Friday, July 9, 2010

Which Way Will The Chips Fall?...

If you haven't been keeping up with the rather momentous news that, Yesterday, a Massachusetts District Court Judge Ruled that DOMA(the defense of marriage act) violates the U.S. constitution. On the one hand I want to offer a hearty WAHOOO!...on the other, I am saying, "well duh...haven't we been telling you this all along?".

The decision was handed down by Judge Joseph Tauro of the the U.S. District Court of the District of Massachusetts, for the cases of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health and Human Services. In his rulling, Judge Tauro explains his decision:

“indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.”

This is a fabulous outcome by itself and one to celebrate. However, I was looking at this as only one step of a much larger journey up the federal court system....much like California's Perry v. Schwarzeneger will likely be. However, the story takes an ironic twist...and this is where our fierce advocate will have to show his true colors...

The next stage depends on the Obama administrations Department of Justice. They now have the option to  defend DOMA in which case it would move to the First Circuit court of appeals and eventually to the Supreme Court, or to chose NOT to defend which case the rulling will be accepted in Massachusetts at first....with other states expected to follow soon after by court order. Either way, this could be a catastophic blow to DOMA as well as to the anti-gay groups that defend it and all the many state bans on same-sex marriage. Wow... Talk about a Cliff hanger....

All eyes are on the White House now which has declined to offer any statements about their intentions. I'm sure the President is weighing his rather short list of options as we speak. Either allow his DOJ to continue to defend the law as they have been doing for months now by releasing discriminatory and inflamatory statements about the character of LGBT people in their legal briefs. This would be the final straw for many in the gay community who have not been willing to give up on the Presidents promises of "Change you can believe in". Even if he reasoned that it is his job to defend the laws of the land many GLBT people will see it as the last broken promise. In this event, next step is back to court....or...If the President could take option b: step up and give teeth to his on record statements about DOMA's discriminatory nature by directing his Department of Justice not to challenge Judge Tauro's ruling. Given that President Obama has NEVER reigned in the Department of Justice...even when it likens us to pedophiles...I doubt this course of action is likely.

Whatever will shake out of the this, the internet is abuzz with speculation. The predominate opinion being that the President and DOJ will move to challenge the ruling as it will alienate the fewest possible voters...which means they will have judged the gay vote to be small enough to be expendable. Another interperatation is that a move to appeal could be seen as an attempt to move the case closer to the Supreme Court and eventually out of the Presidents hands...this would be a rather complicated passing of the buck in an effort to resist making a stand on same-sex marriage.

No matter which way the chips fall at the White House...I will be watching from the edge of my seat...

For those who would like an inspiring read, please check out judge Tauro's full judgment here

and...and excellent analysis of events by Lawless Lawyer

Until next time dear readers...


  1. One thing I've been wondering about the Massachusetts case: the refusal by the CA government to defend Prop. 8 led directly to its defence by the Religulous Reich; if the federal government chose not to appeal the MA case, could a similar NOM-led coalition do so? It seems to me that having Obama's team do an appeal is greatly preferable to having Maggie Gallagher & co. do one - Obama has a vested interest in seeing an appeal fail. Indeed, that may be why some commentators are claiming the defence was poor: if Obama can block the Religulous Reich from having a direct hand in what goes on inside the courtroom he can use the case to gut DOMA judicially, making it easier to repeal later on. It's a clever tactic, because it means he expends less political capital on the issue than a direct assault but still gives gays the result we want: the abolition of DOMA. It also makes it very difficult for the GOP to resurrect DOMA afterwards - the only option would be as a constitutional amendment, something which has already been defeated.

  2. I honestly think it's best for this case to go to the Supreme Court. I understand that it'll make alot of other gay people happy if Obama decided not to defend it, but then what stops another State Supreme Court from ruling in DOMA's favor? Then what happens? My guess is Confusion. So i see him not defending it as a quick fix. And those hardly ever work out.

    I understand that the stakes get raised the higher up you go (in the court process)and that makes alot of people uncomfortable. A defeat at the top could set us back aways. But a quick fix can't be the answer either.

    I've read alot of articles about this court's decision and they all talk about how DOMA violates the 14th amendment, which calls for equal protection. And i couldn't agree more.
    I'm happy our community is standing up for equal protection; but i think it might wiser for us to focus less on the 14th amendment and more on the Full Faith and Credit clause.
    I think it provides for a much more solid defense. The 14th amendment often makes people (myself included) have to argue from emotion. We have to get into how exactly DOMA discriminates against us and how we aren't being protected. I don't know if thats going to be enough to win people over.

    When you argue that DOMA violates the Full faith and credit clause, you deal with facts, not emotion.

    Sorry if this was just one long rant, or if i pissed anyone off by saying i think this should go to the Supreme Court. But we're playing against a very manipulative group. And in order to beat them, we have to play chess not checkers.

  3. I am really happy for the married same sex couples now in Mass. From what I understand they now can file federal income taxes jointly and receive social security benefits which you and Jay-even though you are legally married in CA- cannot...
    I hope this wave of equality reaches every state in this country. This whole "patchwork quilt" of states and rights is so unfair and unconstitutional.

  4. I do not think Obama will back down and let this decision be. He may advocate equality, but what he said in the debates for the Democratic Nominee was clear: "I feel people should be treated equally, but I do not want to tread on the religious communities at all. That is why I would not support Gay Marriage." Not a direct quote, but the general feel is there. Don't expect any help or hope from the Commander-and-Chief.

    I do agree with Derrick about the Supreme Court, but you have to realize that because we live in a Republic, absolutely NOTHING is permanent. Even the immutable Constitution has been 'amended,' so in the end if the Supreme Court found in our favor, that does not guarantee anything. Which, of course, is not to say that all these laws and Court decisions are worthless: just that without public opinion's assistance, nothing would be preserved.

    Let us cross our fingers and hope that everything resolves for the better!

  5. I definitely agree with Anonymous when he (or she) says nothing is permanent but a victory at the Supreme Court level will set a precedent that can not be easily changed. Look at Roe v Wade, abortion is still the same controversial topic it's always been, but the Roe v Wade decision still stands.