Federal Judge Rules DOMA Unconstitutional July 9, 2010

Federal Judge Rules DOMA Unconstitutional

by Jesse Galef –

Big news occurred last night. No, sports fans, I’m talking about major step toward marriage equality, not LeBron James going to the Miami Heat. In two cases yesterday, a U.S. judge in Boston ruled that the Defense of Marriage Act – the federal law against same-sex marriage – is unconstitutional.

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 funds for certain programs.

“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. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state.”

Wow, it’s not every day you see a states’ rights argument being used for a culturally liberal cause!

But it’s his opinion (pdf) for the second case, brought by the gay-rights group GLAD, that really caught my attention. Judge Tauro had some blunt words, going so far as to call DOMA the result of “irrational prejudice”:

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.

Damn straight. If there were some legitimate government interest involved, the courts would have had to weigh the government’s right to pursue that interest at the expense of citizens’ rights. But Judge Tauro was having none of it. He called congress out, saying that they “undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.”

There is absolutely no good secular reason to deny gays and lesbians the right to marry. Obama has been making some progress in granting equality to federal workers, but DOMA has stood in his way. Both cases will obviously be appealed up to the higher courts, and I’m curious to see what happens. I don’t know whether these lawsuits will hold up, but if they do, the door is open for more sweeping reform.

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  • Siobhan in Vermont

    Just a note here, the only thing deemed unconstitutional is that the federal government is not recognizing the same sex marriages from individual states in federal regulation and action. This does not mean that other states have to recognize the marriages from states like Vermont and Massachusetts. So it’s pretty narrow in scope, and only treats on one part of DOMA. Still, it’s a start I guess. 🙂

  • Claudia

    This will probably end up in the conservative majority Supreme Court, at which point I worry that it will die. After all, GLBT folks aren’t a coroporation. If a case could at least be made that allowing the enforcement of DOMA legitimize all sorts of other 10th ammendment infringements, it could make it through.

  • Ron in Houston

    I’m with Claudia, you have to wonder what the Roberts court will do when this one works its way up. That Court is conservative for sure but their other rulings have not been what I’d call anti-Gay.

  • Claudia

    Just a note here, the only thing deemed unconstitutional is that the federal government is not recognizing the same sex marriages from individual states in federal regulation and action. This does not mean that other states have to recognize the marriages from states like Vermont and Massachusetts.

    I wouldn’t call that narrow at all. Sure it doesn’t force other states to recognize marriages from equality loving states, but a huge portion of the benefits from marriage come at the federal level, in terms of Social Security, inheritence taxes etc. The current count is at over 1000 different federal benefits for married couples. In addition, I think states benefit on the federal level by having more married couples, so having the federal government recognize gay marriage would actually become an economic incentive for states to legalize it, as it would increase their portion of the federal pie.

  • As a citizen of Massachusetts I say Woo-Hoo!

  • Will

    You know it’s sad when a gay man can’t get his hopes up for good news like this because of all the other times the good has been reversed.

  • Cass_m

    This is how same sex marriage became part of Canadian culture. Current Conservative leader had an open vote on the question of whether this meant that churches have to marry people they don’t want to (or something like that). Of course they don’t so it just fell of the radar. The discussion went from why should “they” have this “extra” right to okay one marries who one wants, ho hum.

  • Hitch

    It’s a two-edged thing. It’s good because it’s a pro ruling. But the trouble is that the anti-movement wants to have this fight on the state level because they believe that many states are so conservative that they can defeat it there.

    Now I know a couple that is married. Not having your marriage recognized on in different states is a massive issue. By keeing it a state level thing the opposition can indeed make people’s lives miserable for a very long time.

    In any case there is still hope on the federal level on constitutional grounds, or by passing an amendment.

  • Like I said on my own blog, this is where things get interesting. I’d prefer it if there were a different backdrop of Obama replacing a conservative judge on SCOTUS instead of JPS, but alas, they are all too young.

  • keddaw

    I agree with this 100%.

    Now apply it to polygamy!

    In my view the government should stay the heck out of marriage. People should live however they want to live, have whatever legal agreements they want but there should be no government or state benefits or penalties for living alone, living with one partner or living with many.

  • Frank

    I’m not familiar with the details fo the legal reasoning, but I am concerned about the states rights part of this. If the Commonwealth of Massachusetts has the right to recognize gay marriages, doesn’t that mean that the state of Alabama has the right not to? And Alabama never will of its own free will. If this war over gay marriage is going to be won it has to be at the federal level, either through an act of congress or a supreme court ruling. So I am very concerned that in winning this battle this way we may have made it harder to win the war, not easier.

  • Vanessa

    Damn straight.

    LOL, was this on purpose?

  • Erp

    Marriage has always been a state matter. States enact the laws to determine how to marry (and how to end the marriage). The US Constitution required reciprocity among the states in recognizing marriages (and adoptions and several similar actions). The federal government did have a choice in recognizing marriages contracted outside the US (e.g., for couples applying to immigrate). DOMA did two things. First it forbade the federal government from recognizing certain marriages even if they were contracted legally in a US state between US residents. Second it allowed states not to recognize certain marriages contracted in other states. Both could be construed as unconstitutional.

    This particular decision overturns the first.

    (I’m not a lawyer so this is just my interpretation).

  • Hitch

    I indeed think that the state has no business being in private relationship contracting beyond the role of protecting rights. It should not set limits on the type of contracts allowed.

    So while the state should protect visitation and other rights under shared guardianship within a relationship contracts, it should not dictate the outlines of the contract itself.

    For example if you want a contract that shared visitation rights but not create a financial union that should be equally possible as the other way around.

    That’s why I joke to my friends that I am for civil unions and against marriage. What I mean of course that the current conception of marriage is too limiting and a more open, civil system might be better.

    In a good system the government simply has no voice in deciding who is part of the contracting relationship.

    But marriage is an emotionally very positive construct for many people, so even folks who want an open system like the word and notion.

    In any case, it’s utopia.

  • Ron in Houston

    @Frank and @Erp

    The problem is the comity clause. If state #1 allows gay marriage and state #2 doesn’t, the problem is that State #2 must still recognize those gay marriages performed in state #1.

    DOMA was passed to try to get around that legal issue.

    That’s just one way of arguing that DOMA is unconstitutional.

    Not necessarily in defense of DOMA, but I’d say that the Federal government can under the commerce clause regulate marriage.

  • Silent Service


    At the State level you can make steady if slow progress. At the Federal level all the little conservative rethuglicans can block everything and keep their status quo for a long time. It took over 100 years after the civil war to even start making progress at the Federal level for civil rights.

    We have to slowly erode the stupidity away at the State level until there are no longer enough States willing to back this insanity. Only then will the next step towards equality be taken at the Federal level. I just hope that this step doesn’t take 100 years.

  • Claudia

    In my view the government should stay the heck out of marriage. People should live however they want to live, have whatever legal agreements they want but there should be no government or state benefits or penalties for living alone, living with one partner or living with many.

    If I’m understanding you correctly you are proposing the elimination of civil marriage altogether. No joint tax statements, no automatic obtaining of custody of children upon a spouses death, no automatic hospital visitations, no spousal healthcare etc. You would eliminate the over 1000 benefits of marriage from everyone, gay or straight.

    But before you say “Now on to polygamy!”. Polygamy is not illegal. You can live with 50 different people you consider yourself married to if you so wish, as long as they are consenting adults. What you can’t get is federal or state recognition and benefits from such arrangements. I think there is a legitimate debate to be had on polyamory (though a totally separate one from same sex marriage) but if you want “government out of marriage” its a moot point, isn’t it?

  • Unfortunately I can’t imagine this surviving the Supreme Court. Not necessarily because of the make-up of the court (although that certainly factors in), but I think any case ruled unconstitutional on 10th amendment grounds is going to have a hard time. Generally, courts pretend the 10th amendment doesn’t exist and I’m not sure the Supreme Court wants to revive given all the trouble it could cause…

  • Alan E.


    “If the Commonwealth of Massachusetts has the right to recognize gay marriages, doesn’t that mean that the state of Alabama has the right not to?”

    This is true, unless that unrecognition is unconstitutional in itself. See the Loving v. Virgina Case for mroe on this.

    The major question I have right now is this: What states does this ruling apply to if it is not appealed? I know that for state laws, a district court decision would only cover the state in which the case is brought, circuit courts would cover that chunk of states, and a supreme court ruling would cover all of America. How does this apply to federal law? Any law people out there?

  • Jesse’s right to emphasize the second decision (although the first is certainly very important and welcome). Sooner or later, the federal courts will have to rule on whether there is any “rational basis” for discriminating against gay Americans, or whether sexual orientation should be treated as a immutable characteristic (umm..yeah) that is subject to an even higher standard (“legitimate state interest” if it’s compared to gender, “compelling state interest” if it’s compared to race). That’s the only way we’ll get sweeping nationwide change. That the judge found no rational basis for discrimination is heartening, but that’s a very low standard to meet and might not hold up on appeal. It doesn’t mean that the real reason for the law has to be rational, only that the legislature stated something at the time that is rational (even if it’s factually untrue). Thus all the nonsense we’ve seen about “think about the children.” The fundies had to move away from religious arguments, so they made up the childrearing argument that, while false, is at least “rational” in a legal sense.

    Still, huzzah for this judge and a good step in the right direction!

  • keddaw

    Did you know it is against the law in several states to commit adultery?

    I mentioned polygamy because the exact same arguments given by the judge apply equally well to that state of affairs.

    And yes, I am proposing the end of any benefits given by the state for two (or more) people entering into a (private?) legal agreement (i.e. marriage).

    No joint tax statements, no automatic obtaining of custody of children upon a spouses death, no automatic hospital visitations, no spousal healthcare etc.

    These are all things that are easy to set up via legal arrangements. Custody of children should not necessarily be automatic anyway, but a joint agreement between one parent and their spouse can still be in force by contract, and if they’re both biological parents then its not even necessary.

    I have no idea why people want the state to get involve in how people choose to live their lives, and it’s not even how you live, it’s simply signing the legal document that gets you benefits. Yet if you make all the legal arrangements that are involved in marriage without getting married you don’t get the benefits.

    How dare you (or I) not only tell people how they should live (freedom of speech means we can do that) but use the state to give incentives to one lifestyle over another. Imagine straight people were given a $1,000 tax rebate because they are better for a more stable society, for increasing the population and bringing up kids we’d, rightly, point out that as bigoted and discriminatory. Yet this is exactly what people argue for when they want the state involved in marriage. Hypocrisy.

  • @ Alan E. — As I recall, it only applies to the district where the decision was made. Since MA has only one federal district court, it applies to all of MA, but only MA. Other districts may use it as persuasive authority in deciding their own cases, but it doesn’t bind anywhere else.

    If it’s appealed to the federal circuit court and the good guys win, it would apply to all districts witin that circuit. (Can’t recall right now which circuit MA is in — maybe 1st?). Then other circuits could find it persuasive, but it wouldn’t be binding anywhere else.

  • Epistaxis

    “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.”

  • Does this also mean that any federal law that made the recognition of same sex marriage a legal requirement would be unconstitutional too?

    Anyway it is a good thing. I’d add that marriage is what society says it is. If you start recognising and treating gay couples as married when they claim that they are then the law will catch up eventually. There is nothing special about the sex of the partners in a marriage so treating them the same is the natural thing to do.

  • Daniel

    “Obama has been making some progress in granting equality to federal workers”

    Bullshit. Obama is a shrewd politician, and I admire him for his hard-earned political power, but he’s been office for a long time now, and he hasn’t even tried to do anything for this country.

    All he had to do is introduce an act and say”You can believe whatever you want about the morality of homosexuality, but you cannot dictate to people who they can and cannot marry.”. Something like that.

    Want to know why he hasn’t done it? Because he knows he’ll piss off the fundies. Like I said, he’s a shrewd politician, nothing more. He only cares about his political career.

    Quit making excuses for him.

    Oh, and on a lighter note, congratulations to the gays!

  • Samiimas

    Obama has been making some progress in granting equality to federal workers, but DOMA has stood in his way.

    Saying DOMA ‘stood in his way’ implies President Spineless has done anything at all to advance equality except for a few token gestures. Remember his complete and utter silence in support of marriage in Maine?

  • Ron in Houston

    @Everyday Atheist – what you say is true as to the decision’s “precedent” value; however, in this case the plaintiffs were federal employees who sued several agencies as well as the United States government itself.

    So, the case has the potential for nation wide impact.

  • CypherSD

    So, possibly naive question here (no real law background), but is it necessarily true that this will go to the supreme court? I understand the defendant in this case is the federal government, and I can see that they had to put up a defense of their own law. But how far does that go? Isn’t up to the justice department to decide to pursue this case? And don’t they answer to the president? Or is appeal just automatic?

  • Trace

    That is good news.

    I sure hope the President will call for prayer over the repeal of DOMA (a la Gulf oil spill). What a difference it would make!

    Disclaimer: I voted for the guy, oy.

  • Ron in Houston


    I think all the defendants were the US government and it’s agencies. I’m not 100% certain about whether the post office would be represented by the Justice Department.

    But to answer your question, no an appeal is not automatic. One of the defendants would have to appeal their loss. Unless one of the defendant agencies is not represented by the Justice Department, the decision to appeal would be from inside the Justice Department.

    So, now the politics comes into play. It will be interesting and well worth following.

  • VXbinaca

    Obama has been making some progress in granting equality to federal workers, but DOMA has stood in his way.

    No he has not. Don’t cover for apathy.

    Congratulations to the gays.

  • Steve

    There is another sinister implication of DOMA that’s touched upon in the ruling.

    Americans can’t sponsor foreign same-sex partners for immigration. This has forced thousands of families apart and others to leave the US altogether.
    Immigration officials get stingy when people visit too often on tourist visa and if you say you have a partner, they just think you want to immigrate and become even more hostile. There are people who live in the country for a decade and more – with kids – threatened with deportation. A handful were saved by intervention from politicians, but this really needs to be part of the immigration reforms.

  • Heidi

    I love my state. Thanks, Martha!

    It’s not a matter of whether or not this is a battle we should fight at state or federal level. It’s a matter of “ok, well if we get to decide that gay marriage is legal, then you don’t get to decide to discriminate against it.”

    The fact is that we do indeed have the right to say gay marriage is legal. That was never the question here. The question was whether or not the feds can withhold benefits for legally married Massachusetts couples. Martha said no. I say no. The judge said no.

  • @Daniel: Puh-lease.

    Not even two years in and Obama’s 15th best President: http://www.politico.com/news/stories/0710/39283.html

    After another six years, he might easily be in the top five-eight.

    But, let’s address that point again. He’s done NOTHING for this country?

    Let’s see what President Obama has done in only two years, besides fighting for LGBT rights:


    Along with preventing the Bush Great Recession from turning into the Bush Great Depression with the successful stimulus plan AND steadily restoring jobs from Bush’s massive losses per month (http://bit.ly/besLml)… and let’s not forget the fact that the rest of the world no longer HATES us- just our few enemies. It’s even safe to travel again as an American, unlike under the Bush Administration.

    ALL while facing the most vicious and concentrated right-wing propaganda attacks, fearmongering, and disinformation we’ve ever seen in American political history- as well as a “party of NO” Conservative congress blocking EVERY pro-American act.

    There’s not an iota of facts to support a stance of “Obama’s done nothing” viewpoint… but you’re welcome to have it!

  • Heidi

    Thanks for those links, Jaym. How easily people forget the horror that was the Bush administration.

  • Dan W

    It’s about damn time a judge rules against DOMA, even if it’s only declaring part of it unconstitutional. I’d really like to see the entirety of DOMA gotten rid of. In fact, I think this current situation, of same-sex marriage being decided on a state-by-state basis, is ridiculous. I’d like to see same-sex marriage legalized in Congress, so it’s legal in all parts of the U.S. Perhaps a new constitutional amendment that, among other things, would allow same-sex couples to marry. I suppose that’ll have to wait a while though- too many politicians are afraid of losing their bigoted voters if they support something like that.

  • Dan W

    Also, to those complaining about how Obama hasn’t done much for gay rights, I’d agree partially, but I feel the need to point something out. Obama, as the President, can’t make the laws. Congress makes the laws in this country (like DOMA). Obama can tell his fellow Democrats in Congress what he’d like them to do, but then it’s up to them to write laws for such things as same-sex marriage and other gay rights issues. Obama can issue executive orders, I suppose, but these tend to be pretty rare, and for the most part the laws are made by Congress.

  • Demonhype

    Seconded the thanks to Jaym. IMO, Obama could literally sit in the Oval Office and pick his nose and he’d still be a better president than Shrubya. I voted for Obama and even at the times I feel he could do more, it will take a hell of a lot more than that to make me regret it–or are people forgetting what the alternative was: an antique with a heart-problem to be succeeded by Gyno-Bush! If you really think Ms. Alaska would have done a better job and not have completely tanked this country into a third-world war-mongering hellhole by now, you are pretty damn committed to your fantasy existence and not worth talking to!

    But I still wouldn’t say he had a low bar set by Bush–to the contrary, Bush set the country on fire and Obama was left to try and put it out–all the time with his opposition on the other side of the blaze making every effort to build the flames.

    Speaking of which, this gay marriage thing is an uphill battle all the way. My dad and I were discussing this, and he said “you know what, I think they should have the rights, dont’ know if they should call it marriage but they shouldn’t be able to force churches to perform the marriages!” I pointed out that no one was suggesting that and he gives me this cocksure smirk and says “Oh yes, they are, the whole point of gay marriage is to force the churches to perform them!” I pointed out that churches already tend to refuse to marry any couple they dont’ want to–if I was engaged to a religious guy and he wanted to get married, there is a good chance the church might refuse to perform the marriage, or at least only if I convert to his religion. Churches already put conditions on their performance of marriage as it is, and no one has challenged it! I’ve spent years on pro-gay-marriage forums, listening in, and I assured him that no one has been promoting the enforcment of official church officiation at gay weddings. Quite the opposite in fact.

    He kind of looked thoughtful and stopped arguing at that point, so maybe I got through. But it shows the kind of misconceptions people get over this sort of thing and how it can affect the legislation. He’s usually a pretty well-informed intelligent guy, but on two points (gay marriage and abortion) he is a treasure trove of unsubstantiated misconceptions about the “true” motives behind the nefarious efforts of the gay marriage and pro-choice movements. He really believes that the gay-marriage proponents’ ultimate goal is to legally force the churches to perform gay weddings against their will and, as such, must be opposed mightily! And I rather suspect he is not alone! 🙁

  • Heidi

    IMO, Obama could literally sit in the Oval Office and pick his nose and he’d still be a better president than Shrubya.


    Haven’t these people noticed how McCain has voted on every single issue since the election? He voted against Al Franken’s Jamie Leigh Jones Amendment, FFS!

  • muggle

    Is it perfection? No, but again it’s a step in the right direction.

    Gay marriage nationwide is a matter of time. Just as interracial marriage once was and is thought nothing of today. Well, by most folks and those to whom it is still a big deal are s.o.l. Even if we get gay marriage one state at a time (sucking for gays who live in those states who won’t get with the times), it’s coming.

    20 or 50 years from now (no way of knowing how long) we will no longer blink an eye at gay marriage and the debate will move on to polygamy.

    This is good news when you look at the big picture. A pattern is forming.

    Plus, while it doesn’t make Georgia recognize a marriage in Boston, if a couple moves from Massachusetts to Atlanta for whatever reason, they still have the federal recognition of their marriage. If a hospital in Atlanta then denies a husband the right to see his male spouse, this will be tested in the courts too.

    Baby steps or as my daughter’s always putting it, everything is a process. It’s just hard to have patience with waiting for the process of change to happen when things aren’t as they should be.

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