Defense of Marriage Act Declared Unconstitutional

Jim Burroway

July 8th, 2010

We have just received word that a Federal Court Judge has ruled the Defense of Marriage Act unconstitutional.

According to a press release issued by Gay & Lesbian Advocates & Defenders (GLAD):

This afternoon, a federal court judge issued a decision in Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders’ lawsuit challenging Section 3 of the Defense of Marriage Act (DOMA).

The judge also issued a decision in Commonwealth v. United States Department of Health and Human Services, Attorney General Martha Coakley’s lawsuit challenging Section 3 of DOMA, which is separate from GLAD’s lawsuit and based on a different legal theory.

 One Tweet has it that GLAD’s case was decided on “equal protection principles.” Of course, we eagerly await the text of the ruling itself, which I presume will not be in the form of thousands of tweets.

This is an important first step in the long slog to the Supreme Court. Given that the U.S. Justice Department is likely to appeal the ruling, it’s unclear what immediate affect this ruling might have.

Update 1: Bay Windows has more information:

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

Both cases were argued separately last May, although both decisions were handed down simultaneously today. Bay Windows notes that this is an extremely quick turn for a decision like this.

Update 2: Reporter Rex Wocknoer sent out this key snippet from the Commonwealth vs US HHS decision:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. 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.

Update2  3 and 4: The Gill decision has been uploaded here. The Commonwealth decision is here. I’m pretty busy right now, so feel free to discuss them in the comments.


July 8th, 2010


Timothy Kincaid

July 8th, 2010

Both the Tenth Amendment and Due Process? Very cool.

John in the Bay Area

July 8th, 2010

So, will Obama file an appeal?


July 8th, 2010

Very cool.. and well very fricking obvious.

Can’t wait to hear how the retards in SCOTUS get it wrong, though.

Timothy (TRiG)

July 8th, 2010

Are there any links to the original PDFs instead of the ad-ridden flash Scribd version?

PDF is an open standard, which can be viewed with Free Software. Flash isn’t.

Also, Woot! Excellent news!



July 8th, 2010

TRiG, click the download button. :)


July 8th, 2010

Conservatives ought to be receptive to the 10th Amendment argument…not saying they will be, but they ought to be.

Timothy (TRiG)

July 8th, 2010

It seems Scribd isn’t using flash after all, though I’m sure they do on their embedded version. They’re using some very clever HTML and CSS instead, which are open standards.

You still can’t download it without signing in, though. The original PDFs must be available somewhere.



July 8th, 2010

So, what does this mean, really?

Will US Gov. recognize same sex marraige if the state does also? Does it have to go through the appeals process first?


July 8th, 2010

I urge everyone to contact their senators and representatives to request that they take immediate action to repeal all aspects of DOMA. Doing so will save the government millions in what amounts to a ridiculous effort defend a law that is so clearly a violation of the constitution.


July 8th, 2010

“So, what does this mean, really?

Will US Gov. recognize same sex marraige if the state does also? Does it have to go through the appeals process first?”

Well, if the decisions stand it will mean the Feds have to recognize legal state marriages. However, the decisions will almost certainly be appealled all the way up to the SCOTUS.

Timothy Kincaid

July 8th, 2010

No word yet on appeal. The Justice Department is “reviewing the ruling”


July 8th, 2010

Apparently a ruling in CA is expected soon?

Priya Lynn

July 9th, 2010

Timothy said “No word yet on appeal. The Justice Department is “reviewing the ruling””.

If I remember correctly Obama said something to the effect that although this law is discriminatory his government has to defend laws that are constitutional. This is his opportunity to show some intregrity and refuse to defend this law based on his own assessment of the situation.

Neon Genesis

July 10th, 2010

If DOMA is unconstitutional because it infringes on states’ rights to decide, does this mean states are required now to put gay marriage to a vote? Is it now unconstitutional for the federal government to make gay marriage in all 50 states? Is Loving v Virginia unconstitutional now?

John in the Bay Area

July 10th, 2010

Neon Genesis,

A lower court does not have the authority to overturn Loving v. Virginia.

Patrick Garies

October 12th, 2010

Neon Genesis wrote: “If DOMA is unconstitutional because it infringes on states’ rights to decide, does this mean states are required now to put gay marriage to a vote?”

The answer is “no”. These decisions just mean that, if a state chooses to make marriage inclusive of same-sex couples, the federal government must respect that state’s decision and recognize those state-sanctioned marriages as it would any other marriage from that state rather than selectively denying that state’s couples benefits as they do today.

Neon Genesis wrote: “Is it now unconstitutional for the federal government to make gay marriage in all 50 states?”

I would think so.

Congress could presumably circumvent that though by issuing a non-discrimination law covering sexual orientation.

Neon Genesis wrote: “Is Loving v Virginia unconstitutional now?”

No. Only the Supreme Court or a constitutional amendment can change that.

Timothy Kincaid

October 12th, 2010

No, Congress cannot circumvent the constitution. But the Courts can find that anti-gay marriage laws are in violation to Due Process and Equal Protections.

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