Winston Churchill famously said in November 1942, when for the first time Nazi forces were pushed back in North Africa, "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."
The ruling by a federal district court in Boston finding unconstitutional the worst aspect of the federal Defense of Marriage Act (DOMA)-the section prohibiting the federal government from recognizing same-sex marriages that are recognized by the states in which the couples reside-also signals an "end of the beginning."
As 365gay.com reports, "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 a related case, "he ruled that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment."
The rulings do not force every state to validate same sex marriages, nor even for states to recognize same-sex marriages performed elsewhere. They do require that the federal government recognize marriages where they are recognized by the states in question. That's a common sense approach that allows cultural and political evolution to move forward through the states without triggering a political backlash that could result a draconian federal amendment voiding all same-sex marriages.
The district court's ruling will be appealed by the Obama administration to an appellate court, and then to the U.S. Supreme Court. It will take years. But the signs point to an eventual end of federal discrimination against same-sex couples.
More. The New York Times looks for tea-party types who talk about states' rights but don't like Judge Tauro's use of the Tenth Amendment-and can't find them. They find even tea partiers who oppose gay marriage saying "The Constitution does not allow federal regulation of gay marriage just as it doesn't allow for federal regulation of health care."
17 Comments for “DOMA: The End of the Beginning”
posted by Carl on
I can’t see the US Supreme Court overturning the ban.
How long do you think it will take before the media says this will now be a major issue for the 2010 elections (and of course 2012), the GOP seize on it to push again for a federal marriage amendment and rail at activist judges, the Democrats run scared, gays become a major target in the election, etc.?
posted by Lymis on
Personally, I’m waiting to see how the media reports this. I’m sure it will be inaccurate – that a judge has “overturned the bans on gay marriage” – which is absolutely not true. What he did was force equal federal recognition of marriages that are valid in the states that allow them.
I actually think a federal amendment that explicitly reserved the definition of marriage to each individual state would probably pass. I’m less sure they could actually pass one that defines marriage federally.
Cue the Fierce Advocate™.
posted by Jorge on
I don’t understand the decision and why it has the reach and limits it has, but then again DOMA isn’t the brightest law in the world.
posted by Carl on
“Personally, I’m waiting to see how the media reports this. I’m sure it will be inaccurate – that a judge has “overturned the bans on gay marriage” – which is absolutely not true.”
Considering how many media outlets in 2003 and 2004 had a difficult time actually realizing that the Federal Marriage Amendment likely would have banned most or all contractual arrangements between same-sex couples, not just marriage, I would have to agree with you.
“I actually think a federal amendment that explicitly reserved the definition of marriage to each individual state would probably pass. I’m less sure they could actually pass one that defines marriage federally.”
Considering how much Democrats have messed up over the past few years and will likely want to change the subject as fast as they can, I can see this passing, especially since Republicans are always happy to go along on these matters. They will especially be happy if this helps them in turnout for 2010 and 2012.
posted by Richard J. Rosendall on
The two cases dealt with Section 3 of DOMA; that is why they are limited in reach. It was part of the legal strategy, and in my view smarter than the more ambitious one by the people who hired Boies and Olson for the Perry case.
I think we deserve to lose forever if we don’t stop panicking over GOP reactions and demagoguery over marriage. We simply need to fight back with our own, more accurate, messaging. If a federal marriage amendment were going to pass, it would have passed already. Time and demographics are on our side here. As to the chances of a more limited, states-rights FMA passing: perhaps so, but our opponents won’t agree to a more limited amendment.
posted by Mark on
This won’t happen, but the Obama administration could refuse to appeal this ruling. Now that would be bold leadership!
posted by John Howard on
Congress should prohibit creating people by any method other than joining the egg of a woman and the sperm of a man. Such a law would certainly be Constitutional through the Commerce Clause, and would be necessary in order for the nation to enter into treaties on Human Cloning and other forms of genetic engineering.
Then Congress should also prohibit any states from stripping conception rights from marriages by declaring married any couples that are prohibited from procreating together using their own genes. That’d be Constitutional too, again on commerce clause but also on international treaties and equal rights basis.
The result: no same-sex marriage allowed in any state, no Constitutional Amendment necessary. Stopping unethical methods of creating people such as cloning, GE, and same-sex conception, is something that Congress is going to have to do in the next few years. It is terrible public policy to allow it to remain a possibility in people’s minds, let alone allow it to be done if someone ever decides to try.
posted by Carl on
“If a federal marriage amendment were going to pass, it would have passed already.”
A lot of the Republicans who would have opposed such an amendment, or did oppose it, are no longer in Congress. The GOP is now made up of an even more socially conservative base. Add in that this has now been struck down by a federal court, which it was not at the time the amendment was last voted on by Congress, and I can see this type of thing coming up again. At the very least it could suck up oxygen and once again allow a lot of anti-gay activists and the lazy, “liberal” media to paint misleading pictures of gays and their relationships, and take away any focus on other matters, like DADT. All for something that the Supreme Court is extremely unlikely to go along with. It just seems very pointless to me.
posted by Debrah on
Talk about pandering in NYC.
Stringer has an election coming up and he’s feelin’ his constituents.
LOL!
posted by John on
It was indeed a clever strategy but I doubt one that will be successful with this current SCOTUS, once it reaches their forum. I predict the Equal Protection argument will unfortunately fail and be overturned. As for the 10th Amendment argument, it’s certainly the most interesting and has a slight chance of success if they can peel off Kennedy’s vote. I guess we shall see in a couple of years when it finally does get to SCOTUS.
posted by John on
I think one has a better chance of being struck by lightening than the FMA actually being ratified. The GOP will undoubtedly hold a majority in one or both Houses of Congress in 2011, mainly by knocking off conservative Dems in GOP-leaning districts lost in 2006 & 08 who might support such an amendment, but not nearly enough to muster 2/3’s vote on a constitutional amendment. They’ll certainly try and stir up a lot of emotion but it will die in the Senate, where these things usually do. If by some “miracle” FMA actually gets through Congress they’ll never find 38 states to ratify it. I can see a possible 30-35 but no more.
posted by Jorge on
This won’t happen, but the Obama administration could refuse to appeal this ruling. Now that would be bold leadership!
Oh, gee, thanks for giving me another reason to despise him: he can sue on behalf of illegal aliens but he can’t fold on challenges to DOMA on behalf of gays. It’s a fairly even comparison on the merits if you’re liberal on both: there are more gays in the US than there are illegal aliens, and Arizona’s total population is also less; but arrest, possible deportation, and the other provisions are more severe. So as usual, that makes me openly question, why not us? No new revelations will come of this questioning.
posted by BobN on
It’s a fairly even comparison on the merits
It has nothing to do with merits. DOMA is a federal law, instituted by Congress for the Executive branch to execute. They can’t just “fold”. The Arizona law is a state law, one that the Justice Dept believes violates the Constitution. They HAVE TO fight it after that finding (even if they agreed with the law, which they don’t).
We had enough of a DOJ ignoring its duty under the previous administration and don’t need any other presidents ignoring laws they don’t like.
Been there, done that, paying for it for generations.
posted by Jorge on
It has nothing to do with merits. DOMA is a federal law, instituted by Congress for the Executive branch to execute. They can’t just “fold”.
Fair point, but just barely. As Andrew Jackson has said in a different context, let them enforce it.
The Arizona law is a state law, one that the Justice Dept believes violates the Constitution. They HAVE TO fight it after that finding (even if they agreed with the law, which they don’t).
Attorney General Eric Holder publicly condemned the law and questioned its constitutionality WITHOUT EVEN READING IT. This is about the politics of illegal immigration, not the merits of immigration law.
We had enough of a DOJ ignoring its duty under the previous administration and don’t need any other presidents ignoring laws they don’t like.
Oh yes, like the way the DOJ dropped a voter intimidation civil suit it had won against the New Black Panther Party for standing in front of a polling booth carrying a nightstick. According to a resigned DOJ member, there was a directive by a political appointee hired by Eric Holder not to pursue voter rights act cases where there is a white plaintiff and a black defendant.
These matters are all at the discretion of the president and the executive branch.
And it’s the discretion this president and his administration have exercised, in many different contexts, that draws my ire.
By the way, what laws are you referring to when you cite the Bush administration’s selective enforcement?
posted by BobN on
Fair point, but just barely. As Andrew Jackson has said in a different context, let them enforce it.
? Not sure what your point it. DOMA is enforced.
WITHOUT EVEN READING IT
Yeah, it’s not like there was a lot of discussion of the law before it was passed. I’m sure he just pulled his opinions out of a hat. Come on.
Oh yes, like the way the DOJ dropped a voter intimidation civil suit it had won against the New Black Panther Party
That prosecution was dropped by the BUSH ADMINISTRATION, before the Obama folks came into office.
By the way, what laws are you referring to when you cite the Bush administration’s selective enforcement?
Where have you been, under a rock? I have no desire to rehash Bush politics. If you want to plead ignorance, go ahead, but remember, you’ll be pleading ignorance.
posted by Jorge on
I am going to completely waste my time and respond to this fool.
Where have you been, under a rock?
Uh, hello? I’m a Republican? You’re a progressive? We don’t run in the same circles? Did that ever occur to you? I watch the Fox News Channel. You and the Geico Caveman are the only people on Earth who know the radio frequency for Air America. The major issues of contention during the Bush administration were around 1) foreign policy and the issues surrounding the War on Terror, 2) social issues, most notably the Federal Marriage Act, and 3) the economy. I am knowledgable about the first two. I also take a sharp interest in gay issues.
I have no desire to rehash Bush politics.
Well, that’s a shame, because I LOVE rehashing Bush politics, and as any casual reader of this site–that means you–should know, I am very good at it. Anyway, I’ll take your refusal to elaborate as a failure of the put up or shut up test.
If you want to plead ignorance, go ahead, but remember, you’ll be pleading ignorance.
Perhaps you’d have been more satisfied if I asked you which rather than what, the implication being I am questioning which of many possible grievances you are pointing out. However, that would betray an intention to shoot you down rather than listen in an open-minded way to what you have to say. I absolutely claim ignorance of why your views do not fall squarely under Bush Derangement Syndrome and would challenge you to educate me about what I would presume to be behind the scenes, underreported happenings of the Bush administration. I guarentee you, most people don’t remember anything about John Ashcroft except possibly things related to 9/11 and the War on Terror. And since I LOVE John Ashcroft, I like to learn as much about him as I can. However, if you insist on being obstinate, I’ll exercise my First Amendment right to be arrogant, oblige you, and refrain from taking you seriously.
posted by Debrah on
“You and the Geico Caveman are the only people on Earth who know the radio frequency for Air America.”
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LOL!!!
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