Why the Defense of Marriage Act Is on the Ropes


Credit where due: Nixon-appointee and U.S. District Court Judge Joseph Tauro is the man who struck the mortal blow against the law

Gay marriage demonstrators - Andrew Kelly Reuters - banner.jpg

Sure, public opinion polls show support for gay marriage strong and growing stronger. Yes, the White House has again come out in favor of the repeal of the Defense of Marriage Act. It's true, the Senate Judiciary Committee Wednesday holds a hearing titled "Assessing the Impact of DOMA on American families." Indeed, the end seems near for the beleaguered Clinton-era statute.

But let's make sure we give credit for its looming downfall where credit is due. One man started this ball rolling down the hill. His name is Joe Tauro. As in United States District Court Judge Joseph L. Tauro, one of the most revered federal trial judge in the long, rich history of Massachusetts' jurists. Last July, a mere 53 weeks ago, he struck down the DOMA with a vivid opinion that simply vitiated the rationale for the law.

We wouldn't be where we are today on the Defense of Marriage Act -- the White House backing away from it in court, opponents receding into the background, the Congress on the prowl -- if Judge Tauro had not issued that ruling last July. Or if he had authored a ruling that was less unequivocal than the one he issued. For he didn't just strike down the DOMA. He eviscerated it. And in so doing gave legal and political cover for all that has come since.

No "fairly conceivable set of facts," Judge Tauro wrote back then, could justify the disciminatory provisions of the DOMA. It didn't just violate the Constitution, he wrote, it violated it even under the least restrictive constitutional test. Strong words from a federal trial judge. But then, Judge Tauro is no ordinary judge. He's got chops, you might say, and many admirers among his colleagues on the federal bench.

I would be shocked if the 1st U.S. Circuit Court of Appeals or any other court reverses Judge Tauro on the DOMA. I would be very surprised if Justice Anthony Kennedy, who would be the fifth vote either way on the High Court were this issue to come before it, endorsed the federal statute in these circumstances. The reason the politicians are now hovering over the bloody body of the DOMA is that they understand how badly it's been injured by the judiciary.

Joseph Tauro was appointed to the federal bench nearly 40 years ago by President Richard Nixon. Ironic, isn't it, that a president who spoke so horribly about gays and lesbians would end up leaving a legacy like Judge Tauro. The jurist heard the evidence, evaluated the legal precedent, and then wrote an opinion people will be talking about for generations when they consider the demise of a law the judge declared was a form of official discrimination.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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