What’s Next in the Gay-Marriage Fight?

Marriage-equality advocates scored a victory when U.S. District Judge Joseph L. Tauro in Boston struck down a portion of the Defense of Marriage Act (DOMA), the 1996 federal law signed by President Bill Clinton banning the recognition of same-sex marriage by the federal government, as unconstitutional. “This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote.

Now marriage-equality groups are bracing for a battle if the U.S. Department of Justice appeals. Justice Department spokesperson Tracy Schmaler said the administration was “reviewing the decision” and had not yet determined whether or not to pursue a defense of the law in court, reports ABC News.

But according to Politico.com, “lawyers on various sides of the issue said it was a certainty that the government will appeal and likely that the cases will reach the Supreme Court.”

The decision to appeal should come within the next 60 days, explained GLAD, which argued Gill et al v. Office of Personnel Management et al., one of two separate legal challenges that led to Tauro’s ruling.

Tauro found that Section 3 of DOMA, which states that only a marriage between one man and one woman will be recognized for federal purposes, “plainly encroaches” states’ rights to determine their own definition of marriage and award benefits of federal-state programs such as Medicaid.

“The Court simply affirmed that our country won’t tolerate second-class marriages,” said Mary Bonauto, GLAD‘s civil-rights project director, of the case brought by seven married same-sex couples and three widowers last year who had been denied federal rights and benefits. That case was then followed by a separate suit filed by the Commonwealth of Massachusetts.

One of the lawsuit plaintiffs is Dean Hara, former spouse of late and first openly gay national politician Rep. Gerry Studds, D-Mass. “The couple married in 2004, following the Massachusetts court ruling allowing same-sex marriage. Studds died in 2006. Hara is seeking the federal health benefits normally accorded to the spouses of deceased federal employees,” reports Politico.com.

Although Tauro’s ruling currently applies only to Massachusetts, it may well impact other states if state attorneys challenge the law.

All Eyes on Obama

Gay-rights groups are encouraging Obama to follow through on his campaign promise to repeal DOMA. “While we expect the [Justice] Department to continue to defend DOMA on appeal,” states the Human Rights Campaign, “we urge the Obama administration to push Congress to repeal a law that we know, and Judge Tauro recognized, serves no purpose but to denigrate our families.”
 
What will happen if the ruling is not overturned? “The federal government will have to recognize same-sex marriages performed in states that recognize such marriages, eliminating yet another discriminatory barrier,” stated Rick Jacobs, chair of the Courage Campaign. The California marriage-equality organization began circulating an e-mail petition last week encouraging Obama to direct the Justice Department to not appeal Tauro’s ruling.

Not surprisingly, conservative groups disapprove of the ruling. Family Research Council Senior Vice President Tom McClusky referred to Tauro’s decision as “erroneous” in a statement issued last week. “This decision results from the deliberately weak legal defense of DOMA that was mounted on behalf of the government by the Obama administration, which has called for repeal of the law.”

Likewise, Andrea Lafferty, executive director of the Traditional Values Coalition, called it “judicial activism,” reports The Associated Press.

Same-sex marriage is currently permitted in five states (Massachusetts, Connecticut, Iowa, Vermont and New Hampshire), as well as the District of Columbia.

3 Comments

  • I’m no legal wizard but I don’t think the federal government could apply this standard to just Massachussetts – it would not be a “separable” finding. I would expect it to be applicable to all states that recognize same sex marriage. That said, I think the issue might be better dealt with by the Supreme Court rather than expec the legislative branch to take it up – timing alone makes it unlikely to come to vote in either the House or the Senate and if anyone thinks it likely to happen this close to an election…well, let’s just say that is unlikely as well. We will have to see what the elections do to get a feel for what might happen in the next Congress. At least in the Supreme Court, if they agree to take the case (and that is a big “if”), we could expect to get an answer and not have to worry about getting it done in one 2-year period.

  • Anonymous

    I truly hope that the separation of church and state continues to take place in this heated argument. I am so very tired of having my life dictated by laws based on “religious morals”. I grew up in the Church of Christ in the Bible Belt. I knew I was different from age 3 and let me tell you, I prayed hard for God to remove this “thorn from my side”. But it never happened. Now, I’m 53 and have lived 30 years as a lesbian and have a wonderful relationship with a woman. I think when one decides to share and commit their life with someone, it would constitute being married in anybody;s book. We share everything that a man and a woman would share in a marriage, but yet, we don’t have the privileges or recognition that have been bestowed to them. Why is that? The answer is that religion has not been separated from the law. I feel that the laws put on Gays are like those put upon the Jewish people during the Nazi Regimen. You can’t do this, you can’t do that. We don’t recognize you as a human being with rights. Rights are reserved for “normal” people. Just keep quite and go back into the closet if you can’t be “normal”. Well….Damn It, this is “normal” for me. Accept it and get out of our way.
    Debra Markart

  • Anonymous

    While one of the posters on here said she is sick and tired of having her life based on “religious morals”, I am sick and tired of people wanting to twist things around just to meet their wants. Marriage was religion-based from the beginning of time. Period. The “legality” of it didn’t enter into the picture until many years later when things like benefits, wills, and other legal issues came into the picture.

    Let gays have civil unions that provide them the same rights as married people and that should cover it. However, also make civil unions “stick” such that if someone wants to get out of it, they need to go through similar legal proceedings as heterosexuals go through when getting a divorce.

    Marriage is religious based, and it should remain that way. It’s no different than my saying that I don’t like to call my dog a “dog” because it has negative connotations, so I am going to start calling my dog a “cat” because I like the word better. Get a grip folks.

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