Thursday, July 08, 2010

Federal Judge Rules Federal Gay Marriage Ban Unconstitutional

Judge Joseph Tauro in the federal district court in Massachusetts has issued a ruling that declared that the part of the 1996 federal Defense of Marriage Act (DOMA)that defines marriage as a union exclusively between a man and a woman is unconstitutional.

Tauro based his ruling on the Tenth and Fourteenth Amendments.

As he pointed out, individual states have long had their own marriage requirements and laws, and their are numerous precedents of the federal government consistently yielding to marital status laws established by the individual states.

The other basis for the ruling, the often abused Equal Protection clause in the Fourteenth Amendment is a great deal shakier in my opinion - especially since Massachusetts, along with many other states has enacted laws to give same sex couples essentially the same rights and protections married couples have, sometimes under so-called domestic partner statutes.

This will undoubtedly affect the coming State Supreme Court ruling on California's Proposition 8, which also defined marriage as between a man and a woman.

That ruling was actually expected to be announced this evening, so there's some speculation that the California Supreme Court waited to see what the Boston Court decided.

If the California court rules that Prop 8 is illegal and cites Tauro's Massachusetts ruling, there's an interesting dichotomy.

Since Prop 8 was voted into California law by a huge majority, it obviously doesn't violate state's rights as outlined in the Tenth Amendment. And since even California's Supreme Court Justices themselves admitted that California law eliminates any difference in rights between same sex partners and heterosexual married couples, it's hard to see how they would make the Equal Protection clause argument fly.

Either way, this is likely headed to the Supreme Court.

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Anonymous said...

I would say Equal Protection applies when you treat one group different than another. Since California's Supreme Court has admitted that the law eliminates the difference btwn same sex and heterosexual partners there is no reason under law to ban marriage for same sex couples. Oh and just because the majority of people approved the ban doesn't make it legal. The purpose of the Constitution is not to protect the majority it is to protect the rights of minorities. It doesn't matter what the majority wants in society if it is inviolation of the Constitution. (Justice Sandra Day O'Connor discusses this in her book, The Majesty of the Law, highly recommend btw.)

States may also not violate a group's right just because they are given the authority under the Consitution to prescribe laws for the health and welfare of the citizenry. The Civil Rights Statues have been applicable to the states for a very long time and in fact, if you want to extrapolate, you can even say that the recent application of the 2nd amendment to the states i.e. The Bill of Rights, makes federal constitutional and civil rights paramount to state law in all areas of life.

I guess that old Supremacy Clause is a real bother.
Remember federal law is the minimal that a state may apply to its citizens. A state may give a citizen more rights than prescribed under the federal law, not less. Ten to one we also see that old implied right "privacy" make its way into the debate as well as "full faith and credit."

Needless to say, it sis going to be a lgeal scholars dream. Personally I can't wait to see what happens from a Consitutional perspective and hope that civility and the belief in everyone's humanity wins out.

Freedom Fighter said...

Oh, I see your point IP. But the point the justices were making back when they originally approved same sex marriages ( before they reversed themselves!) was that California's Domestic partnership laws eliminate any legal discrimination between the two groups.

If there is in fact no difference in the way the two groups are treated aside from referring to one by the word 'marriage' and the other as a 'domestic partnership think the Equal Protection argument is a difficult one to put across.

I also would be very careful if I were you about conflating this with the civil rights struggle, something many gay activists are prone to do. I haven't seen any 'gays only' schools, restrooms or seating sections around the last time I looked.

This is not really about marriage or discrimination,but about politics and an agenda. And about creating yet another protected class with 'special rights' and another group of federally funded programs and of well-paid 'activists'.

There are some significant arguments from a societal POV for allowing civil unions and keeping marriage as it is.

It's always important to look at the big picture.