5 Ways Defense of Marriage Act Ruling Could Backfire

A federal judge strikes down the controversial law

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U.S. District Court Judge Joseph Tauro ruled on Thursday afternoon that the defense of marriage act (DOMA) is unconstitutional. Tauro, whose court is in Boston and who was nominated by President Nixon, issued two separate rulings in two separate cases. In the first, Gill vs. Office of Personnel Management, he cited the equal-protection clause. But in the second, Massachusetts v. Dep't of Health & Human Services, he said that DOMA violates the state's rights enshrined in the Tenth Amendment. What will happen next for this controversial law, which legally restricts marriage to unions of a man and a woman? And, for gay rights supporters, is there a possibility that this could backfire?

  • Will Dept of Justice Appeal Decision? ABC News' Jake Tapper reports, "A Justice Department spokesperson said that Obama administration was 'reviewing the decision,' and had not yet decided whether to appeal to defend a law against same sex marriage that President Obama says he opposes. ... the Justice Department has defended DOMA, Justice Department spokeswoman Tracy Schmaler explaining that while President Obama 'has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT (lesbian, gay, bisexual, transgender) couples from being granted equal rights and benefits ... until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.'"
  • Why This Will Backfire and Be Repealed Yale law professor Jack Balkin explains, "in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness- which is certain to twist both liberal and conservative commentators in knots- I do not support the logic. ... In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight." James Joyner adds, "accepting Tauro's interpretation would unravel much of the system that has been built up starting with the New Deal and given credence by more SCOTUS rulings than you can shake a stick at."
  • 'Equal Protection' Ruling Would Be Better Political science professor Steven Taylor says he "assumed the ruling would be based on some combination of the Full Faith and Credit clause in Article IV and the Equal Protection clause of the XIVth Amendment." Because this ruling cites only states' rights, it could "have the effect of reinforcing the constitutionality of same-sex marriage bans that exist in many states." Taylor says that he thinks equal protection remains the best way to challenge DOMA and will ultimately overcome this ruling.
  • How Tauro Set This Up to Force SCOTUS Ruling Legal blogger Dale Carpenter writes, "Either way, I have a hard time believing that DOMA Section 3 will be struck down without some input from the Supreme Court. And taken together, the decisions today present a bit of an irony: what the court giveth to the states in Dep't of HHS (the power to decide for themselves the meaning of marriage, as against Congress) it taketh away from the states in Gill (the power to decide for themselves the meaning of marriage, as against federal courts)."
  • Presents Conservatives With Difficult Choice The Atlantic's Andrew Sullivan revels, "And so one of the principles held most dearly by some of the tea-partiers must logically hold DOMA unconstitutional. ... The right is hoist on their own federalist petard and will now have to choose whether states' rights or marriage inequality is more important to them."
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