While we wait for the Prop 8 case, a pair of important cases out of Massachusetts were decided by a federal district judge, concerning an often forgotten aspect of DOMA:
U.S. District Court Judge Joseph Tauro, appointed to the federal bench in 1972, ruled this afternoon in Gill v. Office of Personnel Management that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. A companion decision in Massachusetts v. U.S. Dep't of Health and Human Services also was issued, with Tauro finding that DOMA also violates the Tenth Amendment and the Spending Clause of the Constitution.
As one of the rulings noted on study determined that there are "1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status," benefits that will not be secured by state action alone, be it "marriage" or "civil union." [GAO report] The issue in one case were federal health benefits, social security benefits and the ability to file taxes jointly.
The Obama Administration had a tricky time with these cases, since he is after all on record being against DOMA, and in support of broad civil union benefits for same sex couples. For instance, the court here says that the rationales stated by Congress were rejected:
(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources
Reasonably so, since the arguments are shown here to be lame, as they have been [but as with making fun of a lesbian's looks or assume some neutral clothing regulation is involved, they keep on being tossed around as if they are not; see some ugly comments to this article] repeatedly. This includes the fact that "same-sex marriages by all fifty states would actually result in a net increase in federal revenue." The Administration was left with defending the "status quo." But, the judge will not let them get away with that either, particularly:
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.
Marriage changed greatly over the years in a great number of ways, and in no way consistently, but such a federal limitation was not put in place to "slow things down," even when the changes came -- as is the case here, since same sex marriage is available in the U.S. both via court and legislative action -- via court process. In fact, in a companion case -- brought by the state -- the Tenth Amendment was invoked. In the MA case, the state sued to obtain "spousal" federal veteran burial funds and health related funds [millions of dollars in total] blocked by DOMA.
[As I note here, if the feds want to retain the status quo and not get bogged down in the conflict, this is a somewhat irrational way of doing so, given it goes out of the way to do just that. Meanwhile, here's a good analysis of the rulings from a new favorite blog. Some time ago, I referenced a tidbit about "general" laws that was not addressed here, but seems to me relevant here.]
The court holds that the fund limitation violations equal protection. But, likewise, marriage is a specifically state function, and the federal government could not single out one type of marriage for disfavor in this fashion. Interracial marriage was not back in the day, and history suggests doing so here would be unique as well. The judge was appointed by Nixon, so such federalism and history based arguments very well might be more appealing to him. Don't know how they will fare on review, but it does underline there is a conservative aspect to this case.
DOMA was specifically set in place to stop the mandated recognition of out of state same sex marriages, but a troubling rider was brought with it -- even if a state legislature (as has occurred a few times already, putting aside D.C.) by majority rule recognizes same sex marriage, the federal government will single out them for denial of over 1000 benefits. Meanwhile, first cousins can marry and in theory (as actually occurred once) a religiously based marriage between an uncle and niece can be allowed as well. Even race -- including in the 1950s -- did not lead to that animus.
This ruling, which might or might not stand, is justified on both equal protection and federalism grounds. Though the reasoning can be applied to overturn DOMA completely, the other aspect -- letting states not recognize out of state marriages -- is at least less irrational on federalism grounds. The rulings have a strong federalism component, so are not completely applicable to a state same sex case (or marriages in federal territories), where control over marriage is somewhat different.And, now for the Prop 8 case ...
[And, for the New Republic-like warning: Jack Balkin warns liberals to not drink the kool-aid of these rulings. But, he himself tries to prove too much. The rulings do not say ALL federal regulation of marriage is a problem; they are saying that selectively barring this category of marriage rights is. Same with the Tenth Amendment -- the rulings are not saying all funding is a problem, those with a strong equal protection problem are all the same. Unpopular or not.
As to "way ahead," how does Jack know that as to having states determine on their own what marriage is and not be selectively burdened in regard to veteran's benefits or whatever is a problem? The case doesn't authorize same sex marriage. It supports local option, one with implications that many probably have not really considered too much. And, rulings of this sort -- like in Vermont et. al. -- tend to nudge people to accept things. Meanwhile, more time will pass in appeals and more pressure will be put toward legislative change DOMA.
Sorry, don't buy it. Nor does a colleague, at least half-way. Not that I can tell him (or his colleague!), since because of a troll or two, he blocked off comments like a weasel.]