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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.

Subhead: 
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.

Re-interpreting state power under the Constitution in this way is highly unlikely, and even supporters of Tauro's decision are wary that the 10th Amendment ruling will carry any weight in future judicial decisions.

The federal government will likely appeal the decision to the First Circuit Court in Boston, which would move it up the line towards the U.S. Supreme Court.

If it reaches the Supreme Court, and the court ultimately upholds the ruling, same-sex marriage could get the same constitutional protection as interracial marriage did in 1967.

As opponents and supporters of Tauro's decision hold their breath in anticipation of a possible federal appeal to the First Circuit Court in Boston, his decision jump-starts the social debate about same-sex marriage.

Ruling Raises Hope

The ruling raises hope among gay rights activists across the country, particularly those seeking to repeal Proposition 8, a voter-approved amendment to the California Constitution that bars same-sex couples from marrying.

Could California's Judge Vaughn Walker use Tauro's judicial roadmap to strike down Prop 8?

Tauro's decision could also potentially trigger similar cases in the other five states and the District of Columbia that legally recognize same-sex marriage.

Tauro's decision most notably calls for a re-examination of the "rational basis" Congress used to pass the law and signals a possible transformation of future judicial review of marriage laws.

In order for the government to discriminate against gay people--who aren't given special constitutional status--it has to have a "rational basis" for the discrimination, which is widely considered a pretty easy test to pass.

In passing DOMA, Congress reasoned that the law was aimed at "encouraging responsible procreation and child bearing," among other reasons.

Tauro didn't find enough rational basis in that.

"Since the enactment of DOMA, a consensus has developed among the medical, psychological and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents," he said in his ruling.

Referencing studies by the American Psychological Association, American Academy of Child and Adolescent Psychiatry, American Medical Association and the Child Welfare League, Tauro dismissed the government's fears of unstable and precarious homosexual family-building.

"Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves," Tauro wrote. "And such a classification, the Constitution will not permit."

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Alexis Sclamberg is an attorney, mediator and writer. She received her law degree from the University of Pennsylvania and focuses her practice on alternative dispute resolution.