Federal Judge in Boston Rules Gay Marriage Ban Unconstitutional

U.S. District Judge Joseph Tauro in Boston has declared the 1996 Defense of Marriage Act (DOMA) unconstitutional in two cases. In one case, he found the statute violates the Tenth Amendment. In the other, he found it violates the equal protection guarantee in the Due Process Clause of the Fifth Amendment.

"The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid," Tauro wrote in a ruling in a lawsuit filed by Attorney General Martha Coakley.

In the second case, (opinion here)he ruled:

As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.


The DOMA provision at issue in the equal protection case reads:

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 word “spouse” refers only to a person of the opposite sex who is a husband or wife.

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    jinx :) (none / 0) (#1)
    by CST on Thu Jul 08, 2010 at 05:13:38 PM EST
    any sense of what this means going forward - or for the more high profile case happening in California?

    I assume there will be an appeal of some sort.

    Initial reaction from a quick skim (none / 0) (#2)
    by andgarden on Thu Jul 08, 2010 at 05:15:53 PM EST
    First, great news. NB: this is a Nixon-appointee. Second, too much reference in at least one of the cases to 10th Amendment pablum. Third, shockingly, I can find no reference to Zablocki v. Redhail, which held marriage to be a fundamental right.

    Further reading required.

    Balkin agrees with me (none / 0) (#5)
    by andgarden on Thu Jul 08, 2010 at 07:40:39 PM EST
    Balkin's last sentence is odd. (none / 0) (#6)
    by dk on Thu Jul 08, 2010 at 08:03:07 PM EST
    I can understand why he predicts that the decisions will be overturned.  I can also understand why he thinks that the 10th amendment opinion should be overturned. But, it seems contradictory to me that he agrees that DOMA is irrational but yet thinks that the equal protection decision should be overturned.  

    I think Balkin needs to make up his own mind whether he really thinks that DOMA is irrational.


    I think it's because he's constrained (none / 0) (#7)
    by andgarden on Thu Jul 08, 2010 at 08:09:22 PM EST
    by his own theory of Constitutional change. I disagree with him beyond his 10th Amendment analysis.

    "Affirmed on other grounds" seems like a perfectly plausible result here.


    "irrational prejudice" (none / 0) (#3)
    by diogenes on Thu Jul 08, 2010 at 07:21:14 PM EST
    How about irrational prejudice against polygamists, then, or is it that our deeply held moral beliefs are "rational" whereas things we find immoral are "irrational"?

    Have you read the opinions? (none / 0) (#4)
    by dk on Thu Jul 08, 2010 at 07:37:25 PM EST
    Hint:  Can you name a state in which polygamy is legal?

    Hint (none / 0) (#10)
    by diogenes on Fri Jul 09, 2010 at 06:56:57 PM EST
    Twenty years ago you could have said "Can you name a state where gay marriage is legal".
    If you want to legalize gay marriage then do so through the legislative process at the federal level with a Congressional action.  The Democrats control both houses of Congress and the presidency; it should be easy to do.  

    Again you missed the point (none / 0) (#11)
    by dk on Sun Jul 11, 2010 at 01:02:12 PM EST
    and aren't giving an indication that you read the rulings.

    Gay marriage IS legal now, in five states.  The federal government is unconstitutionally refusing to recognize the existence of these marriages.


    The polygamy argument is .. (none / 0) (#9)
    by nyrias on Fri Jul 09, 2010 at 01:26:48 PM EST
    getting old.

    The only reason that polygamy was so disturbing in the past is because usually it was forced upon young women.

    If a bunch of ADULTS, male & female, decided that they would want to live together and have whatever fun inside their house, I don't see anything wrong with it. I don't want to do it myself, but it does not mean that i would condemn others who do.


    Erwin Chemerinsky, Dean of UC Irvine, (none / 0) (#8)
    by KeysDan on Fri Jul 09, 2010 at 11:26:44 AM EST
    is more persuasive than Professor Blakin, in my view.  Dean Chemerinsky was supportive of the logic of the two opinions, with both working together to establish a broad right of marriage for same sex couples.  "The issue is.. does the government have a rational basis for treating same sex couples differently from heterosexual couples?"  His analysis is that DOMA, therefore is unconstitutional and conditioning of federal funding on compliance with DOMA is unconstitutional.   In my view, this is a great victory for civil rights.  Of course, we can be sure that the Obama administration will appeal.