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.

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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.

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