Gay Marriage, the Old School Way

[LostinVA]

Gay Marriage, the Old-School Way
Judge Joseph Tauro's courageous ruling in favor of same-sex marriage.
By Linda Hirshman


While the constitutional challenge to California's ban of gay marriage grabbed all the headlines this year, a pair of deliberately narrower cases has been quietly proceeding in Massachusetts federal court. Couples married under Massachusetts' same-sex marriage law, and Attorney General Martha Coakley, challenged the federal Defense of Marriage Act. They argued that in Massachusetts, DoMA's prohibition against extending to gay couples federal benefits—like filing a joint income-tax return or claiming spousal Social Security benefits–is unconstitutional. By starting in Massachusetts, the lawyers avoided a direct challenge to other states' prohibitions on same-sex marriage. They simply asked the federal government to treat the state's gay married couples the same way the feds treat everyone else.

On Thursday, in a sweeping opinion in this deliberately narrow case, Judge Joseph Tauro of the United States District Court for the District of Massachusetts struck down a key part of DoMA. In his opinion in the main case, Gill v. Office of Personnel Management, Tauro rejected every possible reason to retain the law. (In the companion case brought by Coakley, he also found that Congress had overstepped the boundary between the federal government and the states, adding a sweet states' rights gloss to the generally liberal decision.) Tauro didn't buy the rationale that apparently sounded reasonable to Congress when it passed DoMA in 1996, the lukewarm defense the Obama administration came up with, or any other reason the court could conceivably imagine.

"The Constitution 'neither knows nor tolerates classes among citizens,' " Tauro opened, a pointed citation of Justice Harlan's dissent in Plessy v. Ferguson, the universally discredited 1896 Supreme Court ruling that upheld segregation. He then decimated the Obama Justice Department's rationale for DoMA as a legitimate effort to preserve the existing social order to buy time for society to digest the controversial idea of same-sex marriage. The anti-miscegenation laws that spread among the states before the Supreme Court struck them down in 1967, he said, did not cause Congress the concern for social order it invoked in defense of DoMA. Nor did the existing marriage law of Massachusetts' neighbor, New Hampshire, which alone among the states allows a 14-year-old to marry a 13-year-old. Tauro concluded that DoMA was driven only by animus against gay people. And animus alone is not a legitimate basis for the government to act. "If the Constitution means anything, it does at the very least mean that the Constitution will not abide a bare congressional desire to harm a politically unpopular group," Tauro wrote.


http://www.slate.com/id/2260039/

[terrya]

1. Good article.

I think we'll see that when the history of marriage equality is written, Judge Tauro (an appointee of Richard Nixon) and his brilliant ruling will be an important moment in our right to marriage.

One tiny quibble with that article...I sort of shy away from labeling it "gay marriage". It's just plain marriage equality to me.

[LostinVA]

6. I agree with both the quibble and the "landmarkness" of teh ruling

This was tucked away in Editorials, and I thought it deserved a wider reading.

[mentalsolstice]

2. K&R

Even though it's not a popular subject 'round here these days.

[LostinVA]

8. !!!

[Forkboy]

3. K&R

[racaulk]

4. Recommended. n/t

[jonnyblitz]

5. great article and I am glad you posted it because I never

think to check Slate out anymore and I would have missed it. :hi:

[LostinVA]

7. Yeah, I thought it was worth sharing with GD