Don't Forget the Two Republican Judges Who Helped Save Same-Sex Marriage

One struck down California's Proposition 8; the other challenged the Defense of Marriage Act. The road to next week's landmark Supreme Court arguments began with these two rulings in 2010.


Retired U.S. District chief judge Vaughn Walker at a news conference in 2011 (Beck Diefenbach/Reuters)

I don't know about you, but for me, the run-up to next week's Supreme Court same-sex marriage arguments now has the feel of an endless Super Bowl pregame show. The analysis, the speculation, the sidebars, the color, the posturing, the winks and nods to insiders, the profiles -- it just goes on and on, when all anyone really wants is for the arguments to occur, and to be done with, and for the justices to render their decisions the last week of June. That, and for Beyonce to sing the anthem when the justices enter the chamber Tuesday at 10 a.m.

Supporters of same-sex marriage have virtually all the legal, political and cultural momentum going into the arguments over California's Proposition 8 (Tuesday) and the federal Defense of Marriage Act (Wednesday). Justice Anthony Kennedy, who will almost certainly determine the outcome of both cases, therefore has plenty of cover to do what many suspect he wants to do, which is to protect same-sex couples in whole or in part from the discrimination inherent in both the state initiative and the federal statute. It would be very surprising if he did not so rule.

So on the eve of the start of what promises to be a dramatic week in the history of the Court, and also in the history of the gay rights movement in America, and because I cannot think of anything else to mention that someone smarter than me hasn't already covered, I just want to remind everyone waiting for the sanctification to begin that it was two Republican-appointed federal trial judges, at opposite ends of the country, who got all of this rolling three years ago with rulings that vitiated both the legal and factual rationales behind these dubious measures.

Judge Joseph Tauro

On the East Coast, it was U.S. District Judge Joseph Tauro, the Nixon appointee, the revered son of a revered Massachusetts Supreme Court justice, who declared in July 2010 that "no fairly conceivable set of facts" could justify the classification of marriage contained in Section 3 of the Defense of Marriage Act. If this section of the statute really is doomed, it was this ruling, from a judge who now has served 41 years on the bench, that marked the beginning of the end of the heart of the law.

In his 39-page order, Judge Tauro wrote:

This court simply "cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests." Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning.

And where, as here, "there is no reason to believe that the disadvantaged class is different, in relevant respects" from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

Last May, Judge Tauro's ruling in Gill v. Office of Personnel Management was largely affirmed by the 1st U.S. Circuit Court of Appeals. The case was not selected for review by the justices in Washington -- who instead took Edith Windsor's case out of New York. But Gill came first; and it was only after Judge Tauro handed down his ruling, and before the federal courts in New York even began to address the Windsor case, that the Obama Administration changed its position on the constitutionality of Section 3. Judge Tauro, you could say, led the way.

Judge Vaughn Walker

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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