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Obama Administration appeals DOMA ruling

Timothy Kincaid

October 12th, 2010

From NPR:

The U.S. Department of Justice on Tuesday defended the federal law defining marriage as between a man and a woman by appealing two rulings in Massachusetts by a judge who called the law unconstitutional for denying federal benefits to gay married couples.

In two separate cases, U.S. District Judge Joseph Tauro in July ruled the federal Defense of Marriage Act, known as DOMA, is unconstitutional because it interferes with a state’s right to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The notice of appeal filed Tuesday did not spell out any arguments in support of the law. The appeals eventually will be heard by the 1st U.S. Circuit Court of Appeals in Boston.

According to GLAD, briefs will be filed before First Circuit Court of Appeals probably between now and next spring, with oral arguments likely to be heard in the fall of 2011.

The Department of Justice had an obligation to defend the law. But there is no legal obligation to appeal the rulings of the court.

Fierce advocate in action.



October 12th, 2010 | LINK

Well, then.

Question: Does the ruling only apply to Section III of DOMA prohibiting Federal recognition, or does it also apply to Section II, which disqualifies SSM’s from the Full Faith and Credit clause?

Stefano A
October 12th, 2010 | LINK

The rulings apply only to Massachusetts and only to Section III, because that is the only section that this specific case, Gill challenged.

Jim Burroway
October 12th, 2010 | LINK

As I wrote before, I believe that the Obama administration SHOULD appeal the DOMA rulings. RIght now, the injunction is extremely limited in scope and applies to Massachusets residents only. If the First Court of Appeals upholds the ruling, then it applies to the entire First Circuit.

The idea that we would be satisfied for Massachusetts to get one treatment under Federal law while everyone else gets a different treatment is, to me, beyond indefensible. As I said, if we’re in for a penny, we’re in for a pound. It’s too late to turn back now. We need to see it to its logical conclusion. For the Obama administration to stop now would be like giving a big giant middle finger to everyone in all of the other 49 states and territories.

On the other hand, I do believe that the Obama administration should decline to appeal the injunction against Don’t Ask, Don’t Tell. That injunction has global reach and applies to everyone equally, regardless of who they are or where they are. I’m not holding my breath that the DoJ will see it that way, but that’s how I prefer to see things roll.

Timothy Kincaid
October 12th, 2010 | LINK

I respect your argument, Jim, but disagree.

I don’t think we would be satisfied to stop at Massachusetts, but rather that we would build on this victory – limited as it is. Just as we took the victory for marriage in Massachusetts and are now building it by a state-by-state movement, so too would we challenge DOMA in each state in which marriage equality exists.

This decision – if left unchallenged – would have provided precedent, especially in the First Circuit were most of the other marriage states reside. Yes, it would have been a temporary delay in four states, but it would mean immediate recognition in one. As it stands, we have no federal recognition now, anywhere.

Please recall that this decision, if we were to prevail at the SCOTUS level does not have impact on all 50 states. Rather, it ONLY impacts those which already have marriage. So this is not a 49 to 1 fight. Rather it is a 5 to 1 battle over timing.

If we lose at SCOTUS, we have NO states with federal recognition. If we win, we will have five.

October 12th, 2010 | LINK

Timothy: New Hampshire is the only other state in the First Circuit with equal marriage.

John in the Bay Area
October 12th, 2010 | LINK

Obama has given lip service to opposing DOMA, but has done nothing to overturn it. He has vigorously defended DOMA whenever it has been challenged.

Actions truely do speak louder than words. It is clear that Obama completely supports DOMA and will do whatever he can to defend that law, and apparently every other piece of anti-gay legislation out there.

Rob San Diego
October 12th, 2010 | LINK

I’m going to have to agree with Timothy on this one. The thought that it will just keep getting appealed to the SCOTUS where there is no guarantee that we would win with such a conservative court. Personally I’m getting sick and tired of all these appeals we’re getting.

October 12th, 2010 | LINK

Whiskey. Tango. Foxtrot.

What used up wad of toilet paper decided to appeal?

Nate W.
October 12th, 2010 | LINK

I would have appealed it if I were the Obama DOJ–the judge included some crazy tenther BS into the ruling that really needs to get smacked down by an appeals court. This post explains more.

Timothy Kincaid
October 13th, 2010 | LINK


I thought Connecticut was as well. My error.

Timothy Kincaid
October 13th, 2010 | LINK

Nate… we do have a 10th amendment and it really does limit the federal government. And I, at least, am a strong supporter of the tenth amendment.

Nate W.
October 13th, 2010 | LINK

Timothy K., Where in the tenth Amendment does it affirmatively state that the federal government cannot do anything? The tenth amendment basically states “those powers that are not delegated to the federal government in the Constitution are retained by the states or the people.” The Court in _Gill_ stated that the tenth amendment provides a limit on Congress’s authority over “traditional state functions,” which is no where in the text and was explicitly rejected by the supreme court in _Garcia._ There are sound 14th amendment reasons to reject DOMA, and I hope the 1st Circuit finds that way. I just think it is dangerous for the progressive agenda to allow the positive tenth amendment (which was finally killed at the beginning of the new deal) to be resurrected.

Timothy Kincaid
October 13th, 2010 | LINK


I am not a supporter of “the progressive agenda”

Priya Lynn
October 13th, 2010 | LINK

Timothy, gay equality is part of the progressive agenda so you’re a supporter of part of it.

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