Editorial: Redefining Marriage
Copyright by The New York Times
Published: July 9, 2010
http://www.nytimes.com/2010/07/10/opinion/10sat1.html?th&emc=th
For 14 years, as states, courts and many Americans began to change their minds on the subject, the federal government has clung to its official definition of marriage as only between a man and a woman. On Thursday, a federal judge in Massachusetts finally stood up and said there was never a rational basis for that definition. Though we are a little wary of one path Judge Joseph L. Tauro took to declare the definition unconstitutional, the outcome he reached is long overdue.
The definition is contained in the Defense of Marriage Act, signed by President Bill Clinton in 1996. At the time, there was no legal same-sex marriage in the United States, but now five states and the District of Columbia issue licenses to all couples. Because of the federal law, thousands of couples in those states cannot receive the same federal benefits as opposite-sex couples, including Social Security survivor payments and spousal burials in national military cemeteries.
There were two cases that came before Judge Tauro on this subject, allowing him to arrive at the same conclusion in two different ways. In one case, brought by Martha Coakley, the Massachusetts attorney general, the judge said the marriage act exceeded Congress’s powers and infringed on the state’s right to regulate marriage. This does not appear to be a legitimate basis for overturning the act. Many of the biggest federal social programs — including the new health care law — deal with marriages and families, as the Yale law professor Jack Balkin noted on Thursday, and states should not be given the right to supersede them.
The judge made a better argument in the other case, brought by a gay rights group, that the marriage definition violates the equal-protection provisions of the Constitution. There is no rational basis for discriminating against same-sex couples, he ruled, discrediting the reasons stated by lawmakers in 1996, including the encouragement of “responsible procreation” and traditional notions of marriage and morality. In this argument, he was helped by the Obama administration’s obligatory but half-hearted defense of the law, which since last year no longer supports Congress’s stated reasons.
Courts should generally give Congress wide deference in writing laws, but should not be afraid to examine them when challenged, to make sure they serve a legitimate purpose. The Defense of Marriage Act was passed and signed as an election-year wedge issue, and the brief debate leading up to it was full of bigoted attacks against homosexuality as “depraved” and “immoral.” One congressman said gay marriage would “devalue the love between a man and a woman.” Laws passed on this kind of basis deserve to be upended, and we hope Judge Tauro’s equal-protection opinion, which, for now, applies only to Massachusetts, is upheld on appeal.
Justice Antonin Scalia of the Supreme Court actually predicted this moment would arrive when he dissented from the court’s 2003 decision to strike down antisodomy laws. That decision left laws prohibiting same-sex marriage “on pretty shaky grounds,” he warned, since it undercut the traditional moral basis for opposing homosexuality. The Justice Department cited those words when it abandoned its defense of the law as related to procreation, which, in turn, helped lead to Thursday’s decision. The process of justice can take years, but in this case it seems to be moving in the right direction.
Judge Topples U.S. Rejection of Gay Unions
By ABBY GOODNOUGH and JOHN SCHWARTZ
Copyright by The New York Times
Published: July 8, 2010
http://www.nytimes.com/2010/07/09/us/09marriage.html?_r=1&th&emc=th
BOSTON — A federal judge in Massachusetts found Thursday that a law barring the federal government from recognizing same-sex marriage is unconstitutional, ruling that gay and lesbian couples deserve the same federal benefits as heterosexual couples.
Judge Joseph L. Tauro of United States District Court in Boston sided with the plaintiffs in two separate cases brought by the state attorney general and a gay rights group.
Although legal experts disagreed over how the rulings would fare on appeal, the judge’s decisions were nonetheless sure to further inflame the nationwide debate over same-sex marriage and gay rights.
If the rulings find their way to the Supreme Court and are upheld there, they will put same-sex marriage within the constitutional realm of protection, just as interracial marriage has been for decades. Seeking that protection is at the heart of both the Massachusetts cases and a federal case pending in California over the legality of that state’s ban on same-sex marriage.
Tracy Schmaler, a spokeswoman for the Justice Department, said federal officials were reviewing the decision and had no further comment. But lawyers for the plaintiffs said they fully expected the Obama administration to appeal. An appeal would be heard by the First Circuit, which also includes Rhode Island, Maine, New Hampshire and Puerto Rico.
In the case brought by Attorney General Martha Coakley, Judge Tauro found that the 1996 law, known as the Defense of Marriage Act, or DOMA, compels Massachusetts to discriminate against its own citizens in order to receive federal money for certain programs.
The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to a handful of federal benefits. In that case, Judge Tauro agreed that the federal law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.
Neither suit challenged a separate provision of the Defense of Marriage Act that says states do not have to recognize same-sex marriages performed in other states. But if the cases make their way to the Supreme Court and are upheld, gay and lesbian couples in states that recognize same-sex marriage will be eligible for federal benefits that are now granted only to heterosexual married couples.
“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,” Judge Tauro wrote in the case brought by Ms. Coakley. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state.”
Proponents of gay rights embraced the rulings as legal victories.
“Today the court simply affirmed that our country won’t tolerate second-class marriages,” said Mary Bonauto, civil rights project director for Gay and Lesbian Advocates and Defenders, who argued the case. “This ruling will make a real difference for countless families in Massachusetts.”
Chris Gacek, a senior fellow at the Family Research Council, a leading conservative group, said he was disappointed by the decision.
“The idea that a court can say that this definition of marriage that’s been around forever is irrational is mind-boggling,” Mr. Gacek said. “It’s a bad decision.”
Massachusetts has allowed same-sex couples to marry since 2004, and while more than 15,000 have done so, they are denied federal benefits like Social Security survivors’ payments, the right to file taxes jointly and guaranteed leave from work to care for a sick spouse.
In the Coakley case, the judge held that that federal restrictions on funding for states that recognize same-sex marriage violates the 10th Amendment, the part of the Constitution that declares that rights not explicitly granted to the federal government, or denied to the states, belong to the states.
The Obama administration’s Justice Department was in the position of defending the Defense of Marriage Act even though Barack Obama had called during the 2008 presidential campaign for repealing it. Scott Simpson, when arguing the case on behalf of the government in May, opened by acknowledging the administration’s opposition to the act, but saying he was still obliged to defend its constitutionality.
“This presidential administration disagrees with DOMA as a matter of policy,” Mr. Simpson said at the time. “But that does not affect its constitutionality.”
Some constitutional scholars said they were surprised by Judge Tauro’s opinions in the two cases.
“What an amazing set of opinions,” said Jack M. Balkin, a professor at Yale Law School. “No chance they’ll be held up on appeal.”
Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government’s longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more. The opinion in the advocacy group’s case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern.
“These two opinions are at war with themselves,” he said.
The arguments concerning the 10th Amendment and the spending clause, if upheld, would “take down a wide swath of programs — you can’t even list the number of programs that would be affected,” he said.
By citing the 10th Amendment and making what is essentially a states’ rights argument, Professor Balkin said Judge Tauro was “attempting to hoist conservatives by their own petard, by saying: ‘You like the 10th Amendment? I’ll give you the 10th Amendment! I’ll strike down DOMA!’ ”
Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law, was more supportive of the logic of the two opinions, and said they worked together to establish a broad right of marriage for same-sex couples.
“The key issue in this case, and in all litigation about marriage equality for gays and lesbians, is, Does the government have a rational basis for treating same-sex couples differently from heterosexual couples?” he said. “Here, the court says there is no rational basis for treating same-sex couples differently from heterosexual couples. Therefore, DOMA is unconstitutional, and conditioning federal funding on compliance with DOMA is unconstitutional.”
A central issue in the fight over the constitutionality of California’s same-sex marriage ban is whether laws restricting gay rights should be held to a tougher standard of review than the “rational basis” test, and so Judge Tauro’s decision takes a different path that would eliminate the need for that line of argument, Professor Chemerinsky said.
“There’s no need to get to higher scrutiny if it fails rational basis review,” he said.
Katie Zezima contributed reporting.
Basis of Ruling on Gay Unions Stirs Debate
By KIRK JOHNSON
Copyright by The New York Times
Published: July 9, 2010
http://www.nytimes.com/2010/07/10/us/politics/10tenth.html?th&emc=th
A judge’s decision on Thursday declaring that a state law allowing same-sex marriage in Massachusetts should take precedence over a federal definition of marriage has exposed the fractures and fault lines among groups working to bolster states’ rights.
The decision, by Judge Joseph L. Tauro of United States District Court in Boston, supports and echoes a central tenet of the Tea Party, 9/12 and Tenth Amendment movements, all of which argue that the authority of the states should trump Washington in most matters not explicitly assigned by the Constitution to the federal government.
Congress, the judge said, had infringed on a question that was the province of local voters and legislators.
But in using the argument to support gay marriage in Massachusetts, where the case arose, the judge created an awkward new debating point within the less-government movement about where social goals and government policy intersect, or perhaps collide.
Some people involved in the campaigns to limit Washington’s reach cheered what they said was a states’ rights victory.
“The Constitution isn’t about political ideology,” said Michael Boldin, the founder of the Tenth Amendment Center, a group based in Los Angeles. “It’s about liberty, and limiting the government to certain divisive issues — I applaud what I consider a very rare ruling from the judiciary.”
Others, like Steve V. Moon, a software programmer and founder of States-rights.org, a group founded in Utah in 2008, said the judge’s decision was both right and wrong.
“It’s unconstitutional for the federal government to pass laws superseding state authority — and the judge did affirm states’ rights in this area,” he said. “But I personally believe in the sanctity of marriage between a man and woman and support any state passing laws affirming the sanctity of marriage.”
Mr. Moon said he feared that what might look like a states’ rights victory could backfire. If judges in other states, drawing on Judge Tauro’s reasoning, start throwing out marriage definition laws that were passed by residents or legislatures, “that could be detrimental to states’ rights.”
A spokeswoman for one of the biggest Tea Party umbrella organizations, Tea Party Patriots, said that social questions were not part of their mission.
“As far as an assertion of states’ rights goes, I believe it’s a good thing,” said Shelby Blakely, executive director of The New Patriot Journal, the group’s online publication. “The Constitution does not allow federal regulation of gay marriage just as it doesn’t allow for federal regulation of health care.”
“But I don’t want to come off saying I support gay marriage,” she added.
On the other side of the debate, some advocates said they were concerned that the ruling would be misinterpreted as somehow affecting all states, and thus be seen as a reason to toughen laws banning same-sex marriage in places where it is unpopular.
“The judge’s ruling doesn’t force any state to do anything,” said Evan Wolfson, executive director of Freedom to Marry, a group based in New York, “but rather says that the federal government should not infringe on Massachusetts’s right to regulate marriage.”
“You don’t get married according to the laws in Congress, you get married according to the laws of New York or New Jersey or Connecticut,” he said. The court’s ruling, “provides a return to the way the federal government has always dealt with marriage — leaving it to the states.”
Stephen Green, a libertarian blogger who writes under the name Vodkapundit, said he believed that what united the coalition of believers in limited federal authority — opposition to what he called “Democratic overreach” in the last 18 months under President Obama — was greater than what divides it.
“Sure, we’ll have differences over DOMA and other issues,” he wrote in an e-mail exchange, referring to the Defense of Marriage Act, the federal legislation Judge Tauro ruled unconstitutional. “For now, though, we’ll hold together for as long as it takes to end this taxing, spending, regulating and mandating spree.”
Mr. Boldin, at the Tenth Amendment center, said the ruling, and how politicians in Washington and around the country react to it, would illuminate whether people were working to limit federal authority on Constitutional principal in all cases, or only for certain causes or partisan agendas.
The ruling, “leaves the proper situation of each state being able to decide its own fate,” Mr. Boldin wrote in a blog on the group’s Web site.
“If the courts were trustworthy, they’d do the same for healthcare, education and all kinds of other powers that the federal government has usurped,” he wrote. “So would politicians — who seem to champion the 10th only when it’s in their partisan best interest.”
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