09 July 2010

DOMA's days are numbered over

I have been of the opinion that the DOMA is unconstitutional since it was passed. For those who do not follow this sort of arcane issue, DOMA sought to permit discrimination against lesbian and gay persons.

Specifically the law sought to do two things. It usurped the power of States to regulate morals by defining "marriage" as a family consisting of one man and one woman. Second it exempted the States from their duty under the "full faith and credit" clause which require that a person married in one State is married in another.

One thrust of a majority of the Supreme Court's members over the last few years has been to seek a restored respect for the power of States. In the view of that majority, the Congress has been overstepping its powers. In that context then, the following from an AP report:
U.S. District Judge Joseph Tauro ruled in favor of gay couples' rights in two separate challenges to the Defense of Marriage Act, known as DOMA, a 1996 law that the Obama administration has argued for repealing. The rulings apply to Massachusetts but could have broader implications if they're upheld on appeal.

The state had argued the law denied benefits such as Medicaid to gay married couples in Massachusetts, where same-sex unions have been legal since 2004.

Tauro agreed and said the act forces Massachusetts to discriminate against its own citizens in order to be eligible for federal funding in federal-state partnerships.

The act "plainly encroaches" upon the right of the state to determine marriage, Tauro said in his ruling on a lawsuit filed by state Attorney General Martha Coakley. In a ruling in a separate case filed by Gay & Lesbian Advocates & Defenders, Tauro ruled the act violates the equal protection clause of the U.S. Constitution.

It is interesting to speculate on what will come of this. The decision is inherently conservative in the sense that it affirms "State's rights." At the same time, the outcome is clearly liberal. So do those who agree with the intention of DOMA's authors appeal? It should be interesting to watch!


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