Friday, July 9, 2010

The End of DOMA?

In case you were wondering, DOMA is the Defense of Marriage Act of 1996.  It is a Federal Law that was introduced to Congress by Republican House Member Bob Barr, passed by a Republican-controlled Congress and signed into law by Democratic President Bill Clinton.  So what did it do?  Well, a number of things, but the core of the law (section 3) established the Federal government's position on marriage and, more importantly, established that only marriages between a man and a woman are eligible to receive Federal marriage benefits such as Social Security, Medicare, joint filing of Federal income taxes, etc.

Thursday, two cases were decided in Boston's Federal District Court that ruled section 3 of DOMA unconstitutional: Gill v. Office of Personnel Management filed by the Gay & Lesbian Advocates and Defenders, and its companion case Commonwealth v. United States Department of Health and Human Services, filed by Massachusetts Attorney General Martha Coakley on behalf of the Commonwealth of Massachusetts.  (yes, the same Martha Coakley that tricked off the Senate race against Scott Brown - she can't win an election but apparently she can write a persuasive legal brief damnit)

In Gill, the Court found that section 3 of DOMA is unconstitutional on Equal Protection Clause grounds.  The Equal Protection Clause is a clause in the 14th Amendment of the Constitution that basically says that States cannot make laws that treat one group of people differently from another group of people.  From the NY Times:

In that case, Judge Tauro agreed that the federal law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.
In Commonwealth, the Court found that section 3 of DOMA is unconstitutional for a different reason. The Court held that section 3 of DOMA violates the 10th Amendment.  What is the 10th Amendment, you ask? (it's ok, the 9th and 10th Amendments are like the red headed stepchildren of the Bill of Rights - hardly anybody knows what the hell they are supposed to be about)  FYI, the 10th Amendment is the Amendment that Conservatives love to cite to because it stands for State's Rights; it says that any power not specifically given to the Federal Government by the Constitution belongs to the States.

For example, the Constitution specifically says the Federal Government (ie. Congress) should set up the US Post Office - so the power to set up the Post Office is reserved for the Feds only.  Thus, there's no such thing as a Texas Post Office or a New York Post Office because the Constitution, by providing a post office clause to the Feds in its text, does not allow it. As a counter example, believe it or not the Constitution does not say anything about marriage.  Therefore, the power to grant marriage licenses belongs to the States only.  There's no such thing as a Federal marriage license because the Constitution, by failing to have a marriage clause, leaves that power to the States via the 10th Amendment.  From the NY Times:

By citing the 10th Amendment and making what is essentially a states’ rights argument, Professor Balkin said Judge Tauro was “attempting to hoist conservatives by their own petard, by saying: ‘You like the 10th Amendment? I’ll give you the 10th Amendment! I’ll strike down DOMA!’ ”
Of course, for those of you playing along at home, you will note that this Court decision was made at the Federal trial court level (US District Court), which means it could be appealed to the 1st Circuit US Court of Appeals, and if appealed there it goes to the US Supreme Court (if they decide to hear it, that is).  If these cases go up the appellate ladder, it would put the issue of Same-Sex Marriage squarely before the Supreme Court to decide once and for all.  So the million dollar question is - will the United States Government, who lost in these cases on Thursday, decide to appeal them?

If you're the Obama Administration, you kind of have to appeal any case where the US Government loses just on GP.  But in this case, if you do, you will catch mad heat from the Left.  On the other hand, if you don't, you will catch mad heat from the Right who will undoubtedly say you are not doing your job.

SHOULD the Obama Administration Appeal these cases?
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