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A One-Two Punch to DOMA

James Esseks,
Director, LGBTQ & HIV Project,
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July 12, 2010

You’ve probably heard by now about yesterday’s fabulous pair of decisions striking down a portion of the so-called Defense of Marriage Act (DOMA). I wanted to explain a bit about what the decisions mean and put them in context.

Over a thousand federal statutes create rights and protections that vary depending on whether a person is married or not. Before Congress passed DOMA back in 1996, the federal government simply deferred to the states’ definitions of marriage. Despite the fact that those state marriage definitions varied a decent amount (different age requirements and, for many years, race restrictions), if the state said the marriage was valid, that was good enough for the feds. Under DOMA, the feds still defer to the states’ varied definitions of marriage in every context except where they decide to allow same-sex couples the freedom to marry.

The first of yesterday’s two cases, Gill v. Office of Personnel Management brought by our friends at Gay & Lesbian Advocates & Defenders, charged that changing the rules just for marriages of gay people violated the U.S. Constitution. Judge Tauro agreed (PDF), concluding that none of the traditional justifications for marriage bans – that keeping us out of marriage is best for kids, that it protects straight marriages, that it safeguards morality, or that it saves resources – could pass muster even under the lowest level of constitutional review. And he dismissed the government’s newest rationale – that the government was entitled to maintain the status quo while the states worked through this new and divisive issue – as a sham excuse.

In the second of yesterday’s cases, Massachusetts v. U.S. Dep’t of Health and Human Services, the state sued the federal government, saying that DOMA intruded on the state’s control over marriage, which is within the state’s exclusive authority. Once again, Judge Tauro agreed, striking down the portion of DOMA that prevents the federal government from respecting our marriages.

Big picture, these cases are a strong step forward in our overall plan to move towards marriage nationwide. That plan calls for securing the freedom to marry in as many states as possible, working for federal protection for our relationships wherever possible, and ultimately seeking a federal rule that brings the freedom to marry to the entire country. These cases, if successful, will bring the strongest federal recognition of our relationships yet.

The other federal case in the picture, of course, is the Perry lawsuit brought by Ted Olson and David Boies out in California, where we’re waiting for a decision from the trial court. But there’s a big difference between the Massachusetts cases and Perry: Here, the court isn’t ordering any state to marry gay couples, because of course the plaintiffs are already married. The rulings just say that the federal government has to respect those marriages because it has no good reason for not doing so.

In Perry, on the other hand, a ruling for plaintiffs would require at least California once again to marry same-sex couples. Depending on the court’s reasoning, the Perry ruling might also require other states (either just a handful or all 50) to marry same-sex couples as well. That difference is huge, and explains why many of us are glad that the Gill and Mass AG cases are in line ahead of Perry in the march towards the U.S. Supreme Court.

Next stop for the Gill and Mass AG cases will be the federal appeals court that covers much of New England. That court usually processes appeals much faster than the federal appeals court that covers California and the West (and to which Perry will head once it’s finished in the trial court), which should mean that these cases stay well ahead of Perry.

Judge Tauro won’t have the last word in these cases, of course, but he’s given the appeals court a great roadmap by recognizing that there’s no real argument on the other side. Our thanks and congratulations to GLAD and Massachusetts Attorney General Martha Coakley for all their work on these cases.

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