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DOMA unconstitutional
July 8, 2010 3:29 PM   Subscribe

The federal Defense of Marriage Act has been ruled unconstitutional by Judge Joseph Tauro of the District Court of Massachusetts.
posted by fireoyster (149 comments total) 16 users marked this as a favorite

 
This will not end well. Not that I don't agree with Hon. Tauro.
posted by vhsiv at 3:34 PM on July 8, 2010 [1 favorite]


Not the whole act - just Section 3.
posted by muddgirl at 3:34 PM on July 8, 2010 [2 favorites]


I am happy to read that. But. . . .

It will be declared constitutional when it gets to the Supreme Court. Just like Bush was actually the winner in 2000 once the election got into their grubby hands.
posted by Danf at 3:35 PM on July 8, 2010


Not the whole act - just Section 3.
Indeed, but this is still encouraging news.
posted by xedrik at 3:35 PM on July 8, 2010


came to say the same as muddgirl, only section 3 which says marriage is between a man and a woman only
posted by liza at 3:35 PM on July 8, 2010


This was the local report about the specifics that I read earlier today. Looks like this will be heading to the Supreme Court and it's a really targeted offense designed to pretty much eradicate the marriage=man+woman thing. I wish them luck.
posted by jessamyn at 3:39 PM on July 8, 2010 [1 favorite]


By the Power of Gayskull... I now pronounce you husband and husband.
posted by greekphilosophy at 3:40 PM on July 8, 2010 [10 favorites]


One step forward, one step back.
posted by jedicus at 3:41 PM on July 8, 2010


More: a short summary from After Elton, and a longer write-up from Firedoglake, including notes on broader implications.
posted by filthy light thief at 3:43 PM on July 8, 2010


Indeed, but this is still encouraging news.

Indeed - just trying to be precise. Inside I am doing the happy Snoopy dance.
posted by muddgirl at 3:45 PM on July 8, 2010


I believe this will first be appealed to the Federal Circuit court and then to the Supreme court. Also, here is the full text of DOMA, full text of the rulings (1, 2) and a roundup of reactions (from Joe.my.god).
posted by Craig at 3:47 PM on July 8, 2010


huzzah!
posted by angrycat at 3:48 PM on July 8, 2010


Don't worry folks, there's a 5-4 majority on the Supreme Court that will ensure gay marriage is illegal until there is a constitutional amendment to support it (roughly 2100 AD or so). Now, if we could just connect gay rights to corporate rights or anti-terrorism somehow...
posted by Avenger at 3:49 PM on July 8, 2010 [1 favorite]


$10 says fox immediately starts running this story back to back with speculation about the sexual orientation "confirmation" of Kagan.
posted by Muddler at 3:51 PM on July 8, 2010 [2 favorites]


For those of you who don't want to read the pdf, here's what seems like the most important/most eloquent part. Mods, if this is too intrusive, feel free to delete

The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits. For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization, as well as to obtain conditional permanent residency for those spouses pending naturalization. Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty. But because DOMA dictates that the word “spouse”, as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples.

It strains credulity to suggest that Congress might have created such a sweeping status- based enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve, this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.

In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this court finds that DOMA lacks a rational basis to support it.

This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.” Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. AN ORDER HAS ISSUED.

/s/ Joseph L. Tauro
United States District Judge
posted by Salvor Hardin at 3:51 PM on July 8, 2010 [39 favorites]


Whatever happened to that case in California? Is the judge still deliberating?
posted by Faint of Butt at 3:54 PM on July 8, 2010


"Activist judge" cry from the right in 3...2...
posted by mark242 at 3:55 PM on July 8, 2010 [3 favorites]


Now, if we could just connect gay rights to [...] anti-terrorism somehow

DADT pretty clearly aligns gay rights with fighting terrorism, yet its still law. For the right, hating on the gays still trumps having the best army.
posted by jpdoane at 3:55 PM on July 8, 2010 [1 favorite]



I'm certain that the "State's rights" types will wholeheartedly embrace this ruling.

Because they care about their ideological consistencies and not about just being douchebags, right ?

Yeah, I'm sure Glenn Beck is tripping over himself to praise this decision.
posted by Pogo_Fuzzybutt at 3:56 PM on July 8, 2010 [8 favorites]


It will be declared constitutional when it gets to the Supreme Court.

Actually, a more significant passage is this one:

"The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid."

If the SCOTUS wants to overturn this, they can (and likely might) but they'll have to do so in a stunning attack on the current cause celebre of the radical right - Tenth Amendment rights.
posted by XQUZYPHYR at 4:01 PM on July 8, 2010 [21 favorites]


My heterosexual maarrriageeeeee iit'sss meeeelllltttttiiinggggggggggggggggg
posted by Salvor Hardin at 4:01 PM on July 8, 2010 [30 favorites]


Whatever happened to that case in California? Is the judge still deliberating?

Yes. No opinion has been issued yet in that trial.
posted by hippybear at 4:02 PM on July 8, 2010


Fox News.com has a really short write-up, though they end with the following statement:
The Justice Department argued the federal government has the right to set eligibility requirements for federal benefits -- including requiring that those benefits only go to couples in marriages between a man and a woman.
And then there are the comments ... "Read the book...between a Man and a Woman. This is why I will not get married. The government has ruined the institution of marriage." Which book might that be? Oooh right, The Bible. Separation of Church and who now? Yes, I realize my snarky comments will do nothing to bridge the gap and create good-will for all, but sometimes it makes the sadness of this all a little less sad for a moment.
posted by filthy light thief at 4:02 PM on July 8, 2010 [1 favorite]


Now, if we could just connect gay rights to corporate rights or anti-terrorism somehow...

Well, there's always this.
Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
Say what you will about the institution of marriage itself, the conservative case for it is perfectly in line with Goldwater conservatism anyway. It's only the religious activists that need to be contended with, which is no small task, to be sure. Which ties in well with fighting terrorism: what a positive and celebratory way of thumbing your nose at those who "hate our freedoms" then to take such a step.
posted by Marisa Stole the Precious Thing at 4:02 PM on July 8, 2010 [10 favorites]


DADT pretty clearly aligns gay rights with fighting terrorism, yet its still law. For the right, hating on the gays still trumps having the best army.

It wouldn't be the best army, it'd be the Big Gay Army, and then our Brave Men (and women) might be uncomfortable in hostile situations. Or something.
posted by filthy light thief at 4:04 PM on July 8, 2010


If the SCOTUS wants to overturn this, they can (and likely might) but they'll have to do so in a stunning attack on the current cause celebre of the radical right - Tenth Amendment rights.

Exactly. The only way the SC can affirm the DOMA is by narrowly construing it to be a document that defines "marriage" as it applies to employees of the Federal Government, and NOT as a definition for citizens.

If the Supreme Court doesn't uphold this ruling, I'll eat my hat.
posted by gjc at 4:09 PM on July 8, 2010


The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state

It's like someone tied one of those really specialised fly fishing lures. Except that instead of Pacific Salmon, it's there to hook Scalia.
posted by atrazine at 4:21 PM on July 8, 2010 [44 favorites]


Indeed, MSTPT. In the UK the Tories have realised this. David Cameron had "promoting families, including gay families" as part of his campaign platform.
posted by atrazine at 4:23 PM on July 8, 2010 [3 favorites]


I like this particular section:

That is to say, the constitution will not tolerate government reliance “on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”101 As such, a law “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.”102

I read this as "bad congress, 'we don't like gays' is not a good enough reason to enact a law prohibiting the privileges of marriage from being applied to homosexual relationships." it makes me happy to see such a thing in print.
posted by Severian at 4:25 PM on July 8, 2010


I admit being nervous about this. The right rarely champions federalism when it doesn't suit them, and we do seem to have a conservative activist Supreme Court. Now might not be the most opportune time to put our civil rights up to judicial review.
posted by Blazecock Pileon at 4:27 PM on July 8, 2010


Say what you will about the institution of marriage itself, the conservative case for it is perfectly in line with Goldwater conservatism anyway.

I've seen Goldwater called a "commie" on several righty websites in the past few years. I'm not kidding.
posted by Avenger at 4:28 PM on July 8, 2010


Oh my. Well, here's hoping this stands.
posted by Greg Nog at 4:28 PM on July 8, 2010 [1 favorite]


The Act is so plainly unconstitutional that it's a fucking joke.
posted by exogenous at 4:35 PM on July 8, 2010 [3 favorites]


Reading that decision is like being smashed in the face with a brick made of common sense.

[T]his court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex. And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.

posted by furiousxgeorge at 4:35 PM on July 8, 2010 [7 favorites]


Great! And it's just in time to hand the religious special interests a nice fat wedge issue to use during the 2010 elections.
posted by deadmessenger at 4:37 PM on July 8, 2010


If the SCOTUS wants to overturn this, they can (and likely might) but they'll have to do so in a stunning attack on the current cause celebre of the radical right - Tenth Amendment rights.

I think you underestimate the number of ways the Supremes can overturn a ruling.
posted by phearlez at 4:39 PM on July 8, 2010


The Tenth Amendment as perceived by the courts and the Tenth Amendment fantasies of right-wing extremists don't overlap except in localities where a space-time wormhole opens into Bizarro World.

The extremist position most often showed up in attempts by property rights groups in the 1980s and 1990s to overturn the Clean Water Act and the Endangered Species Act. The current "states rights" mumbo jumbo is mostly an echo of that long-squashed stupidity. But it probably plays well among Ron and Rand Paul supporters.

So don't expect the Teabaggers (with their hurfdurf States Rights tantrums) to have anything to contribute to this discussion other than sound and fury. I'm sure they will feel cheated at the end. Come to think of it, that's probably the best reason to engage them in a Tenth Amendment discussion on this issue.
posted by warbaby at 4:39 PM on July 8, 2010


I admit being nervous about this. The right rarely champions federalism when it doesn't suit them, and we do seem to have a conservative activist Supreme Court. Now might not be the most opportune time to put our civil rights up to judicial review.

Federalism is everyone's bitch. Neither side takes a consistent position with it - the left and the right favor it when it suits them, and each side likes to point out the inconsistencies of the other side.

But the right time to push for this is now. You'll always find people who recommend waiting, waiting, until the "opportune" time. Now is always the opportune time. Later is always the wrong time. I'm willing to put my gay marriage on the line (married June 1st to my partner of over 20 years, here in DC, he's a federal employee.) I want my rights now. Not later. You only get your rights when you demand them now - if you get them at all.
posted by me & my monkey at 4:49 PM on July 8, 2010 [20 favorites]


Salvor Hardin: "/s/ Joseph L. Tauro
United States District Judge
"

I wonder if this guy was grinning from ear to ear when he signed that. I know I would have.
posted by ArgentCorvid at 4:49 PM on July 8, 2010


Not that I don't agree with Hon. Tauro.

That Han Solo's brother the lawyer, right?
posted by jonmc at 4:54 PM on July 8, 2010 [5 favorites]


I wish we could bill the Republican party for the wasteful spending that overturning their hateful bullshit entails.
posted by clockzero at 4:56 PM on July 8, 2010 [4 favorites]


I smell nullification crisis! Just in time for the sesquicentennial of the Civil War,too. I love it when history repeats itself.
posted by pentagoet at 4:57 PM on July 8, 2010


The right rarely champions federalism when it doesn't suit them, and we do seem to have a conservative activist Supreme Court.

you mean the court that through out all the sodomy laws?
posted by empath at 4:57 PM on July 8, 2010 [1 favorite]


Let us celebrate with lesbian porn.
posted by furiousxgeorge at 5:00 PM on July 8, 2010 [13 favorites]


Here's Barry Goldwater on the modern right wing:

"Everyone knows that gays have served honorably in the military since at least the time of Julius Caesar." He also said, "You don't have to be straight to be in the military; you just have to be able to shoot straight." A few years before his death he went so far as to address the right wing, "Do not associate my name with anything you do. You are extremists, and you've hurt the Republican party much more than the Democrats have."
posted by atrazine at 5:03 PM on July 8, 2010 [8 favorites]


If the SCOTUS wants to overturn this, they can (and likely might) but they'll have to do so in a stunning attack on the current cause celebre of the radical right - Tenth Amendment rights.

Anyone know where I can buy popcorn futures?
posted by one more dead town's last parade at 5:06 PM on July 8, 2010 [2 favorites]


I'm willing to put my gay marriage on the line

Respectfully, I like my domestic partnership and would not like to see our rights evaporate. The margins for defending our rights in Washington were slim enough last time. I really hope we pull through again, though.

you mean the court that through out all the sodomy laws?

That was a different court, wasn't it?
posted by Blazecock Pileon at 5:08 PM on July 8, 2010


Here's the thing to remember-- this case was designed not to put anyone's gay marriage on the line. It doesn't construe whether it is constitutional for any state (such as Mass.) to allow their citizens to marry others of the same sex. It is very narrowly limited to DOMA and its extension of federal benefits. Even if SCOTUS overturns this ruling those legally gay married in Mass. will still be married.

Thus:

It's like someone tied one of those really specialised fly fishing lures. Except that instead of Pacific Salmon, it's there to hook Scalia.

is exactly accurate. This is a very different challenge than the California case.
posted by miss tea at 5:08 PM on July 8, 2010 [2 favorites]


I was the jury foreman in a federal trial in Judge Joseph Tauro's courtroom a number of years ago. I admire the man for the way he managed the trial. An impressive judge!
posted by ericb at 5:09 PM on July 8, 2010 [1 favorite]


clockzero: I wish we could bill the Republican party for the wasteful spending that overturning their hateful bullshit entails.
DOMA was passed by Congress by a vote of 85-14 in the Senate (including 32 Democrats) and a vote of 342-67 in the House of Representatives (including 118 Democrats) and was signed into law by President Bill Clinton (D) on September 21, 1996. via
posted by Doofus Magoo at 5:09 PM on July 8, 2010 [16 favorites]


Fox News.com has a really short write-up, though they end with the following statement:

That's an AP story, not a Fox News story.
posted by Jahaza at 5:11 PM on July 8, 2010


Why The Tea Partiers Should Oppose DOMA
posted by homunculus at 5:19 PM on July 8, 2010 [1 favorite]


That's an AP story, not a Fox News story.

Can't it be both? It's by the AP, and Fox News is running it.
posted by Jaltcoh at 5:20 PM on July 8, 2010


Good point, Doofus Magoo.
posted by clockzero at 5:31 PM on July 8, 2010


On one hand this has the possibility of making my life a lot less annoying on the other hand I can't imagine any move in modern politics making my life less annoying.
posted by The Whelk at 5:37 PM on July 8, 2010


AP could have picked up the Fox story for distribution as well.
posted by gjc at 5:37 PM on July 8, 2010


Wow, this is about a harsh a smackdown of DOMA as you can get at the trial level. First, this case was decided on summary judgment, which is when the judge decides the case before the trial even starts. In order to find for the plaintiff (those opposing DOMA) in this case, the judge had to find that there is no "genuine issue of fact and that the moving party (the plaintiffs) are entitled to judgment as a matter of law." What this really means is that summary judgment will only be granted where the judge thinks there is no way the defendants can possibly win the case.

Second, and more shocking, is that the judge struck down the law even though he applied the rational basis test. When challenging a law as violating the Equal Protection Clause, judges generally apply one of two tests (there are more than two, but they are not as common): strict scrutiny and rational basis. Without going into too much legalese, strict scrutiny tests are applied when the law relates to a "protected class" such as race or national origin. Laws that discriminate on these bases are rarely upheld. On the other hand, laws that discriminate on virtually any other ground (anything from height to education level to criminal history) must be analyzed under the rational basis test. Under this test, if the law can be shown to have any rational reason for existing (and that reason doesn't even have to be the reason the law was enacted), then the law is upheld. Simply put, laws challenged under the rational basis test are almost always upheld.

Currently, sexual orientation is not a protected class in federal law. As such, laws like DOMA that discriminate based on orientation are analyzed under the rational basis test. However, this judge has ruled (correctly IMO) that there is no possible rational reason to discriminate against homosexual couples. In fact, the judge has ruled that the only reason the law exists is because of animus against homosexuality. Now, this might be uncontroversial here at MetaFilter, but this is unprecedented for a federal judge.

If this case is appealed, then it would go to the 1st Circuit, which is moderate by federal standards (but not as liberal as the 9th).
posted by thewittyname at 5:38 PM on July 8, 2010 [26 favorites]


In other news:

Presbyterian leaders voted Thursday to allow non-celibate gays in committed relationships to serve as clergy, approving the first of two policy changes that could make their church one of the most gay-friendly major Christian denominations in the U.S.

But the vote isn't a final stamp of approval for the Presbyterian Church (U.S.A.) or its more than 2 million members.

Delegates voted during the church's general assembly in Minneapolis, with 53 percent approving the more liberal policy on gay clergy. A separate vote is expected later Thursday on whether to change the church's definition of marriage from between "a man and a woman" to between "two people."

posted by Muddler at 5:40 PM on July 8, 2010 [2 favorites]


A couple of points:

1) This was a summary judgment. From the decision:
In granting a summary judgment motion, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” -Even on summary judgment, they won.

2) They struck this down on rational-basis claims. That's good, it means that the appellate courts can't just claim that homosexuals are not a protected class, they actually have to overturn this specific ruling on rational basis grounds.

3) Page 4 of the decision:
With regard to Section 3 of DOMA, the House Report explained that the statute codifies the definition of marriage set forth in “the standard law dictionary,” for purposes of federal law.
- this cites the 6th edition of Black's Law Dictionary for a definition of marriage (the standard reference, as far as I know)

I have the 9th edition on my desk:
marriage, n. (13c) 1. The legal union of a couple as spouses. • The essentials of a valid marriage are (1) parties legally capable of contracting to marry, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law. Marriage has important consequences in many areas of law, such as torts, criminal law, evidence, debtor-creditor relations, property, and contracts. -- Also termed matrimony conjugal union. [Cases: Marriage -> 1.12.]
"It has frequently been said by courts, and even by Legislatures, that marriage is a 'civil contract.' But to conclude from these statements that marriage ... has all, or even many, of the incidents of an ordinary private contract, would be a grave error. In fact, these statements to the effect that marriage is a 'civil contract' will be found, upon examination, to have been used only for the purpose of expressing the idea that marriage, in the American states, is a civil, and not a religious institution, or that ... in some states mutual consent alone without formal celebration is sufficient to constitute a valid marriage known as a common law marriage, or that, as is true in all states, the mutual consent of the parties is essential, even in the case of a ceremonial marriage." Joseph W. Madden, Handbook fo the Law of Persons and Domestic Relations § 1-3, at 2-3 (1931).
Go ahead. Cite the dictionary. I dare you.

I'm aware that there are 3 points when I said that there would only be a couple. Look at what allowing homosexuals to marry hath wrought!

On preview, thewittyname has reduced me to one point. And it's just me reading the damn dictionary. Thanks a lot. (really, thanks, I would lay lots of money that you know more american law than me)
posted by Lemurrhea at 5:46 PM on July 8, 2010 [6 favorites]


DOMA was passed by Congress by a vote of 85-14 in the Senate (including 32 Democrats) and a vote of 342-67 in the House of Representatives (including 118 Democrats) and was signed into law by President Bill Clinton (D) on September 21, 1996.

Unless my math is wrong, you're saying it would've passed even if every single Dem voted against it? While it's great to stick to your guns and vote the way you want every single time, sometimes you hedge your bets against weapons that would otherwise be used against you, by casting a meaningless vote. Just my opinion.
posted by inigo2 at 5:52 PM on July 8, 2010


"I admit being nervous about this. The right rarely champions federalism when it doesn't suit them, and we do seem to have a conservative activist Supreme Court. Now might not be the most opportune time to put our civil rights up to judicial review."

Ultimately, the federal courts are the way this is going to happen—otherwise, enjoy being married in all states except Alabama, Mississippi, etc. We had to send federal troops in just to let black kids drink at the same water fountains.

But, Dred Scott aside, judicial reciew is supposed to protect civil liberties. A Supreme Court ruling in favor of same-sex marriage is exactly the best solution.
posted by klangklangston at 6:00 PM on July 8, 2010 [1 favorite]


Great! And it's just in time to hand the religious special interests a nice fat wedge issue to use during the 2010 elections.

The time to use power is when you have it.
posted by NortonDC at 6:21 PM on July 8, 2010 [5 favorites]


Or, as my dad would put it, "If you can't kick 'em when they're down, when can you?"
posted by NortonDC at 6:22 PM on July 8, 2010 [4 favorites]


I believe this will first be appealed to the Federal Circuit court and then to the Supreme court

Just to clarify: this will go to the First Circuit Court of Appeals. The Federal Circuit is for patents and federal tort claims.
posted by valkyryn at 6:25 PM on July 8, 2010


It's like someone tied one of those really specialised fly fishing lures. Except that instead of Pacific Salmon, it's there to hook Scalia.

It gets better. He also quotes a section of Scalia's dissent from Lawrence v. Texas, in which Scalia writes:

"what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."
posted by rollbiz at 6:30 PM on July 8, 2010 [14 favorites]


Just off the top of my head, it strikes me that section 2 is much more vulnerable from a COnstitutional standpoint, since it violates the full faith and credit clause, Article 4 Section 1: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State," since it says that states need not recognize any other state's same-sex marriage.
posted by Jimmy Havok at 6:40 PM on July 8, 2010


This is why I will not get married. The government has ruined the institution of marriage.

Loony-toon there took the words right out of my mouth. My heterosexual partner and I decided 12 years ago that we wouldn't marry until gay marriage was legal. We've been waffling lately, to the point where we plan to get married in a gay marriage state (almost managed to do it in CA, but that got squashed before we could work out the vacation time). The government has ruined the institution of marriage by making it an instrument of oppression rather than an instrument of love.
posted by Jimmy Havok at 6:50 PM on July 8, 2010 [2 favorites]


I love all of you lawyers and legal types who read the decision and then kindly provide translations, interpretations, history, and snark for those of us who find legalese in large quantities hard to parse. Thank you so much.
posted by rtha at 7:20 PM on July 8, 2010 [26 favorites]


Nobody has mentioned whether the provisions making divorce illegal were affected or not.

(There are provisions making divorce illegal, aren't there? Because otherwise, I can't see how this act is supposed to be defending marriage)
posted by UbuRoivas at 7:35 PM on July 8, 2010 [4 favorites]


Some fun facts about Judge Tauro from Wikipedia: posted by Xalf at 7:46 PM on July 8, 2010 [1 favorite]


OK, forget about that third one. There is at least one other judge, Harry Pregerson, who was appointed to a district court before Tauro and later elevated to an circuit court and is still in active service. There may be one or two others. Wikipedia's presentation makes it hard to find them.
posted by Xalf at 8:02 PM on July 8, 2010


It's like someone tied one of those really specialised fly fishing lures. Except that instead of Pacific Salmon, it's there to hook Scalia.

If that's their plan, that's a terrible plan. Scalia will never rule in favor of gay marriage. Have you read his dissent in Lawrence? Section IV, in particular, is just deranged, screaming that "The majority of citizens, as represented by their legislators, find it gross" is enough of a rational basis to survive any rational basis test. He essentially espouses a view, one that I've seen repeated all too frequently, that there is no such thing as a fundamental right that takes precedence over the moral disapproval of fifty percent plus one of the populace.

The person they should be courting is Kennedy. Scalia will vote down gay marriage no matter the argument.
posted by kafziel at 8:12 PM on July 8, 2010 [4 favorites]


I'm hopeful.
posted by agregoli at 8:25 PM on July 8, 2010


"Now might not be the most opportune time to put our civil rights up to judicial review."

Where'd interracial marriage come from in 1967?
Where'd Lawrence v Texass come from in 2003?

IANAL but the odds could be worse.
posted by Twang at 9:00 PM on July 8, 2010 [1 favorite]


You'll always find people who recommend waiting, waiting, until the "opportune" time. Now is always the opportune time. Later is always the wrong time.

And if you won't listen to some dude on the internet, I think I know another dude who made the same point.
posted by Pope Guilty at 9:51 PM on July 8, 2010 [1 favorite]


IANAL but the odds could be worse.

Very true, here's hoping for the best.
posted by Blazecock Pileon at 10:49 PM on July 8, 2010


"Scalia will vote down gay marriage no matter the argument."

He musta had one awkward night in college or something.
posted by klangklangston at 10:49 PM on July 8, 2010 [4 favorites]


John Turturro is AWESOME!
posted by dirigibleman at 11:21 PM on July 8, 2010


Metafilter: AN ORDER HAS ISSUED.

Thanks for posting the insightful bit, Salvor Hardin.
posted by armage at 11:27 PM on July 8, 2010


I second rtha in thanking those of you who distilled this down for us laypeople.

And, I'm once again very proud of my home state. This almost makes up for Scott Brown.
posted by emd3737 at 12:01 AM on July 9, 2010


I was going to say how libertarians and people who want to "stick it to the terrorists" should be in favor of gay marriage. Instead, I'm going to make a snarky comment on the Republican Legislation Naming Convention

Clear Skies Act - raises caps on toxin emissions and reduces money for EPA enforcement
Healthy Forests Initiative - opens previously protected areas to expanded logging
Defense of Marriage Act - limits access to marriage on the basis of sexual orientation

Also, this left me wondering what happens if your spouse gets a sex change. Post-DOMA, are you no longer married? Before this law, what happened? And what does changing your gender mean, from a legal perspective. If you dress and act as a woman, can you be legally classified as one? Do we even have legal gender classifications?

What would happen if I tried to mark "F" when I renewed my driver's license?
posted by heathkit at 1:26 AM on July 9, 2010 [3 favorites]


What would happen if I tried to mark "F" when I renewed my driver's license?

You would gain the right to ask directions whenever you want?
posted by Ella Fynoe at 4:53 AM on July 9, 2010 [3 favorites]


If that's their plan, that's a terrible plan. Scalia will never rule in favor of gay marriage.

I don't think the plan, such as it was, was for him to actually rule in favor of gay marriage. Just to try to link ruling against it with eating a nice, big shit sandwich.
posted by ROU_Xenophobe at 5:38 AM on July 9, 2010 [1 favorite]


Careful what you wish for, people. I'd be willing to bet that close to 100% of the people commenting in favor of this decision are also in favor of this year's health care legislation.

Well it's entirely possible that Mass. v. HHS could be use to attack a huge variety of federal programs. And not just the health care bill. Under the analysis in Mass v. HHS, even Medicare is suspect:
The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well.
Balkin isn't kidding around here. The analysis Tauro uses is essentially that if it interferes with family formation, it's irrational, and thus impermissible. Just about every single government social program does this. Rather than fighting the "good fight" against discrimination, Tauro is undermining the entirety of the post-New Deal administrative state.

This isn't a "victory" anyone who likes social safety nets should be all that excited about, and it's almost guaranteed that both of these cases will be overturned by the First Circuit, which unlike Judge Tauro, has not shown any evidence of being completely batshit insane.
posted by valkyryn at 5:40 AM on July 9, 2010 [2 favorites]


The analysis Tauro uses is essentially that if it interferes with family formation, it's irrational, and thus impermissible. Just about every single government social program does this .... This isn't a "victory" anyone who likes social safety nets should be all that excited about...
posted by valkyryn at 8:40 AM on July 9


you have got to be kidding me. ugh, libertarians.
posted by liza at 5:59 AM on July 9, 2010


you have got to be kidding me. ugh, libertarians.

I don't get it. Tauro is essentially using libertarian arguments to get his desired result. All I'm doing is 1) pointing out that he's doing that, and 2) pointing out that the First Circuit isn't likely to call the entire administrative state into question on this basis.

You got a problem with that?
posted by valkyryn at 6:06 AM on July 9, 2010


These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well.
you have got to be kidding me. ugh, libertarians.
I'm not sure I agree with Balko's reasoning here. For example, in the 3rd-last paragraph, he closes with "[Tauro] is, in essence, laying the groundwork for an equal protection challenge to state marriage laws in virtually every state. This is not a result that is particularly respectful of state prerogatives!"
But Tauro was arguing that the federal government doesn't have the right to usurp a definitional power from the States - an equal protection challenge is a constitutional challenge unless I'm mistaken - so it doesn't need to be respectful of state prerogatives in the same sense. The fact that a federal court is the arbitrar of that question is only relevant if you believe that they can't be impartial, and I can't stand that type of argument and don't believe it.

Or another example, Balko says:
"He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families."

As I read the decisions, marriage is a distinctly state law function with regards to defining and solemnizing marriage. So a state has the right to deem what a marriage is (two consenting adults, 3 consenting males, Al Gore and everybody, whatever they want) subject I guess to certain constitutional challenges (hence Loving v. Virginia? I don't really know the case enough to say) and subject to the Full Faith and Credit clause which I just am not competent to speak on. But that's about it. And they have the right to decide how and when marriages can happen, and who officiates (do you need a witness, is there an application/waiting period, can MrMoonMan just randomly marry people in the atrium of the LoC?)

The point is, while the federal government is involved in the regulation of family life, by tax breaks, end-of-life planning, all the things that pretty much everyone here thinks must be extended to same-sex couples, it doesn't generally define who is entitled to those benefits, it just says "check your local marriage laws". Which Tauro talks about on p.29-30 or so of the Gill decision. So I don't really see how Balko's argument holds up - or rather, they're vulnerable to the extent that they "interfere with state policies regarding family formation" is a good thing in this case.

ALL of that being said, at minimum in this thread, Balko (and by extension, valkyryn) have contributed a lot more than anyone who responds with "ugh, libertarians".
posted by Lemurrhea at 6:30 AM on July 9, 2010


Well it's entirely possible that Mass. v. HHS could be use to attack a huge variety of federal programs. And not just the health care bill. Under the analysis in Mass v. HHS, even Medicare is suspect:

It's fun to think about other possible logical consequences of a ruling, but in this case that doesn't matter. Supposing that somehow this decision were sustained, not even Scalia, Thomas, and Alito are dumb enough, not even after they've had a good laugh stomping on kittens, to make a ruling as universally and catastrophically unpopular as killing Medicare.

I don't think anyone expects the decision to be sustained. Just for, if it gets the supreme court, Scalia & co. to maybe have to eat a little crow while they overturn it.
posted by ROU_Xenophobe at 6:49 AM on July 9, 2010


Is the Obama administration the only party able to appeal the ruling?

If so, then we may not need to care what Scalia and the rest of the Supreme Court think of it. It could be done right now.
posted by NortonDC at 7:25 AM on July 9, 2010


These programs have regulatory effects on state family policies just as much as DOMA does.

I agree with Lemurrhea, I don't buy this argument. We're not talking about 'regulatory effects' but about whether the Federal gov has to recognize a marriage solemnized by a state gov under the principles of Federalism. That's a far cry from some amorphous regulatory effect.
posted by miss tea at 7:58 AM on July 9, 2010


Also, this left me wondering what happens if your spouse gets a sex change. Post-DOMA, are you no longer married? Before this law, what happened? And what does changing your gender mean, from a legal perspective. If you dress and act as a woman, can you be legally classified as one? Do we even have legal gender classifications?

Well, of course people have a legal gender. It's on your birth certificate and many other official government/legal documents. In fact, that's the whole basis for marriage discrimination -- not sexual orientation (which the government doesn't have a record of).

I don't think there's one nationwide answer to what happens if someone gets a sex change. I remember reading that it has no effect in Texas since Texas doesn't give any legal recognition to sex changes.
posted by Jaltcoh at 8:09 AM on July 9, 2010


Is the Obama administration the only party able to appeal the ruling?

If so, then we may not need to care what Scalia and the rest of the Supreme Court think of it. It could be done right now.


That may or may not be wise depending on the limitation on how promptly a ruling needs to be appealed.
posted by phearlez at 8:15 AM on July 9, 2010


The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws...

Be sure to check out Project 1138 -- "Project 1138 is designed to increase public awareness of the 1,138 federal marital benefits and protections denied to same-sex couples as the result of marriage inequality."
posted by ericb at 8:24 AM on July 9, 2010 [1 favorite]


Whatever happened to that case in California? Is the judge still deliberating?

Judge Vaughn R. Walker's calendar for July is clear—his ruling on Perry v. Schwarzenegger could come at any time.
posted by ericb at 8:27 AM on July 9, 2010


These programs have regulatory effects on state family policies just as much as DOMA does... The analysis Tauro uses is essentially that if it interferes with family formation, it's irrational, and thus impermissible.

Correct me if I'm wrong... the judge found that the distinction made in DOMA doesn't encourage heterosexual marriage, so it has no rational basis. Per the lawyers among us, above, the rational basis for rule-making was what drove his ruling, not interference with family formation.
posted by SirNovember at 8:29 AM on July 9, 2010


Also, this left me wondering what happens if your spouse gets a sex change. Post-DOMA, are you no longer married?

IANAL, but in general, once a valid marriage license is issued, it can not be revoked. Yes, this means that in states that do not recognize same-sex marriage but DO recognize legal changes in gender, there is a class of "legal same-sex marriages". Of course a gender change at the state level may not be recognized as a gender change at the federal level, and vice versa. In other words, it's a whole mess.
posted by muddgirl at 8:33 AM on July 9, 2010


Andrea Lafferty of the Traditional Values Coalition who "called Tauro's ruling 'judicial activism' and said Tauro was a 'rogue judge':
"We can't allow the lowest common denominator states, like Massachusetts, to set standards for the country."
Ya' know what lady, fuck you! If it weren't for Massachusetts there's a chance this country might not have ever existed. Again, fuck you.
posted by ericb at 8:34 AM on July 9, 2010 [7 favorites]


Clearly, her reference to "lowest common denominator" refers to Massachusetts' consistently having the LOWEST DIVORCE RATE IN THE COUNTRY (PDF link).
posted by me & my monkey at 8:46 AM on July 9, 2010 [3 favorites]


"lowest common denominator states" is a fascinating phrase in that it has no readily apparently meaning at all.
posted by Pope Guilty at 8:48 AM on July 9, 2010 [2 favorites]


Correct me if I'm wrong... the judge found that the distinction made in DOMA doesn't encourage heterosexual marriage, so it has no rational basis. Per the lawyers among us, above, the rational basis for rule-making was what drove his ruling, not interference with family formation.

As always, this is just barely-informed speculation:
You're right in facts but wrong on conclusion. Rational basis tests simply require any rational basis. Notably (this is different in Canada, if you're curious), the basis does not have to have been the basis when enacted, or argued by the government, or what have you. Just that there is one that exists.

For example, in Canada the federal "sunday closing laws" were called the Lord's Day Act. The government tried to defend them by saying that a uniform day of rest is beneficial (which it is), but the court rejected a shifting purpose and struck it down. I gather that in the States, that would be allowed (if it would survive all the other challenges)

So when you say "...doesn't encourage heterosexual marriage, so it has no rational basis", your "so" is wrong. It doesn't encourage heterosexual marriage. Nor does it do anything else that would amount to a rational basis (the only thing it does is punish a despised group based on animus, which is irrational). Not encouraging heterosexual marriage is just one part of the lack of rational basis.

Balko is saying (again, I might be misreading him) that the Judge is holding that interference with family formation/relationships is not a rational basis, and that this could be used to attack other laws that interfere with family formation/relationships, a lot of which are "good". I think that he's mistaking the reason and effect though - the laws all interfere with family formation, but something like income tax can be shown to encourage marriage in general, heterosexual or homosexual, and so there's a rational basis for the law.

What I don't know about this, besides "a lot", is exactly how belief comes up here. For example, in Canada when a policy is challenged as against the Charter (rights-based part of the Constitution), one part of the test is if the law is "rationally connected" to a valid goal. But all you need there is a rational basis for believing this to be the case. So you don't need to prove that a law acts in a certain way, such as incentivizing marriage by tax reductions, but you need to prove that it was rational to believe that, which is a lot easier. The court doesn't get involved in the scientific data (at that stage). I dunno about the American situation.
posted by Lemurrhea at 9:01 AM on July 9, 2010


"lowest common denominator states"
Like Delaware corporate governance laws?
posted by a robot made out of meat at 9:17 AM on July 9, 2010 [3 favorites]


Section IV, in particular, is just deranged, screaming that "The majority of citizens, as represented by their legislators, find it gross"

Ahh yes, Scalia is referencing the infamous 3rd Grade Boys v. Cooties case here. As many of you know, this groundbreaking case has been the basis for many of our nations laws.

To be fair to Scalia though, I didn't actually find the word gross in his dissent. He uses the grown up synonyms "immoral and unacceptable." It sounds much more professional in a legal brief than "Ewwww, gross. Butt sechs!"
posted by formless at 9:22 AM on July 9, 2010


To be fair to Scalia though, I didn't actually find the word gross in his dissent. He uses the grown up synonyms "immoral and unacceptable." It sounds much more professional in a legal brief than "Ewwww, gross. Butt sechs!"


FTFD: "animus alone cannot constitute a legitimate government interest"
posted by mikelieman at 9:50 AM on July 9, 2010 [1 favorite]


Massachusetts' consistently having the LOWEST DIVORCE RATE IN THE COUNTRY.

This is a derail, because it's an absolutely meaningless statistic.

Two reasons:

1) People move. The "divorce rate" is calculated on the basis of divorces per capita. Well, if we look at the rate of marriages per capita, the entire population of Nevada would get married every couple of years. Because there's no way of linking divorces to the states where the marriages originated, simply saying that it has a low number of divorces per capita doesn't actually tell you anything useful.

2) But that aside, Massachusetts also has one of the lowest number of marriages per capita, so it would make sense that there would be fewer divorces. Similarly, a state with a high number of marriages per capita would, all things being equal, have a high number of divorces.

So leave it. It doesn't mean anything. Seriously.
posted by valkyryn at 10:00 AM on July 9, 2010


Related: Futurama's take on the NOM's 'Gathering Storm' ad.
"If robosexual marriage becomes legal, imagine the horrible things that will happen to our children. Then imagine we said those things, since we couldn't think of any. As a mother, those things worry me."
posted by ericb at 10:06 AM on July 9, 2010


Is the Obama administration the only party able to appeal the ruling?

If so, then we may not need to care what Scalia and the rest of the Supreme Court think of it. It could be done right now.


That's not how it works. The District Court for Massachusetts has ruled on this issue, so it's binding in the parts of the country the District Court for Massachusetts presides over - the District of Massachusetts. An appeal takes it to the Circuit Court for the First Circuit, and if they rule in favor of the respondents, the ruling becomes binding over the states of the First Circuit - Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico. Only if it passes at the Supreme Court level does it become the law of the land.
posted by kafziel at 10:06 AM on July 9, 2010


Lemurrhea, you're missing the subtlety here. There are two opinions at issue, and they use entirely different justifications to attack the DOMA.

Gill concludes that there is no rational basis for the legislation, which makes Section 3 violate the Fifth Amendment, but Mass. v. HHS concludes that Section 3 is a violation of the Tenth Amendment because it interferes with states' abilities to regulate core sovereignties. There is no rational basis analysis in the latter: the government simply can't do that, period. Doesn't matter how good the reason is. Every single time Congress oversteps what the courts consider to be the boundaries of the Tenth Amendment, they invalidate the action in question.

So your extended discussion of the rational basis test, used in Gill, really doesn't have any relevance to Balkin's point* about the federalism issues in Mass. v. HHS or how that decision could be used to attack other federal programs. If the Tenth Amendment can be used against as minor a regulation as the DOMA it can certainly be used against such sweeping programs as Social Security and Medicaid.

The key here is that the Tenth Amendment is of essentially no legal import anymore. Congress can, as a matter of practice, regulate whatever the f*ck it wants, whether it impacts state sovereignty or not. The courts almost never use the Tenth Amendment to restrict federal action.* So Tauro using it in Mass. v. HHS flies in the face of existing Tenth Amendment jurisprudence and will likely be struck down on that basis.

*It's "Balkin" not "Balko".

**Twice in the 1990s, but you have to go back decades to find the next one. In 1941, the Supreme Court declared the Amendment to be a "truism" which adds nothing to the Constitution as originally drafted. So using it to get the result Tauro wants in Mass v. HHS really is a novel approach.
posted by valkyryn at 10:14 AM on July 9, 2010


Only if it passes at the Supreme Court level does it become the law of the land.

Or rather, only if the decision survives Supreme Court review does section 3 of the DOMA stop being the law of the land.
posted by valkyryn at 10:15 AM on July 9, 2010


I said above that "this is just barely-informed speculation". For the record, I meant the following was about to be such, that is that my statement linked is speculative. Didn't mean to give the wrong impression.
posted by Lemurrhea at 10:15 AM on July 9, 2010


"Andrea Lafferty of the Traditional Values Coalition who "called Tauro's ruling 'judicial activism' and said Tauro was a 'rogue judge':"

Something I find troubling, and would encourage others to mention if they can find Denise Lavoie's contact information, is that the Traditional Values Coalition is classified as a hate group by the Southern Poverty Law Center, yet the article made no mention of that fact. I think that's a proper thing to let readers know, in order to properly contextualize her quote.
posted by klangklangston at 10:16 AM on July 9, 2010 [1 favorite]


"Activist judge" cry from the right in 3...2...
“‘The fact that the judge could, with a straight face, conclude that after several millennia there is no rational reason why Congress might want to define marriage as one man and one woman, even though it has existed that way for thousands of years, is irrational,’ said Bruce Hausknecht, judicial analyst for CitizenLink, the political arm of the group Focus on the Family.

Kris Mineau, president of the Massachusetts Family Institute, called Tauro’s decision ‘another blatant example of a judge playing legislator.’

‘We believe it’s an egregious decision by obviously an activist judge, and it runs counter to previous federal decisions in other districts,’ he said. ‘The federal government should have the right to determine [who receives federal] benefits.’ Tom McClusky, senior vice president of the conservative Family Research Council, argued that Tauro’s decision ‘results from the deliberately weak legal defense of DOMA that was mounted on behalf of the government by the Obama administration, which has called for repeal of the law.’’*
posted by ericb at 10:16 AM on July 9, 2010


Kafziel, I didn't think about the limited geographic applicability of the ruling, but my question is still valid for Massachusetts. What if the administration doesn't appeal? Can anyone else?
posted by NortonDC at 10:17 AM on July 9, 2010


Only if it passes at the Supreme Court level does it become the law of the land.

Yep.
"Massachusetts Attorney General Martha Coakley, who brought one of the two challenges, said the decisions would apply only to the approximately 16,000 same-sex couples who have married in Massachusetts since gay marriage became legal here in 2004. They will now become eligible for the same federal benefits extended to married heterosexuals, she said.

'Judge Tauro’s decision does not technically apply to other states,' Coakley said. 'It doesn’t change anything in terms of how they treat marriage or how they’re treated by the federal government.'

But opponents as well as proponents of same-sex marriage predicted that the Obama administration will appeal the rulings to the US Court of Appeals for the First Circuit in Boston and that the constitutionality of the law will be decided by the US Supreme Court. During an appeal, it is likely that the law would remain in effect, lawyers said."*
posted by ericb at 10:21 AM on July 9, 2010


valkyryn, since Gill and HHS are different cases, would the voiding of HHS change the outcome for DOMA if Gill stood? It doesn't seem like it, since they are distinct. So HHS could be struck down, and section 3 of DOMA would still be voided so long as Gill stands.
posted by NortonDC at 10:24 AM on July 9, 2010 [1 favorite]


Slate on the subject.
posted by Lemurrhea at 10:24 AM on July 9, 2010


valkyryn:
Mass. v. HHS concludes that Section 3 is a violation of the Tenth Amendment because it interferes with states' abilities to regulate core sovereignties. There is no rational basis analysis in the latter: the government simply can't do that, period. Doesn't matter how good the reason is. Every single time Congress oversteps what the courts consider to be the boundaries of the Tenth Amendment, they invalidate the action in question.

Although I see your point, the HHS ruling specifically refers back to the Gill decision.

Page 26: This fourth Dole requirement “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”
Page 27: And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.

From what I can gather, Dole says that the Spending Clause can't be used to create a unconstitutional legislation. Since the DOMA is unconstitutional on equal protection grounds (final para. of p.26), the Spending Clause can't save it.


Now, on p.28, the second point deals with DOMA interfering with domestic relations, which are a traditional state sovereignty issue. On that point, Balkin1 has a very strong argument. Then, I gather, the invalidation of say the new health care would involve proof that health care is traditionally a sovereign state function, and I don't really know the details there.

But the first argument, from Dole's 4th point, still holds. At the outset of that (problematic) second point, the Judge says:

"That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment" (my emphasis)

1: Whoops, my bad. Mixed him up with Radley Balko when I saw someone bitching about libertarians.
posted by Lemurrhea at 10:50 AM on July 9, 2010


valkyryn, since Gill and HHS are different cases, would the voiding of HHS change the outcome for DOMA if Gill stood?

A good question. Two things.

First, I wouldn't be at all surprised if the First Circuit dealt with these cases together. The issues are substantially identical, and it isn't uncommon for appellate courts to merge cases in situations like this.

Second, Gill may even be weaker than HHS, for different reasons. It's certainly less dangerous to the overall federal project than HHS, but the rational basis test is conceived as the most deferential standard of review on the books. The way it work is that the court is supposed to assume that the law is rational and use any justification it can find to uphold it. The fact that the court can come up with an argument to invalidate the law doesn't matter if it can come up with any argument to uphold it. It's almost impossible to invalidate a law under that analysis.

As such, it will be pretty easy for the First Circuit to hold that Tauro has misapplied the standard of review, as he does not appear to have shown Congress any deference at all. He seems to have started from the assumption that the law is unconstitutional or, most generously, stopped his analysis once he came up with one argument that the law was irrational without seriously considering counter-arguments. Congress just needs a reason--and it can be a bad or even immoral reason--to do what it wants.

Mass. v. HHS has the stronger legal argument, but as I've indicated above, you have to use the Tenth Amendment in a way that the Supreme Court has shown no willingness to use it.

In short: I see both of these cases being overturned by the First Circuit before the ink has dried.
posted by valkyryn at 10:59 AM on July 9, 2010


Lemurrhea, yes Mass v. HHS does seem to reference Gill, but that just seems to be a restatement. The core of the argument seems to be in the second bit you cite, and again, Balkin's analysis looks on point to me.
posted by valkyryn at 11:02 AM on July 9, 2010


You responded without answering my question, valkyryn.

Let's try again: Does Gill still void section 3 of DOMA if HHS gets separately overturned?
posted by NortonDC at 11:06 AM on July 9, 2010


“‘The fact that the judge could, with a straight face, conclude that after several millennia there is no rational reason why Congress might want to define marriage as one man and one woman, even though it has existed that way for thousands of years, is irrational,’ said Bruce Hausknecht, judicial analyst for CitizenLink, the political arm of the group Focus on the Family.

You know, it occurs to me... following that line of argument, Focus On The Family should be advocating for the end of representative government and a creation of a monarchy to rule over the USA. Thousands of years of human history under which the masses were subjects of royal families who ruled over them cannot simply be swept aside because a few upstart colonies think it should be. That's irrational, and we must bring our governing bodies in line with historical precedent.
posted by hippybear at 11:13 AM on July 9, 2010


For the lawyers in here: Am I correct in thinking that if (when) Gill is overturned, since the decision is a summary judgement, that means it goes back down to an actual trial?
posted by PMdixon at 11:29 AM on July 9, 2010


Valkyryn, I agree with your descriptions, but disagree with your conclusions! I think that if ANYTHING has a chance to beat the rational basis test, it's gay marriage. As the California trial showed, almost every stated rationale boils down to animus or is nonsensical. (E.g., gay marriage hurts straight marriage -- there's no evidence for that.) There's much more evidence here that DOMA is based on animus and disgust than there was that the food stamp law in Moreno was based on hating "dirty hippies." I believe there's a fighting chance.
posted by yarly at 11:32 AM on July 9, 2010


Chris Hayes ('Rachel Maddow Show') on what the DOMA decisions mean [video | 06:26].
posted by ericb at 12:00 PM on July 9, 2010


I think that if ANYTHING has a chance to beat the rational basis test, it's gay marriage.

You misunderstand the rational basis test. I can tell this because you want to debate the issue on the merits.

The test is not a referendum on whether Congress' decision was right. That doesn't matter. The courts generally refuse to evaluate the merits of Congress's decision, which is exactly what Tauro did, by the way.

The rational basis test is essentially asking whether Congress could have come up with any constitutional reason at all for doing what they did. Doesn't have to be one supported by the evidence. Doesn't have to be pretty. It just has to be within the incredibly broad bounds of things Congress is allowed to do. As long as it falls in there, congressional action will survive the rational basis test. Evidence that the decision is right or wrong is completely irrelevant and should not enter the analysis. That's what legislative debate is for, and the courts are not an opportunity to rehash such debates. If you lose on the floor of Congress, you basically just lose, unless you can prove that Congress is actually acting outside its enumerated authority.*

This is probably why Gill is getting overturned: it really looks like Tauro misapplied the test. Even if he's ultimately right, he didn't do the analysis properly. Once he found an argument that the DOMA was wrong, he concluded that it was therefore irrational. That's not how that test works, and that's why people are saying this is going to get remanded.

Besides, you also misunderstand how legislation works. "Animus and disgust" are things upon which legislators are generally permitted to make laws provided they don't violate any other constitutional restrictions on lawmaking. The body politic is, within certain limits, allowed to outlaw things it doesn't like. Full stop. Gambling and prostitution are illegal in most states--and transporting prostitutes across state lines is a federal crime--simply because most of the population believes such things to be immoral. No further justification is needed. So I really don't know where Tauro gets his idea that because legislation is founded on animus that it is therefore impermissible. If that were true, you'd have to strike down a huge swath of legislation on both the state and federal levels, and I really can't see the First Circuit going for that.

*Which is exactly what Mass. v. HHS concluded.
posted by valkyryn at 12:04 PM on July 9, 2010


Related: David Boies and Ted Olson at Aspen Ideas Festival on the Fight to Overturn Proposition 8 [video | 06:03].
posted by ericb at 12:06 PM on July 9, 2010


Full Boies/Olson presentation [video | 46:03].
posted by ericb at 12:08 PM on July 9, 2010


Okay, let me be clear here: I think that DOMA is unconstitutional, largely for the reasons announced in the latter part of Mass. v. HHS: this isn't something Congress ought to be able to legislate about.

But I believe that because I also believe that Medicare, Medicaid, and Social Security are unconstitutional.

I also recognize that this is a non-starter. The Supreme Court is not going to eliminate half of the federal budget with the stroke of a pen by undoing seventy years of jurisprudence. Which is exactly what Mass. v. HHS threatens to do by suddenly resurrecting the Tenth Amendment as a serious barrier to Congress's ability to legislate.

Put things in perspective: if you step back from the fact that same sex marriage is a hot button topic that a lot of people around here care about, it isn't nearly as big of a deal on a macro level as, oh, I don't know, the hundreds of billions of dollars we spend on social safety nets every year. If Congress isn't allowed to do something as modest as the DOMA, there's no way in hell it can do something as ambitious as providing benefits checks for 52 million Americans.

Because the Supreme Court isn't likely to countenance any threats to the constitutional regime which undergirds those large-scale programs, this unexpected resuscitation of the Tenth Amendment isn't going to get very far.

Look: if you want the federal government to be able to touch every aspect of your life the way you need it to if you want a robust social safety net, it's really, really hard to get away from the idea that it can't pass something like the DOMA. Empowering Congress is precisely that. So while you can argue on moral grounds that Congress shouldn't have passed the DOMA, and maybe even be right, arguing on constitutional grounds that it couldn't have passed it while simultaneously arguing that it can regulate all sorts of other things which aren't in Art. I is just inconsistent.

In short, either you want a robust federal government or you don't. You can't have it both ways. You want the DOMA gone, win a f*cking election.*

*Only that doesn't seem to be working out very well either. Tough noogies.
posted by valkyryn at 12:15 PM on July 9, 2010


valkyryn, does Gill still void section 3 of DOMA if HHS gets separately overturned?
posted by NortonDC at 12:18 PM on July 9, 2010


valkyryn, does Gill still void section 3 of DOMA if HHS gets separately overturned?

Yes.
posted by valkyryn at 12:21 PM on July 9, 2010


Thank you.
posted by NortonDC at 12:22 PM on July 9, 2010


Andrew Sullivan -- Why The Tea Partiers Should Oppose DOMA
"The right is hoist on their own federalist petard and will now have to choose whether states' rights or marriage inequality is more important to them."
posted by ericb at 12:23 PM on July 9, 2010


valkyryn wrote: "You misunderstand the rational basis test. I can tell this because you want to debate the issue on the merits. ... The rational basis test is essentially asking whether Congress could have come up with any constitutional reason at all for doing what they did. Doesn't have to be one supported by the evidence. Doesn't have to be pretty. It just has to be within the incredibly broad bounds of things Congress is allowed to do. ... "Animus and disgust" are things upon which legislators are generally permitted to make laws provided they don't violate any other constitutional restrictions on lawmaking. ... Gambling and prostitution are illegal in most states--and transporting prostitutes across state lines is a federal crime--simply because most of the population believes such things to be immoral. No further justification is needed."

I think you're overstating your case here. You're right that rational basis challenges are damn hard to win -- but legislation still has to be designed to do something. Congress doesn't just have to be allowed to pass the law, there has to be some reason it might have done so, and animus and disgust aren't necessarily good enough.

Gay rights cases bear this out. In the Goodridge case the Massachusetts Supreme Judicial Court found: "we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection," rejecting each purported justification including moral judgment. Under the federal Constitution, in Romer v. Evans the Supreme Court concluded that a provision discriminating against homosexuals "was 'born of animosity toward the class of persons affected' and further that it had no rational relation to a legitimate governmental purpose." In Lawrence v. Texas, where that quote comes from, the Court (Justice Kennedy writing) suggested that sodomy laws could be struck down on the same basis, but instead chose to strike them down under a broader due process right to privacy, so the holding wouldn't be limited to laws discriminating against homosexuals.

I'm not saying the same logic will necessarily be applied in this case--you're right that it will be a fight, and there are other cases that go more your way. But you're taking the reasons for placing your bet, and turning them into absolute truths that I'm not sure are supported by the caselaw. Unless there's a way I'm missing that Romer is consistent with your description of rational basis review?

(It's a side point, but as to your particular examples of prostitution and gambling, I doubt that the practical reasons against those laws are nearly as baseless as those against gay marriage. There is at least a credible argument that they harm people somehow.)
posted by jhc at 12:50 PM on July 9, 2010


Er, "... I doubt that the practical reasons for those laws ..." It's still not an awesome sentence, but I'll leave it there.
posted by jhc at 12:52 PM on July 9, 2010


Newsweek: Federal Judge Rules Defense of Marriage Act Unconstitutional. Will It Stick?
posted by ericb at 1:06 PM on July 9, 2010


The Atlantic: 5 Ways Defense of Marriage Act Ruling Could Backfire.
posted by ericb at 1:07 PM on July 9, 2010


Unless there's a way I'm missing that Romer is consistent with your description of rational basis review?

I think there is. The law at issue in Romer explicitly engineered to interfere with both equal protection and due process across the board. The DOMA does no such thing. The animus part is essentially dicta, as the real problem with Amendment 2 was its categorical interference with legal rights of every sort.

I don't feel the need to address what state supreme courts do, as they are entirely free to come up with their own standards for review. They're also interpreting their own states' constitutions, which the federal Supreme Court tries to avoid as much as possible.
posted by valkyryn at 1:09 PM on July 9, 2010


It seems the problem here is that liberals are (broadly speaking) pro-federalist but the federal government (congress, SC and the executive) is, broadly speaking, anti-gay.

Were looking to the Fed for our salvation when local voters fail us and then looking to the courts when the Feds fail us - but the fundamental problem remains: most Americans just don't like gays.
posted by Avenger at 2:07 PM on July 9, 2010


Were looking to the Fed for our salvation when local voters fail us and then looking to the courts when the Feds fail us - but the fundamental problem remains: most Americans just don't like gays.

Yep. That about sums it up. As long as this is true, the political situation isn't likely to change.
posted by valkyryn at 2:51 PM on July 9, 2010


... most Americans just don't like gays.

Umm...
Gallup | May 25, 2010: Americans' Acceptance of Gay Relations Crosses 50% Threshold.

Gay? Whatever, Dude.
posted by ericb at 4:46 PM on July 9, 2010 [1 favorite]


Kaiser Family Foundation 2001 Survey:
"73% of the general public in the United States in 2001 stated that they knew someone who is gay, lesbian, or bisexual....76% of the general public think that there should be laws to protect gay and lesbian people from job discrimination, 74% from housing discrimination, 73% for inheritance rights, 70% support health and other employee benefits for domestic partners, 68% support social security benefits, and 56% support GL people openly serving in the military. 73% favor sexual orientation being included in the hate crimes statutes."*
posted by ericb at 4:50 PM on July 9, 2010 [1 favorite]


As per the other "hot topic" (i.e. gays serving openly in the military). there is majority support for such:
• 73 percent of military personnel are comfortable with lesbians and gays (Zogby International, 2006).

• Majorities of weekly churchgoers (60 percent), conservatives (58 percent), and Republicans (58 percent) now favor repeal (Gallup, 2009).

• Seventy-five percent of Americans support gays serving openly - up from just 44 percent in 1993 (ABC News/Washington Post, 2008).
posted by ericb at 4:53 PM on July 9, 2010 [1 favorite]


... most Americans just don't like gays.

Let's not short-change our fellow citizens. A vocal minority of homophobes does not speak on behalf of the majority.
posted by ericb at 4:54 PM on July 9, 2010 [2 favorites]


A vocal minority of homophobes does not speak on behalf of the majority.

Are you familiar with all the state referenda that have banned same-sex marriage?
posted by Jaltcoh at 9:22 PM on July 9, 2010 [2 favorites]


"He musta had one awkward night in college or something."

Maybe he still is!
posted by Twang at 12:06 AM on July 10, 2010


... most Americans just don't like gays.

When you get into the under-30s you get close to 70-75% acceptance. Which is why all this fuss will seem quite quaint in 2030.
posted by Twang at 12:25 AM on July 10, 2010


Are you familiar with all the state referenda that have banned same-sex marriage?

Yeah, that's the thing. Every single time same-sex marriage has come up for a vote, it has been shot down. The closest we've gotten is the civil union (separate but equal) law that just barely passed in WA. I'm also pessimistic about the under-30 crowd. This is still a crowd that uses "gay" as an epithet. I think the surveys claiming large support for gay marriage are a result of them saying what they think they should say, rather than what they really believe (I guess that's progress of some sort, but...). In the highly unlikely event that the Supreme Court upholds this ruling, I suspect we will see a constitutional amendment banning gay marriage pass within a decade.

(and no, DADT won't be repealed anytime soon)
posted by dirigibleman at 12:41 AM on July 10, 2010 [1 favorite]


Well, Referendum 71 passed in WA 53.15% to 46.85%. That's a 6.3% margin, nearly 113,000 votes. I don't know whether that really qualifies as "barely passed". That's a larger percentage of the vote than Obama received, which itself was the largest margin of the popular vote received by anyone since GHW Bush defeated Dukakis.

It wasn't any kind of overwhelming landslide or anything, but it's a respectable margin to win by in our increasingly balanced voting populace.
posted by hippybear at 9:08 AM on July 10, 2010


Related: Get Caught Up on Proposition 8 in Less Than Five Minutes.
posted by ericb at 1:14 PM on July 12, 2010


I think the surveys claiming large support for gay marriage are a result of them saying what they think they should say, rather than what they really believe (I guess that's progress of some sort, but...).

I think it's equally likely that there's a difference between answering a question when someone calls your phone and actually getting off your ass and going to the voting booth. Possibly/probably those people WOULD vote that way if it could happen by magic and w/o any effort. But the folks who show up - particularly for special elections/off years - are motivated by passion, not calm acceptance.
posted by phearlez at 1:47 PM on July 12, 2010


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