I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not-- and I do not-- Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge-- who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are--is in a very different position than I am.
Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.
David Kopel agrees:
Balkin is right to point out that the new federal health control law could be found unconstitutional by any court which applies the Tenth Amendment as seriously as did Judge Tauro.
On the whole, I don’t think Gill is one of the stronger judicial opinions supporting SSM. Its reasoning is too cursory. It doesn’t rely on the more obvious and to me more defensible argument: that discrimination against gays and lesbians is constitutionally suspect, deserving strict scrutiny. And unless reversed by the First Circuit, Gill could turn out to be a short-lived and expensive victory for SSM when it reaches the Supreme Court (assuming the Prop 8 case doesn’t get there first).
Balkin writes that the ruling is "way ahead of the national consensus on the the equal protection issue." Probably. As Gabriel Arana reported, that's certainly a concern moving forward with Perry v. Schwarzenegger. But the window of time during which Democrats equivocate by supporting civil unions instead of marriage equality is coming to a close -- at some point soon those politicians sitting on the fence are going to have to pick a definitive side and risk the political consequences of either alienating the LGBT vote or their other, more religious core constituencies. That may happen before there's a genuine "national consensus" in favor of marriage equality.
A key question is whether the Obama administration will appeal the ruling, and, as Jake Tapper reports, they probably will.
The effect of the decisions will probably be put on hold during the course of the appeal.
The decisions only affect sections 2 and 3 of DOMA -- the federal benefits part. It does not require interstate recognition of marriage equality. People married in Massachusetts will still get no respect in Florida.
The decisions also only affect people in Massachusetts, though that could expand on appeal. The decisions are probably not retroactive, so that people who paid extra taxes or were denied federal benefits based on DOMA will probably not be able to get their money back.
I think this decision puts the folks who have been saying “let the states decide,” while really opposing marriage equality, in an interesting position. The ruling says that the Federal government has to respect state decisions on this even if a state decides to recognize same-sex marriages. Now most of those folks will have to come up with some rationalization to explain why when they said they wanted the states to decide, they didn’t mean that they wanted the states to decide.
Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.
I have now read Hadley Arkes' response. I'd like to quote it, but it doesn't seem to grapple with the issues at all. It relies on definitional arguments about "marriage" - arguments that have actually already been resolved in Massachusetts and upheld by its legislature, governor and Supreme Judicial Court. And there is no discussion as to why a state should be prevented by the federal government from providing full equality to its citizens, without violating core principles of federalism. Arkes seems to imply that because the federal courts struck down miscegenation bans, the federal government can enforce - against state law - inequality for gay citizens and non-citizens. Maybe you can understand his case better.
It seems to me that, however this plays out in the courts, the reasoning in these cases, and the principles they inject into the discourse, are helpful. It does seem to me bizarre that I am married in both my places of residence - DC and Massachusetts - and my marriage license is identical to every other straight couple's. But the federal government - in a way unique in its entire history - refuses to acknowledge these clear state licenses solely on the basis of the fact that I'm gay.
The federal government is both refusing to recognize what it always recognized, and creating a two-tier system where gay couples are officially designated as worth less under the law than straight ones. And this is the position of the Obama administration. And they say they are pro-gay. They aren't. They like us kept very firmly in our place. And they will now argue in the courts that second class citizenship for two percent of the population is a principle they embrace and will continue to advance - even when the states have decided otherwise.
That's their prerogative. But they're full of it. Their position on marriage is about as coherent as their position on Afghanistan.
(Photo: Same-sex couple Alexandra Khalaf (R) and Amy Sokal share a monent after they exchanged vows during a group wedding March 20, 2010 at the Andrew W. Mellon Auditorium in Washington, DC. Ten same-sex couples participated in the mass wedding after the nation's capital became the sixth place in the nation that recognized same-sex marriage. By Alex Wong/Getty Images.)