More Developments in Same-Sex Marriage Litigation

Supporters of same-sex marriage rights are touting two recent rulings by the federal district court in Massachusetts as significant steps toward constitutional protection for state-sanctioned same-sex marriages. In two cases decided on quite different grounds, Judge Joseph L. Tauro ruled that the federal Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages, is unconstitutional. In a case filed by the organization, Gay and Lesbian Advocates and Defenders, the court found that DOMA violates the Equal Protection Clause by denying federal benefits to same-sex married couples while allowing benefits for opposite-sex married couples. The court found that there is no rational basis for treating same-sex couples differently than opposite-sex couples.

In a case filed by the Massachusetts Attorney General, the court found that DOMA violates the Tenth Amendment by encroaching on the authority of the state of Massachusetts to regulate marriage. This states’ rights argument brings a new dimension to the constitutional debate, which had been more focused on discriminatory treatment under the Equal Protection Clause.

Despite statements by President Obama during the 2008 campaign calling for DOMA’s repeal, the Justice Department argued in defense of the statute’s constitutionality. A Justice Department attorney acknowledged in court filings that the Obama Administration disagrees with DOMA as a matter of legislative policy, but nevertheless explained that the Justice Department is obligated to defend the statute in court. The Justice Department has not indicated whether it will appeal the court’s decisions to the First Circuit.

With the release of these decisions, many are even more eagerly anticipating a decision from a federal district court judge in San Francisco in the Proposition 8 case. At issue in that case is the constitutionality of Proposition 8, a 2008 ballot initiative that banned gay marriage in California. A trial concluded in June. Representing two same-sex California couples who want to marry, former solicitor general Theodore Olson urged the court to overturn the initiative, likening the case to Brown v. Board of Education and Loving v. Virginia, a case that overturned a Virginia statute forbidding interracial marriage. Whatever the outcome, an appeal is very likely, one that may end up in the U.S. Supreme Court.

Click here for a New York Times article on the Massachusetts cases.