of the trial in MA, but am so thankful now that they did.


  • 54. Straight Ally #3008  |  July 9, 2010 at 10:02 am

    Well, my friends, I have an especially hectic stretch of days coming up, so I'm out for a while. Keep fighting the good fight – I'll leave you with a bit of history that still resonates today.


    [youtube =]

  • 55. Kathleen  |  July 9, 2010 at 10:08 am

    Thanks! Hope you don't miss the blessed event. :) btw, are you on facebook?

  • 56. Rhonda  |  July 9, 2010 at 10:16 am

    I'd join as an injured party married legally, live in red-state.

    <3 Rhonda

  • 57. Sagesse  |  July 9, 2010 at 10:26 am

    Right… all those Ivy League colleges look alike :). One of the other analysts was from Yale, sorry.

  • 58. Sagesse  |  July 9, 2010 at 10:27 am

    Ok. Now I really can't wait for Cooper's reply.

  • 59. Kathleen  |  July 9, 2010 at 10:28 am

    This might be the final thing that pushes him over the edge.

  • 60. Richard A. Walter (s  |  July 9, 2010 at 10:29 am

    Thank you, LLB. And how many here would order loaves of fresh-baked challah for that effort? I have been told that I have learned to bake a really good loaf.

  • 61. Kathleen  |  July 9, 2010 at 10:30 am

    The only reply I can imagine is a claim that Judge Tauro is a demon, doing Satan's bidding. It would be nearly as rational as any other argument he's come up with.

  • 62. Lesbians Love Boies  |  July 9, 2010 at 10:31 am

    I'd order freshly baked ANYTHING!~

  • 63. Sagesse  |  July 9, 2010 at 10:32 am

    In fact, I think Olson did it just to embarrass Cooper into coming up with something inane to say :).

  • 64. Richard A. Walter (s  |  July 9, 2010 at 10:37 am

    @ Kathleen "This might be the final thing that pushes him over the edge."

    You mean he's not there now!?!

  • 65. Kathleen  |  July 9, 2010 at 10:41 am

    @Sagesse, Olson has to do something to relieve the tension while waiting for the decision.

  • 66. Lesbians Love Boies  |  July 9, 2010 at 10:42 am

    I would have liked to have seen the question-answer part of this video.

    [youtube =]

  • 67. Sagesse  |  July 9, 2010 at 10:44 am

    Kathleen, this one's for you.

    No, the district court got it (mostly) right

  • 68. Kathleen  |  July 9, 2010 at 10:49 am

    Thanks. :) You're such a thoughtful friend.

  • 69. Rhonda  |  July 9, 2010 at 10:52 am

    I see him start to quiver, drool profusely, attempt to fly from the desktop, and hollering "but procreation, channel procreation!" Then come in the men with butterfly nets.

    <3 Rhonda

  • 70. Kathleen  |  July 9, 2010 at 10:57 am

    Right now, it only affects Massachusetts because that is the limit of the District Court's jurisdiction. But even if this is upheld on appeal all the way to the Supreme Court, the ruling only applies to those people who are considered married in their state of residence.

    The ruling, in its simplest form says two things: (1) If the federal government extends benefits to married couples, it must treat all married couples the same, it can't carve out an exception that excludes ss couples. (2) When deciding who is married for the purpose of extending federal benefits, the federal government must defer to the states' own definition of marriage.

    So, assuming this becomes the law of the country (after appeal), then if you live in a state which considers you and your ss partner married, you will get the same federal benefits any married couple in that state gets. But if your state doesn't recognize you and your partner as married, you will not qualify for federal benefits.

  • 71. Sagesse  |  July 9, 2010 at 11:07 am

    We're not having a lot of luck with embedding video today, but here's the entire Aspen session with Boies and Olson.

  • 72. Sagesse  |  July 9, 2010 at 11:08 am

    Well I tried.

  • 73. Alyson  |  July 9, 2010 at 11:43 am

    So does this apply to all married people in mass wherever married or / and all Massachusetts marriage licenses?

    So if I married in mass – am now recognized there as married by Feds. And recurve fed benefits. … Then take my mass license to Texas – do the Feds then stop recognizing it based on my state of residency not the state that issued the license?

    Ugh!!! How can they NOT see this as pure discriminatory bs. NOM made the 'the Feds made polygamy illegal argument' – but you can be a straight polygamist or a gay polygamist – it's a structure open to all – like marriage. So it's not comparable to same sex marriage. Although in there eyes – I suppose that's exactly it. Straight people choosing to marry someone of same gender.

    Anyway – thanks for clarifying the marriage license origin vs state of residency question.

  • 74. Ben  |  July 9, 2010 at 11:44 am

    Richard — I'd order challah as long as it was ready that friday evening! … Which would be difficult anywhere I'm liable to be soon, since I'm out here in the midwest, and soon to be in Canada …

  • 75. Alyson  |  July 9, 2010 at 11:48 am

    Sorry – just saw the answer to my question in the previous comments! Thanks.

  • 76. Kathleen  |  July 9, 2010 at 11:52 am

    It isn't based on where the marriage license was issued – it depends on whether the state in which you live considers you married. So as you surmise above — if you get married in Mass then move to Texas – you'd lose federal benefits because Texas doesn't recognize you as married.

    Consider, for example, NY. NY won't issue licenses to ss couples, but does recognize as valid legal ss marriages performed in other states (and Canada?). So, get married in Mass, move to NY, your fed benefits are still intact.

    I know – it's insanely discriminatory. Hopefully the insanity will become so obvious that the laws will have to fall from the sheer weight of their absurdity.

  • 77. Richard A. Walter (s  |  July 9, 2010 at 11:53 am

    There is always overnight express. And with the USPS flat rate express boxes, I would always know what to charge for shipping for any orders.

  • 78. Ray in MA  |  July 9, 2010 at 11:58 am

    Thank you Kathleen, this was hard on my brain… I think I finally got it… so many references in the ruling did not qualify "and being residence of the state" … I think I was doing some wishful thinking… (I could give you direct references)

    Now I think I understand that states will recognize that those teenagers from NH who moved in are considered "married" even tho they would not "grant" them marriage" (because of "mutual marriage recognition").

    Being involved with logic (professionally, for thirty years), it seems incomprehensible to me that the Fed government would recognize a valid marriage ONLY if you still live in the granting state!!!!

    Two forms of chaos will ensue based on that approach:

    1) People will flock to those states which allow them to be married and to get Fed bennies*.

    2) People will feel "locked into" their state on order to receive their benefits. (held hostage by their government?)

    That would be absurd!!!! Something has to give!

    The point of conflct would then be in a states limited recognition of a type of marriage…this point does not appear to be something that the constitutuion covers… or does it?

    *on the bright side, maybe we would have a good time here in MA … " the more the merrier"!!!!

  • 79. Kathleen  |  July 9, 2010 at 12:02 pm

    No problem. It's the nature of this site that I do a lot of repeating. :)

  • 80. Lesbians Love Boies  |  July 9, 2010 at 12:05 pm

    It cut off during Olson talking… is there a part 2?

  • 81. Kathleen  |  July 9, 2010 at 12:07 pm

    Just to be clear – you can move and keep your benefits as long as you move to another state that will recognize you as married. An example would be to get married in Mass, then move to NY. NY recognizes marriages performed in other states, so the federal government would continue to grant benefits. But, in general, you're correct. It leaves very little mobility w/out risking losing benies.

    And you're also correct that it's insane.

  • 82. Kathleen  |  July 9, 2010 at 12:08 pm

    Meant to say – if there's something directly from the decision that you question, feel free to ask.

  • 83. Sagesse  |  July 9, 2010 at 12:08 pm

    They were about to go to questions. Perhaps they'll post another video of the question period. They've been posting the video of the whole conference bit by bit. If I see the question period, I will post.

  • 84. Lesbians Love Boies  |  July 9, 2010 at 12:12 pm

    Thank you…

    What a great video (had to wear my lesbian loves boies t-shirt, which seems to shrink with every washing.)

    I so wish we could have seen them in the court room. Watching them speak, watching the dynamics between the two was incredible. Thanks so much for posting this.

    They never did get to mention what red wine they were drinking : )

  • 85. Ray in MA  |  July 9, 2010 at 12:12 pm

    Again, THANK YOU for this critical clarification.

  • 86. Ray in MA  |  July 9, 2010 at 12:19 pm

    P8TT: Would you consider making Kathleen a PAID participant of this site? She would be worth her weight in GOLD… giving many of us motivation to stay here and participate.

    This could be a unique marketing angle among the blogs.

  • 87. MichGuy  |  July 9, 2010 at 12:19 pm

    ———( It is saying that when the feds decide certain benefits are available to married couples strictly because they are married, the federal gov’t must defer to the particular state’s definition of marriage in deciding who is married. ) ———

    I have a littile idea. Consider If a SS Married couple lives and gets married in a state that recognizes SS marriage. And then when that SS married couple turnd 70 years old and decided to retire and collect Social Security Benifits based off of the other SS Couple Spouse's contributions, and then both SS Couples move to another Country that does not recognize SS marriage in this example I believe that the US government would still pay the SS couple their Social Security Benifits even tho the Country they live in does not allow SS marriage.

    I think the same will happen to SS married couples that move to stated tha dont allow or recognize SS marriage.

    I think that the Fed Government will align its polices to assure that all SS married couples Federal Benifits are determined by assuring that their marriage is valid in the state that theu got married in and not by their state of residence.

    After DOMA section 3 is abolished then the only restrictions that are left are simple Agency policies and regulations which can all be changed with the stroke of a pen by the head of the Federal Agency in concern. We would not need any laws changed to do that.

  • 88. Sagesse  |  July 9, 2010 at 12:20 pm

    You could try sending an email to Jeffrey Rosen at The New Republic (the interviewer) and ask. He must know :)

  • 89. MichGuy  |  July 9, 2010 at 12:26 pm

    Also I was told by a Federal Tax Lawyer that people sue the IRS (FED Government) in Federal Court all the time and when the people win their case the Federal Government does not limit the affect of that case to just be limited to the courts jurrisdiction, But instead the Federal Government usually applies the decision of that case nationwide and changes all of their TAX regulations to conform to that individual case that the government lost.

    If the government can lose a case in Federal Court in regards to TAX LAW and still apply the decision nationwide, then I can assume that the Government can apply this DOMA case decision nationwide without having to have the higher court intervene. I assume the Federal Government can simply on its own decide to stop enforcing section 3 of DOMA and cite this case as its justification from my review of this case although the Government would be doing so on its own.

  • 90. Dpeck  |  July 9, 2010 at 12:36 pm

    And if that's not possible, I would at least like to contribute to a fund to pay for Kathleen's flight to attend Felyx and Kirille's wedding once the dust settles on these rulings and our favorite gay rusky is able to join his partner here in the states.

  • 91. Lesbians Love Boies  |  July 9, 2010 at 12:39 pm

    I would happily contribute too. Actually, to both proposed ideas.

  • 92. Richard A. Walter (s  |  July 9, 2010 at 12:44 pm

    And you guys have just given me yet another reason to bake challah, cookies and anything else I can bake for fundraising. I guess I will put a new topic on the P8TT FB discussion board where folks can place their orders and when they want them to ship.

  • 93. JonT  |  July 9, 2010 at 1:05 pm

    Oh, I love Futurama – I'm so glad they brought it back. Haven't seen the ep yet, though it's recorded.

  • 94. JonT  |  July 9, 2010 at 1:08 pm

    I'm with you Kathleen :)

  • 95. Kathleen  |  July 9, 2010 at 1:08 pm

    See my reply in the other post. I would add that this question of jurisdiction is not just my opinion — the person I I asked in order to verify … that former law professor of mine… he's the head of Lambda Legal– a well respected attorney who has more than two decades of experience in the area of civil rights, first at the ACLU and now at LL. I trust his opinion.

  • 96. Kathleen  |  July 9, 2010 at 1:12 pm

    See my reply in the other post.

  • 97. Ray in MA  |  July 9, 2010 at 1:31 pm

    The great features of this blog:

    1. The P8TT Authors of topic current summaries

    2. Kathleen

    3. The lack of trolls (which Topix has an over abundance of)

  • 98. Richard A. Walter (s  |  July 9, 2010 at 1:37 pm

    Ray in MA:
    To your list, I will add this:
    The great features of this blog:
    4: The very real sense of community that crosses state and national boundary lines, and even crosses oceans.
    5: This very great extended family that I have gained from this site
    6: The safety of being able to disagree with the friends I have here on this site and still be friends with everyone
    7: The very sincere love we have for one another even when we do disagree
    8: The support and encouragement

  • 99. Lesbians Love Boies  |  July 9, 2010 at 1:40 pm

    9. smart people!

  • 100. Ronnie  |  July 9, 2010 at 1:42 pm

    10. Courageous people


  • 101. Richard A. Walter (s  |  July 9, 2010 at 2:02 pm

    11: Impassioned people
    12: Proud people
    13: Growing people
    14: Humane people

  • 102. Sagesse  |  July 9, 2010 at 2:23 pm

    Can’t wait to see whether they decide to appeal, and what their reasoning is. Usually the commentariat would be all over this, but no one seems to want to speculate what pros and cons the DOJ is considering.

  • 103. Ben  |  July 9, 2010 at 2:23 pm

    Yes, I’ve wondered … after all, we have, what, five states and DC that now provide SSM licenses? There’s grounds to kill Section 2 for, for instance, MN couples who married in IA and then returned north, where their marriage magically disappears.

  • 104. Straight Grandmother  |  July 9, 2010 at 6:54 pm

    ALL People
    Old People
    Young People

  • 105. TPAKyle  |  July 9, 2010 at 10:38 pm

    2010… the NEXT summer of love!

  • 106. Sagesse  |  July 9, 2010 at 11:12 pm

    One incident where the Yes on 8 side were doing the intimidating

  • 107. Ķĭŗîļĺę&  |  July 9, 2010 at 11:28 pm

    @Dpeck and @Lesbians Love Boies

    Whoa!  Thank you, guys, for your wonderful words of support!

    If only that was about the money!  See, Russians are not welcomed in many countries of the world.  I can't get a visa to neither of 8 countries that recognize and perform same-sex marriages (I can get into the 9th country, Argentina, without a visa, but they do not perform marriages between foreigners — at least one of the parties has to be a citizen of Argentina), and in order to get any visa, I have to prove that I have no immigration intent — for that I need to own property (cars, apartments, houses, businesses, land) [which I do not own], have a very well-paid job [which, again, I do not have], be married to a woman and have children [well, how da ya think?]…

    Basically, it means in the eyes of immigration agencies that nothing really ties me to Russia, that's why I pose a risk of becoming an unwanted illegal alien in those countries, even though all I really want to do there is to say “I do”.

    Not to mention that “all Russians are spies!” 😛

  • 108. Sagesse  |  July 9, 2010 at 11:38 pm

    List of events planned for the Day of Decision in Prop 8

    Presumably is being updated as events are announced.

  • 109. Sagesse  |  July 9, 2010 at 11:47 pm

    Excellent, comprehensive summary of reaction to the DOMA decisions from Karen Ocamb

    Reaction to the Federal DOMA Rulings

  • 110. Rhonda  |  July 10, 2010 at 12:03 am

    BOSTON — A key part of a law denying married gay couples federal benefits has been thrown out the window in Massachusetts, the first state to legalize gay marriage. The ball now lies in the White House's court, which must carefully calculate the next move by an administration that has faced accusations it has not vigorously defended the law of the land.

    President Barack Obama has said repeatedly that he would like to see the federal Defense of Marriage Act, known as DOMA, repealed. But the Justice Department has defended the constitutionality of the law, which it is required to do.

    The administration was silent Friday on whether it would appeal rulings by U.S. District Judge Joseph Tauro. Spokespeople for the White House and the Justice Department said officials are still reviewing the rulings.

    DOMA defines marriage as between a man and a woman, prevents the federal government from recognizing gay marriages and allows states to deny recognition of same-sex unions performed elsewhere. Since the law passed in 1996, many states have instituted their own bans on gay marriage, and a handful have allowed the practice.

    Tauro ruled Thursday in two separate cases that DOMA is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including health insurance and the benefits of filing joint tax returns.

    The rulings apply only to Massachusetts, where same-sex marriage has been legal since 2004. But gay marriage supporters are hoping the rulings could prompt other states to file their own challenges to DOMA and could also give momentum to a bill pending in Congress that would repeal the law.

    Many opponents and proponents expect that the Obama administration to appeal the rulings to the 1st U.S. Circuit Court of Appeals in Boston, and that the question of whether the law is unconstitutional will eventually be decided by the U.S. Supreme Court.

    Many Obama voters, particularly among gays, will push for the administration not to appeal Tauro's rulings, said former Assistant Attorney General Robert Raben. But the administration could set a dangerous precedent if it does not continue to defend the law, he said.

    "You want the Department of Justice to stop because you won a case; I understand that," said Raben, who worked at the department during the administration of President Bill Clinton, who signed DOMA into law.

    "But you could have a conservative Department of Justice that won't enforce hate crimes, that won't enforce employment nondiscrimination acts, that won't enforce the Ryan White Act, that won't enforce all kinds of new protections for gays and lesbians because the attorney general doesn't agree with them. That's not a regime you want to live in."

    DOMA was enacted when it appeared Hawaii would soon legalize same-sex marriage and opponents worried that other states would be forced to recognize such marriages. Since 2004, five states – Connecticut, Iowa, New Hampshire and Vermont, in addition to Massachusetts – and the District of Columbia have legalized gay marriage.

    Some gay marriage opponents say that despite the Justice Department's legal obligations, it has purposely mounted a weak defense of the law.

    "It's not surprising that this judge got it wrong, because a sham defense was put up by the Obama Justice Department," said Maggie Gallagher, chairman of the National Organization for Marriage.

    But state Attorney General Martha Coakley, who filed one of the legal challenges to DOMA, said the Justice Department "made their best arguments."

    "We didn't think that this was anything other than a legitimate adversarial proceeding," Coakley said.

    During court hearings, a Justice Department lawyer argued before Tauro that the federal government has the right to set eligibility requirements for federal benefits, including requiring that those benefits go only to couples in marriages between a man and a woman. Another lawyer said the federal law does not interfere with the rights of individual states to "experiment in the area of marriage."

    Under federal rules, there is an automatic 14-day stay of judgments in civil cases, so same-sex couples in Massachusetts won't be able to file for benefits immediately, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders. If the Justice Department appeals Tauro's rulings, the court would likely grant a stay while the appeal is pending, he said.

    Buseck said he knows of only one other pending legal challenge to DOMA, in Oklahoma, where two gay couples are challenging both DOMA and the state's constitutional amendment barring same-sex marriage.

    Susan Barton and Gay Phillips, one of the couples in the case, were joined in a civil union in Vermont and have marriage licenses from California and Canada. Barton said she was encouraged by the Massachusetts ruling.

    "We want to have the same benefits, rights and responsibilities of every other married couple that are citizens of the United States," Barton said.


    Associated Press writers Jesse J. Holland in Washington and Sean Murphy in Oklahoma City contributed to this report.

    Apparently, DOMA is under attack in OK, too.
    <3 Rhonda

  • 111. Marius  |  July 10, 2010 at 12:38 am

    @ ĶĭŗîļĺęΧҲΪ

    Hi, didnt think you needed a visa to go into norway, bacaus of the shengen agreement?….. Allways thought you guys were part of that too=)


  • 112. Bolt  |  July 10, 2010 at 1:14 am

    That was fascinating. Our elected leaders never mention the word bigotry. According to them, our contemporary bigots are simply expressing a point of view, and it's OK.

  • 113. Bob  |  July 10, 2010 at 3:03 am

    22nd great feature of this blog

    STRAIGHT GRANDMOTHER (she exemplifies how the times are changing for Raimbow Children, most of us throughout history, did not have the benefit of such support and LOVE from grandmothers.)

    She raises the bar for what it means to be a mother and grandmother, who has been graced with the opportunity of bearing and loving a Rainbow Child.

    In the past mothers went to all lengths, including electtro convulsive therapy, and most often emotional abandonment, in attempts at changing their childs orientation.

    STRAIGHT GRANDMOTHER, CHOOSES ACCEPTANCE AND LOVE, this will now be the standard for all mothers who bear RAINBOW CHILDREN ( listen to your heart, not your Church)

  • 114. Richard A. Walter (s  |  July 10, 2010 at 3:13 am

    Bob, you really hit the nail on the head with that one.

  • 115. Kathleen  |  July 10, 2010 at 5:30 am

    I find it hilarious that Maggie Gallagher and others are claiming it was a weak defense. I often see the specific complaint that the DoJ dropped the "procreation" related arguments from its list of justifications for the law.

    First, Judge Tauro's ruling addressed these arguments because he went through an analysis of the reasons put forth by Congress when DOMA was originally passed. An the "speciialness" of naturally procreating couples was among those examined.

    Second, the DoJ dropped these arguments because they realized the were legal STINKERS. The DoJ tried to come up with the best, most legally justified, intelligent arguments possible. The problem they faced in mounting a defense was that when applying that criteria, they're left with slim picikins.

  • 116. Sagesse  |  July 10, 2010 at 5:58 am

    Maggie and her colleagues at NOM must be apoplectic that the DOJ gave up without even bothering to defend the lame arguments that Cooper is still valiantly pushing in the Prop 8 trial.

  • 117. Bryan  |  July 10, 2010 at 11:00 am

    LOVED it. My favorite part:

    (she's talking about the many 'dangerous things' robosexual marriages will cause)

    "Now imagine we said those things, because we couldn't think of any. As a mother, these things worry me."

  • 118. Felyx  |  July 10, 2010 at 12:31 pm

    In reading the decisions it looked to me that these two cases used the Prop 8 case extensively. I am fairly certain that the DOJ defense did not mention things like procreative functions or the like. It is almost as if Tauro was using the evidence of Prop 8 to base part of his decision. I would say Prop 8 was more useful to the two MA cases than they will be to Prop 8.

    Just a thought,

  • 119. Anthony  |  July 10, 2010 at 12:53 pm

    I am not so sure all benefits can be lost due to state of residence. Some benefits are gotten only through the state but others are not granted by the state. Some benefits like immigration services and social security are federal administrated without state input. It would be a violation of rights for the federal government to withhold benefits that are incontestable by the state.

    Interesting thought here…if a man got married to a man and then went to Texas to get married to a woman…could the state of Texas deny the heterosexual marriage? If so, would the denial, based on a previous marriage, not intrinsically and automatically recognize the first marriage? If there is any man in a state that allows ssm and a woman in TX who wants to put this notion to the test let me know! Ironically, by not making SSM universal the religious nuts screaming that SSM will lead to polygamy are the ones who might be allowing it in the first place! What a bunch of Maroons!

  • 120. Kathleen  |  July 10, 2010 at 1:14 pm

    There are currently two couples in a legal Catch 22 in Texas. Texas doesn't want to grant the divorce, on the grounds that it would mean the state was recognizing the marriages. It's an insane nightmare for the people involved.

  • 121. Felyx  |  July 10, 2010 at 1:18 pm

    @ Everyone here who has been so supportive – I can't tell you how much it means to us.

    Kirill has it a bit rough over there. He had to leave school due to serious pressure and suspiciously lost a good job after making a pro-gay comment. He has no decent friends and has absolutely no gay support not found over the internet. (We are so fortunate to have internet technology, otherwise he would have died by now.) The fact is he is amazingly intelligent and unusually talented. He has never stepped outside a Russian speaking country and has managed to learn to speak near flawless English. Even Richard and BZ couldn't detect an accent!

    It tears my heart that he huddles up to his computer for 10-14 hours a day for solace. It is not unusual for the two of us to go on for 8 hours a day on skype uninterrupted. I would love to find a way to put all that techno-talent to good use. Straight Grandma and JonT had proposed ideas for a more extensive site already in a previous post. If any of you want to create a companion site to this one that is more fully developed and broader in scope, please get in touch with Kirill and let him know. I am sure we could pool our talents together and improve this young man's life. With enough serious support, some enthusiasm and a little Challah on the side, Papa Foma and I would be overjoyed to create a non-profit organization that would give Kirill a job that would thrill us all while at the same time making serious changes to the world's consciousness. Already I see an entire section dedicated to Kathleen to allow her to give full detailed explanations to any and every aspect of law for all our benefit!

    Give it some serious thought and let us know what you think. Who knows, maybe one day we will be able to invite you all to witness our marriage live through the internet. You are, after all, the family that saw us meet, grow and fall in love.

    With hope and faith (not the Mormon NOM religulous kind but the real kind),



  • 122. Kathleen  |  July 10, 2010 at 1:28 pm

    I so look forward to the day you and Kirille can be together. I feel frustrated by having nothing concrete I can offer to speed that along.

    I think you're both exceptional young men and hope to meet in person one day. In the meantime, I love that you're part of my online 'family.'


  • 123. Felyx  |  July 10, 2010 at 1:34 pm


    Nothing to offer?!! Good God woman! Just writing half of what you write here on a new website dedicated to our community would have people coming back day after day begging for more!

    Don't underestimate the power of knowledge! Felyx – A total believer (and a bit of a Fruitcake! :)

  • 124. Dpeck  |  July 10, 2010 at 1:52 pm

    Hi Felyx & Kirille,

    True, I realize that these recent rulings don't offer any immediate help for couples in a situation like yours, but they help to point out how things are really beginning to change on several fronts, including at the federal level, and that the rate of change seems to be picking up. Keep in mind that there is yet more progress in other areas, like the Uniting American Families Act (H.R. 1024). It's not a sure thing and it's still 'cooking', but when viewing the whole picture of our progress there may be real reason for hope and it may not be too far away. It may only take one or two more dominoes to fall and people in your situation may have a path to allow them to be united.

  • 125. Dpeck  |  July 10, 2010 at 1:57 pm

    Ha! I'm picturing a scene in the courtroom – the judge asks the DOJ: "What say you?" and the DOJ guy shrugs his shoulders, and says "I got nuthin'. Diddly. Bupkiss. (raspberries)."

  • 126. Richard A. Walter (s  |  July 10, 2010 at 1:58 pm


    I have to agree with Felyx. You have been such a GREAT resource here, and your analyses of the rulings and paperwork that has been filed has been such a huge help to me in understanding what has been happening. You have shared so much of yourself and your knowledge that I really don't know what it would have been like if you were not part of this family. Thank you thank you thank you.

    @ Felyx:

    I printed off your long comment to show BZ as that is a faster way for him to read it than trying to scroll down through the screen on my laptop. Your words really mean so much to us both. Thank you.

    @ Kirille:

    Once you are able to cross the Atlantic and come here, you have an open invitation to this house. You and Felyx are mispocha here. Looking forward to meeting you face to face. And one way or another we will get you here. Never underestimate the power of a group working toward the same goals.

  • 127. Richard A. Walter (s  |  July 10, 2010 at 2:04 pm

    @Dpeck: I love it! Another Jewish Rainbow Tribe member! This just keeps getting better by the day!

  • 128. Kathleen  |  July 10, 2010 at 2:06 pm

    @Dpeck – Perfect!

  • 129. Felyx  |  July 10, 2010 at 2:31 pm


    Actually this ruling is tremendous news! As soon as the ruling becomes functional and put into operation I have only to meet MA requirements for marriage to sponsor Kirill on a fiancé visa (K-1). Considering how long it takes to immigrate anyway, it would give us both enough time to make our case in advance and be ready for when it becomes feasible.

    An even greater possibility is that this case getting appealed will bring in NH. It would be even easier for me to get married through NH than MA. As it stands, the two of us must do a few technical things before we could apply regardless of legal status. After all, immigration is going to still put us through the ringer! (Although I highly doubt they would doubt the sincerity of our intentions given the circumstances! :P)

    2012 is looking mighty good right about now! What say y'all to a spectacular virtual internet wedding?! We all met on P8TT it seems only right we should all celebrate right here in Cyberspace!!!

    Felyx Qui Felix Est!


  • 130. Felyx  |  July 10, 2010 at 2:50 pm

    BTW I would add that UAFA (though I believe the language might create some serious technical legal difficulties) would be even further aided by this ruling. I would reason that immigration would be able to effectively shut down many SS requests based on the fact that their criteria would (discriminatorily) change to be even more scrutinous based on the fact that many individuals would have to prove they were going to get married within 90 days. Not possible for residents in DOMA states etc. With an appeal ruling in our favor, NH would allow for marriages since they have marriage laws that allow out of state residence to marry regardless of resident state DOMA status. Sponsor your fiancé(e), marry in NH, requirement met.

    I would say this ruling is a huge step for binationals. Besides, it is obvious that Federal DOMA's days are numbered. As I have said so many times before, these are not the only cases coming down the pike…there are multiple challenges everywhere and on every aspect of the law. No matter how many are lost, there are more coming on each issue and it only takes one! Sooner than later, the SCOTUS is going to rule in our favor and (for all you doubters) the judges are not idiots and they do not rule based on passions or popular opinions; we have no option but to prevail! It is manifest!

    I predict marriage equality within 5 years. But 12/21/2012 looks mighty damn good to me!

    Felyx (Navidad 2012!)

  • 131. Ben  |  July 10, 2010 at 4:27 pm

    I am happy to say that no one in my extended family has ever had a problem with my sexuality — it helps that my uncle John came out years ago and has been happily living with his partner Jack in California for years … there's really nothing like growing up knowing that everyone in your family supports you.

  • 132. Anthony  |  July 11, 2010 at 3:12 am


    Divorce is a state granted right not one granted at the federal level. This example doesn't really address whether federal level rights would depend on the state where one lived. But I am still wondering if polygamy is now theoretically legal because of the stupidity of DOMA!!!

    Any polyamorous couples out there want to take a shot at that?! Because I am dying to know! (Stupid religious freaks!)

  • 133. Dennis  |  August 3, 2010 at 9:31 am

    I just received the following email –

    August 3, 2010

    On August 4, 2010, the court will issue its written order containing findings of fact and conclusions of law following the court trial held in January and June of this year. The order will be e-filed in the court’s Electronic Case Filing system, and will be immediately available thereafter through ECF and PACER. Visit for details on registering for PACER. There will be no court proceeding associated with the publication of the order.

    A small number of hard copies will also be made available for public review shortly after the order is e-filed in the following locations:

    San Francisco Courthouse: Clerk’s Office (16th Floor) & Press Room (18th Floor)

    Oakland Courthouse: Clerk’s Office

    San Jose Courthouse: Clerk’s Office

    Lynn Fuller
    Media & Public Outreach Liaison
    United States District Court
    Northern District of California

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