Friday, July 9, 2010


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Judge declares US gay-marriage ban is unconstitutional
|Comments (462) July 8, 2010 06:55 PM

By Michael Levenson, Globe Staff

A federal district court judge in Boston today struck down the 1996 federal law that defines marriage as a union exclusively between a man and a woman.

Judge Joseph L. Tauro ruled that the federal Defense of Marriage law violates the Constitutional right of married same-sex couples to equal protection under the law and upends the federal government’s long history of allowing states to set their own marriage laws.

"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," Tauro wrote. "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state."

Tauro drew on history in his ruling, writing that the states have set their own marriage since before the American Revolution and that marriage laws were considered "such an essential element of state power" that the subject was even broached at the time of the framing of the Constitution. Tauro noted that laws barring interracial marriage were once at least as contentious as the current battle over gay marriage.

“But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states,” Tauro wrote. “That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.”

Gay rights activists cheered the ruling, saying it affirmed that same-sex couples are entitled to the same federal spousal benefits and protections as other married couples.
The Boston-based group Gay and Lesbian Advocates and Defenders had, in March 2009, brought one of two suits challenging the law, on behalf of seven married same-sex couples and three widowers from Massachusetts who contended that it violated their federal constitutional right to equal protection.

“Today the court simply affirmed that our country won’t tolerate second-class marriages,” said Mary Bonauto, a lawyer from the group who argued successfully in the 2003 Supreme Judicial Court case that first legalized same-sex marriage in Massachusetts. “This ruling will make a real difference for countless families in Massachusetts.”

Attorney General Martha Coakley, who brought the second suit challenging the law, also applauded the ruling. Her office had argued that the federal law, known as DOMA, violates the Constitution by interfering with the state’s authority to define and regulate the marital status of its residents.

Coakley’s office also contended that DOMA exceeds Congress’s authority because it requires Massachusetts to violate the constitutional rights of its residents by treating married same-sex couples differently from other married couples in order to receive federal funds for various programs.

“Today’s landmark decision is an important step toward achieving equality for all married couples in Massachusetts and assuring that all of our citizens enjoy the same rights and protections under our Constitution,” Coakley said in a statement. “It is unconstitutional for the federal government to discriminate, as it does because of DOMA’s restrictive definition of marriage. It is also unconstitutional for the federal government to decide who is married and to create a system of first- and second-class marriages.”

Opponents of same-sex marriage condemned the ruling. Kris Mineau, president of Massachusetts Family Institute called it “another blatant example of a judge playing legislator.”

“Same-sex marriage activists have tried time and time again to win public approval of their agenda, and they have failed each time,” Mineau said in a statement. “This is why their strategy is to force same-sex ‘marriage’ through judicial fiat, as they did here in Massachusetts and other states.”

He said he was “confident that an appeals court, and ultimately the Supreme Court, will uphold the government’s right to define marriage, strengthening and protecting children and families.”

The law was defended in court by the US Justice Department, even though President Obama supports DOMA’s repeal and has called the law discriminatory. In a hearing with Tauro in May, the Justice Department argued that Congress and President Clinton, who signed the law, had a legitimate interest in preserving marriage as a heterosexual institution.

Today, a Justice Department spokeswoman, Tracy Schmaler, declined to comment on Tauro’s ruling, saying in a statement, “We're reviewing the decision.”

Michael Levenson can be reached at


Stew said...

One by one, this crazy mixed up country is coming around. The votes have been so close here in Michigan every time. We all need to keep being who we are and not shying away from it. As people see that we are not monsters, they will come around.
I think sometimes the ballot is so confusing people don't know if voting yes is really a yes or is it a no?

JustinO'Shea said...

Last night on the Boston news I heard one opponent say "It was only a matter of time till they found some fanatic judge willing to steal a little lime-light. . ."

They say it is cooler today. . . yes, "they say. . ." hahahaa Guess so. . . .my body hasn't heard that yet. . .hehe. . .slow bod. . .


J said...

This decision will be difficult to defend on appeal, because the federal power to intrude into the appropriateness of marriage was certainly sustained when the feds disapproved of plural marriages in Utah. Don't get your hopes up based on a district court decision.

JustinO'Shea said...

"J". . .isn't everything GAY difficult to defend. . . .? ;-)

J said...

Yes, indeed. I really think things are progressing faster now than they ever had. The biggest baggage we face is religious fundamentalism. They stone gays in Iran and shun them in the States.

Gary Kelly said...

I agree with Stew that ballots can be so confusing people don't know if voting yes is really a yes or a no.

If marriage is all about opposite sex couples and having babies then ban condoms and all forms of contraception. No babies, no marriage.

Ya know, if God hadn't rationed brains, none of this crap would exist.

Stew said...

Imagine if everyones marraige had to be put to a vote. And that a judge could decide if they were worthy of marraige or not.
Then imagine a divorce judge telling a couple NO, you have to stay together...."Work it out you babies!"