Observations about DOMA Cases

Timothy Kincaid

July 8th, 2010

As we noted, Federal Court Judge Tauro of the United States District Court for the District of Massachusetts (First Federal Court District) announced rulings today in two different cases which found the Federal Defense of Marriage Act to be unconstitutional. This, my friends, is a WOW moment.

In reviewing the cases, I noted the following:

* The cases deal with two distinct sets of rights, the rights of individuals (i.e. Gill: the rights of gay married individuals to be treated like any other married individuals), and the rights of states (i.e. Commonwealth: the rights to define marriage for the residents of that state). In both cases and for different reasons, the judge found that the Federal Government had trampled rights.

* Both cases were found on summary judgment, in other words on matters of law not disputed fact.

* In Commonwealth, the judge noted that state control of marriage existed prior to the Constitution, during its enactment and ever since. Indeed, many times between the 1880’s and 1950’s there were an attempts to unify state marriage law and it the method understood to be required – and which was unsuccessfully attempted each time – was by means of a federal constitutional amendment.

* In Commonwealth, the state sued not on behalf of its residents but as an aggrieved party who has to pay taxes unfairly and loses revenue to which it is entitled. Massachusetts argued that it is both forced to discriminate against AND to be cheated by same-sex couples. It provided an example of the Federal Government disallowing the state to offer burial in a state-owned veterans cemetery without losing tens of millions of dollars and also an example of how being forced to treat married gay couples as single would result in the state paying medical benefits to individuals who would not qualify as part of a couple (while this may seem like harsh reasoning, it’s smart to point out that marriages include not only benefits but also obligations). Further, the federal government requires that the state pay taxes on its citizens’ income which should be exempt.

* In Commonwealth, the Judge found that the definition of marriage was not delineated as belonging to the Federal Government and was, therefore, the purview of the states. Further it relied on unconstitutional demands (as found in Gill) and thus does not come under the spending provision exceptions allowed for the federal government.

* The judge in the Gill case did not address issues of strict scrutiny. He found that he could make his determination based on the rational basis (lower level of scrutiny).

As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective.

In Perry v. Schwarzenegger, the opposing counsel argued that under the rational basis test, anything however bizarre or peculiar which ever could possibly be rationalized (what a rational person could believe) must be accepted as a justification for establishing different treatment for equally situated people. Judge Tauro – in this case – did not accept the wide breadth of such argument and this more narrowly insisting on a connection between stated goal and method which is not “arbitrary or irrational” may – at least in the short term – allow for a commonality of thinking and wording.

* In Gill, as in Perry, the plaintiffs defendants (the federal government) tried to distant themselves from the arguments used to enact the legislation and replace these arguments with other, more legally compatible, arguments. Judge Tauro did not allow them to be dismissed entirely.

And as some of the previous arguments were the same as the current arguments in Perry, the finding by Tauro may be relevant to that case. He soundly dismissed the notions that banning gay marriage benefitted children (of anyone), further encouraged heterosexual marriage (“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”), or protected the prestige of marriage (because the only tactic used to enhance heterosexual marriage was to harm gay people).

* In Gill the plaintiffs had offered “consistency” as a justification for not recognizing Massachusetts’ marriages – don’t have some states with some recognition and others with different recognition. They argued that the Feds have a right to “go slow” and wait for consensus. Basing his decision on the Commonwealth case, Tauro found that no such federal right exists.

Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter.

Further, the judge notes that DOMA actually contradicts the government’s criteria for distinguishing between who and who does not get benefits. If the government says that marital status is a legitimate basis for offering benefits to some and not to others, then denying it as a basis for same-sex couples challenges the legitimacy of marital status as a basis at all.

* These cases do not discuss whether states may deny marriage equality, only whether the federal government may do so. If it is constitutionally permissible to discriminate against gay people in matters of marriage, only states may enact that discrimination.

* Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.


July 8th, 2010

This may be a defeat rather than a victory. As a heterosexual married man I do not need to worry about weather another state I travel too recognizes me as married, and indeeed a divorce in any state = a divorce in all states. Today this court put marriage legally the property of the states to decide. Can states choose to discriminate against intra-racial marriages? They so far can against same-sex marriages. Same-sex marriage remains and may remain due to today’s ruling a second-class status, and keeps gay people in a second class citizenship in a country that is supposed to be about equality and liberty.


July 8th, 2010

Well.. as far as I understand, the court wasn’t allowed to consider the issue of marriage portability, so it’s hard to crap on the ruling for that.

Richard W. Fitch

July 8th, 2010

Dayle – The SCOTUS ruling Loving v Virgina precludes any attempt by any state to void interracial marriage. The MA court has essential ruled that there is no just cause to impose two classes of marriage in the US. It will take many weeks, months to spin out all the affects of this case, but most in the LGBT feel this is a step in the right direction.


July 8th, 2010

Quick corrections: What you have listed as the “plaintiffs” in Gill are actually the defendants. The plaintiffs are the ones asking for DOMA to be stricken. The arguments you discuss (e.g., “consistency”) are the reasons put forth by Congress and the Department of Justice (the defendants) for DOMA to be upheld.

I don’t want to seem pedantic, but I want your readers to clearly understand who’s arguing for what in these cases.

Also, “strict scrutiny” and “rational basis” are standards used to review the constitutionality of government action. So a more accurate way to describe the court’s inquiry would be to note that the court is “undertaking XX review” or “applying the XX standard.”

Keep up the good work!

Paul in Canada

July 9th, 2010

This is more than a WOW! moment, it’s pivitol to the accomplishment of full equality. These ‘cases’, one in various provinces set the stage for full legal recognition in Canada at the federal level.

Watch for heightened hysteria from the far-right…….


July 9th, 2010

My worry is the timing. This decision took place just months before the November elections, so there’s a chance it could swing quite a few of them. Combined with appeals to the Tea Party types, renewed Republican promises to amend the Constitution to ban gay marriage will likely win a lot of votes.


July 9th, 2010

As usual, it is necessary to disregard straight folk such as Dale who EITHER misunderstand the ruling OR intentionally seek to convolude the otherwise clear issues and results.

The court ruled that the Federal Government must acknowledge that which States have decided as it relates to granting marriages, that it cannot constitutionally create laws such as DOMA, that DOMA created a “class”.

The Judge was very clear, very thorough, and very well spoken.

I will be difficult IMHO for a higher court to overturn the ruling, and to disregard the relating precedents cited therein.

Priya Lynn

July 9th, 2010

I hope you’re right Customartist and I’m interested in hearing more as to why you think it would be difficult for a higher court to overturn this ruling.

Chris McCoy

July 9th, 2010

Dayle said:

As a heterosexual married man I do not need to worry about weather another state I travel too recognizes me as married, and indeeed a divorce in any state = a divorce in all states. Today this court put marriage legally the property of the states to decide.

Actually, in some circumstances you would have to worry. Currently, 32 states have varying degrees of laws where marriage between 1st cousins, or 1st cousins once removed are not recognized as valid in that state, even if that marriage was performed in a state where it is legal.

So if you were married to a 1st cousin, or 1st cousin once removed (which is legal in 18 states and the District of Columbia, and in most of the rest of the world), that marriage may not be recognized in 32 other states.

Jim Burroway

July 9th, 2010

I think we would want the Obama administration to appeal this in order to eventually get it to the Supreme Court. If it remains at the lower court level, might its impact be limited either geographically or to a limited set of circumstances related specifically to these cases?

Perhaps a lawyer can weigh in on this.


July 9th, 2010

I have a question about the ruling.

Massachusetts, as I recall, requires that your home state supports same-sex marriage in the home state. (I could be wrong on this.) Other states do not have this requirement.

1) Is it possible to get married in a state with same-sex marriage and be treated as married by the federal government even if your home state refuses to recognize that fact?
2) Are you only married in the eyes of the federal government if you have residency in a state supporting same-sex marriage?
3) Are you only married if one or both are physically present in same-sex marriage states?

Basically, what are the extents of a same-sex marriage? Just because you may move from one state to another doesn’t mean that you divorced or separated your assets from your partner’s.


July 9th, 2010

Dayle: The 10th Amendment basically restricts Congress’ powers. The 14th Amendment requires that state actions be in compliance with the Federal constitution. So no, even though states have the power to decide who can get married, they can’t do so in a manner that violates the Constitution.

Jim: According to Adam Bonin at DailyKos, if the ruling isn’t appealed it will apply only within MA.

MaskedBandit: MA repealed the “1913 law” that required out-of-state couples getting married there to meet the marriage requirements of their home states. With respect to your other questions, none of them have yet been litigated, so it’s all up in the air.

Emily K

July 9th, 2010

Appealing might be a good move, then. It will make Obama appear to be upholding the law of the land, as is his duty (which unfortunately includes DOMA), score points among small-minded voters, and take it to the SCOTUS. Let’s hope the SCOTUS would concur with MA in this one, though…


July 11th, 2010

Priya Lynn,

Generally and unrelated to Gay issues, I have read occasionally, and I am NOT a legal expert of any sort, that when an issue is appealed to a higher court, that the higher court, either appropriately or generally, takes the starting position that the ruling of the lower court was a correct one unless it is overwhelmingly proven that the contrary is the case.

I don’t know if this is a written procedure, or just the way things work in the judicial system. I’m certainly open for correction.


July 11th, 2010


I do not think that the Federal Government acknowledges any Gay marriage performed in any state CURRENTLY. This is what the case is all about; Federal Recognition.

It will also be an important decision in the Prop 8 case because of the 14th Amendment. California, and any other state can’t make laws (marital or otherwise) contrary to the Consitiution.

Congress cannot either, therefore, if courts adhere to the Constitution, DOMA will ultimately be invalidated. This will also indirectly apply to all other sorts of discrimination, IMHGO.

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