Lesbian and Transgender

Same-Sex Boston Case Opens Up a Legal Grab Bag

Thursday, July 22, 2010

The decision by a Boston judge about the unconstitutionality of the Defense of Marriage Act is potentially monumental. Alexis Sclamberg explains why social progressives and Tea Party activists alike are tensely watching for word of an appeal.

A protestor in a rally to repeal California's Proposition 8(WOMENSENEWS)--When Judge Joseph Tauro recently ruled the Defense of Marriage Act, called DOMA, is unconstitutional he put Tea Party social conservatives in a legal bind. But his decision, if upheld, could also create problems for progressive federal legislation--such as the new health care law.

What do you do when you agree with the legal philosophy but hate the judicial outcome? For conservatives, Tauro's decision is as laudable as it is detestable.

Tauro's ruling in Boston District Court chastises federal lawmakers for usurping states' 10th Amendment power and therefore feeds the Tea Party's hunger for rulings that enhance state power--a holy grail for these activists as they seek to challenge enactment of federal health reform.

But Tauro's conclusion--that the Republican-controlled Congress that overwhelmingly passed DOMA in 1996 had no right to discriminate against same-sex couples that wish to marry and enjoy the related federal benefits--challenges a flagship cause of social conservatism.

The Tea Party, with its strong libertarian elements, is giving a scattered response.

Regional Tea Party groups are expressing various sentiments, from support for advancing state power to silence on the ruling. "On the issue [of gay marriage] itself, we have no stance, but any time a state's rights or powers are encouraged over the federal government, it is a good thing," Everett Wilkinson, state director for the Florida Tea Party Patriots, told the Washington Post.

Major Tea Party affiliates, however, such as Freedom Works and the Tea Party Nation, are declining to comment on Tauro's ruling in order to stay focused on fiscal matters and not get caught up in social debates.

Firing Back

Other groups, meanwhile, are firing back at the ruling.

"While the American people have made it unmistakably clear that they want to preserve marriage as the legal union of one man and one woman, liberals and activist judges are not content to let the people decide," Tom McClusky, senior vice president of the Washington, D.C.-based conservative Family Research Council, was quoted as saying in a Christian Post article entitled "Mass. Court's Ruling Against DOMA 'Erroneous.'"

McClusky also joined those who have accused the Obama administration of offering a watered-down defense of DOMA against the one-two legal punch brought by the Gays and Lesbian Advocates and Defenders and Massachusetts Attorney General Martha Coakley. He characterized the administration as offering a "deliberately weak legal defense of DOMA."

The Liberty Counsel, based in Orlando, Fla., which advocates for traditional American values, claimed that during the legal proceedings the administration intentionally sabotaged DOMA as it "expressly disavowed the purposes set forth by Congress in passing DOMA."

Tauro's 10th Amendment determination--if it stands--would have an enormous impact on federal legislation. It would drastically narrow the scope of federal legislative power as we know it today, curbing Washington's control over such central elements of social society such as health care and education policy.

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