Judge Says Federal DOMA Flawed

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Judge Says Federal DOMA Flawed

Special Report - July 9, 2010
In a controversial decision that highlights the impending conflict between federal marriage law and the handful of states that have legalized same-sex “marriage,” a federal judge in Massachusetts has ruled that a section of the federal Defense of Marriage Act (DOMA) is unconstitutional. U.S. District Court Judge Joseph Tauro issued his ruling on July 8 in Gill v. Office of Personal Management, a lawsuit brought by the New England-based Gay and Lesbian Advocates and Defenders (GLAD) on behalf of seven same-sex couples and three widowers who were all “married” in Massachusetts, which is one of five states, plus the District of Columbia where same-sex “marriage” is legal. The homosexual couples argued that Section 3 of the federal DOMA violates the Due Process Clause of the Fifth Amendment by denying them certain federal benefits that are granted to heterosexual married couples. DOMA, which was enacted by a majority of Congress and signed into law by President Bill Clinton in 1996, defines marriage for federal purposes as only between one man and one woman, and protects states from being forced to recognize the same-sex “marriages” of other states where it is legal. Section 3 of DOMA states, in part: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the opposite sex who is a husband or wife.” This provision prohibits same-sex couples from receiving the same Social Security, federal income tax, federal employee and retiree, and issuance of passport benefits as married heterosexual couples. DOMA allows states to make their own determinations on recognition of same-sex marriages and the conferring of marital benefits.

In his decision, Judge Tauro agreed with GLAD’s arguments and ruled that Section 3 of DOMA is unconstitutional. “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,” he wrote. “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.”

Pro-family advocates are hopeful that the judge’s decision will be appealed by the U.S. Department of Justice, which is charged with defending DOMA but has not yet announced its intentions to appeal. “Every court until now that has considered the federal Defense of Marriage Act has found it to be constitutional,” said Mathew Staver, founder of the Liberty Counsel and dean of Liberty University School of Law, in a statement. “This activist decision must be appealed, and when appealed, I am confident it will be reversed.”

If the decision is not overturned, it could adversely impact the DOMA laws of 37 states, including North Carolina, which is even more vulnerable to having its marriage laws challenged because it is the only state in the southeastern U.S. that does not have constitutional language defining marriage as only between a man and a woman. Currently, 30 states have adopted Marriage Protection Amendments that preserve the definition of marriage in their state constitutions. Measures that would give North Carolinians the opportunity to vote on a Marriage Protection Amendment have been introduced for seven consecutive legislative sessions, including the 2010 “Short” Session, but the leadership of the General Assembly has refused to allow the bills to be brought up for consideration.