Federal DOMA Ruled (partially) Unconstitutional

(I’ve always believed DOMA was in violation of the U.S. Constitution’s full faith and credit clause.  This decision — coupled with the trial chyallenging California’s anti-gay marriage referendum — could have a major impact on constitutional law in this field. – promoted by Voyageur)

Look for gay marriage to be moved up the list of “hot political issues” for elections in November.  


This ruling affects only if the Federal Government is required to recognize marriages performed in the 5 states and DC that permit marriages between individuals of the same sex.  The judge ruled that everyone, including gays and lesbians, is entitled to equal protection under the law.

Coming on the heels of Governor Lingle’s veto of Hawaii’s proposed domestic partnership law, this is another example of gay civil rights taking a step forward as it takes a step backwards.


35 Community Comments, Facebook Comments

  1. ThillyWabbit says:


    “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.

    • EmeraldKnight76 says:

      finally being used for good. By using the 10th Amendment this judge has pulled the teeth of all the RWNJ who are constantly crowing about State’s rights. Brilliant.

    • Automaticftp says:

      I tend to think it will not, because cases relying on the Tenth Amendment are usually (not always, but usually) losers.  I’ll have to study the decision and post more later.  

      I would like to think the decision will survive on appeal, but I have my doubts, even in the First Circuit.  

      • Alone, this 10th Amendment judgment might not stand.  But together with the 5th Amendment ruling also handed down by the judge, I think it has a decent chance.

        It’s an interesting ruling to be sure; Section 3 of the DOMA, according to the 10th Amendment ruling, tells States – who have the right of certifying marriages (clearly settled law, the exception being when the State’s actions violate civil rights) – that by recognizing gay marriages the Federal government will defund the matching grants for many State benefit programs.  This has the effect of interjecting the Federal government into the State right of marriage.  And the 5th Amendment ruling says it does so in such a way that blatantly violates equal protection for no reason other than discrimination (the gay couples are already married after all – in this case the DOMA cannot be a deterrent to homosexual marriages…)

        • Automaticftp says:

          As I said, I HOPE they stand, because I agree with the result.  I personally think it absurd to deny marriage to people because they are homosexual–there may be a dumber reason to discriminate against someone, but I have yet to hear it.  

          That said, from what I’ve seen, it’s an interesting argument, but I think the problem is that homosexuals are not a protected class.

          The federal government has long had the ability to offer states money with strings–a lot of federal money that goes to the states is conditioned on the states taking a certain action–for example, lowering the BAC for a DUI to .08.  That is a powerful hook that the federal government can use to influence, or even control, state laws.

          • Both of these rulings find that DOMA (at least Sec. 3) does not hold up to a rational basis argument – the same finding that struck down Romer (CO Amendment 2).  Rational basis is the requirement for non-protected classes.

            And I agree, the Feds have broad authority to say “do this” or “don’t do that” by witholding money, but this law does so in a way that, according to the judge, “splits one group [married couples] into two [straight and gay married couples]”, and does not provide a rational basis for doing so.

            Read the opinions.  I’ve only read bits myself, but the judge does a pretty thorough take-down of the arguments in favor of DOMA.  Remember, too: now that the case is decided, the facts of the case are pretty much set in stone – the appeals courts will only rule in legal interpretations.  (This is actually the strength of the Prop 8 case, too – the defendant-intervenors presented probably the worst case they could have made, with few if any facts to back them up; if the judge rules against them, they will have a hard time appealing based on the case record.)

            • Automaticftp says:

              And having cursorily read both decisions, I can see a path to appellate survival.  It’s clear Judge Tauro is already appealing to Justice Kennedy . . .  

  2. salbahe16 says:

    inally being used for good. By using the 10th Amendment this judge has pulled the teeth of all the RWNJ who are constantly crowing about State’s rights. Brilliant.

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  3. botw says:

    Very glad you are following this issue.  I agree that between this decision and the California one, this is a hot issue.

    I’m with you on DOMA.  It’s also a major wedge issue for the other team.

  4. Dan WillisDan Willis says:

    I haven’t read the whole decision yet, but it appears to only address the issue of the federal govenment having to recognize a same-sex marriage that was legally perfomed by state law. This is still good, it will allow smae-sex spouses SS benefits, joint tax filing, etc.

    One major issue still hanging out there is the recognition of same-sex marriages by other states.

    Most states have now included in their anti-same-sex marriage laws that they will recognize such marriages legally performed elsewhere. In my mind, this a direct violation of the Full Faith and Credit Clause of the Constitution.

    Full Faith and credit has been used by the SCOTUS in the past to strike down laws forbididng interracial marriage and to enforce divorce decisions across state lines. So there is precendence already.

    • VoyageurVoyageur says:

      Most states have now included in their anti-same-sex marriage laws that they will recognize such marriages legally performed elsewhere. In my mind, this a direct violation of the Full Faith and Credit Clause of the Constitution.

        Did you mean  “now included in their anti-same-sex marriage laws that they will NOT recognize such marriages legally performed elsewhere.”

        If they specify they won’t recognize same sex unions in other states, I think that is a violation of the Full Faith and Credit Clause.  Of course, DOMA purports to give states the right to disregard that particular action of other states, which is why I think DOMA is unconstitutional.

        Did you just leave out the word “NOT”?

      Or am I missing something.  

    • Arvadonian says:

      though that FF&C is not “universally” applied with marriages though.  For instance, different states have different definitions of at what age a person can be married and if a couple is married in one state where the legal age is 14 and moves to another state where the legal age is 18, their marriage may not be recognized by the second state.

      • raymond1 says:

        FF&C is interpreted as having exceptions allowing states to deny recognition to some other states’ marriages… but that’s not what THIS ruling was about.

        This ruling was on two grounds (I’ve skimmed/read them):

        (a) violates equal protection – DOMA violates equal protection rights of gay couples because it lacks a rational basis; and

        (b) exceeds congressional power – Congress lacks authority under its spending power (the only power it cited as authorizing DOMA), and is barred by the 10th Amdt from trying, to withhold $millions from Massachussetts for applying a certain definition of marriage (MA lost lots of health care and military burial and other funds for gay couples it recognized as married).

      • pat steadman says:

        the Full Faith & Credit Clause gives us a general rule that if a marriage was valid where it was performed, it shall be valid and recognized in the other states.  The exception to this rule is situations where the marriage violates the “strong public policy” of the state that doesn’t want to recognize it, whatever that might be.  

        The so-called “mini-DOMA” laws that most states have enacted use this language to try and come within the exception.  This is a murky area of law that appears more results-oriented than one where the courts have given us a bright-line rule that can be easily applied.  

        “Strong public policy” would not allow a state to ban interracial marriages, but whether a ban on same-sex marriages could survive is an open question.  Judge Tauro may have laid the groundwork for getting the answer we want to that question.  Stay tuned…


        • raymond1 says:

          … most of the Supreme Court cases are 100 years old, so there’s no telling what the Sup Ct would do now.  As with most individual rights cases, it probably depends on which side wins Justice Kennedy’s sympathy.

      • Dan WillisDan Willis says:

        Where I grew up (eastern Ohio), it was common for teenagers to elope to West Va. to get married because the age of consent was younger there and they could get married without parental consent. When they returned to Ohio, they were legally married and no could do anything about it.

  5. EmeraldKnight76 says:

    but I am. I really want to thank the various posters who are also (or seem to be) lawyer and are posting their understanding of what these rulings mean. The various talking heads that covered it didn’t do a great job of making it very clear. I know none of this really applies to Colorado, but one day it might.

    So thanks for sharing your knowledge with someone who was confused!

    • EmeraldKnight76 says:

      Never eat dinner while trying to post at the same time. 😉

    • Ralphie says:

      But “out” as a guy who has been with the same woman for nearly 30 years.

      As far as what you do in your spare time, I care as little about that as what you should care about what I do in my spare time.

      It simply doesn’t matter.

      • Pam Bennett says:

        Everybody should have the solid Colorado value of “live and let live”.  However, there are many out there who believe in being in everybody’s bedroom.  In fact there are some who believe the way to deal the teh Gay© is to round up every gay and put them in “jail”, occasionally written with a provisio that if gay they should be executed.  These are the finest of the Christians there are around.

        The hate is being exported world wide.  Uganda is one such country.

        So while you and many others don’t care there are way too many others more interested in causing serious damage to LGBT people.  

    • ThillyWabbit says:

      We are FLAWless. **Snap**

    • Arvadonian says:

      applying in Colorado.

      Could one of the helpful attorneys answer this question:

      My partner and I travel to Iowa and get hitched…we then travel back to our home in Arvada.  While our new nuptials are not recognized in Colorado, it is recognized in Iowa (and the a few other states) and based on my understanding of this ruling, the feds must now recognize it as well.  So we can file joint federal tax returns and reap all of the benefits our married straight friends enjoy from the federal government even though Colorado still renders us second class.  

      • VoyageurVoyageur says:

        1-Unless you are an unusual gay couple, those “tax benefits” consist of a sizable “marriage penalty.”   (two single personal exemptions are a lot bigger than the personal exemption for married filing jointly.)  The exception would be one of you had little or no income (the common situation when the law was written on the assumption that the wife was stay-at-home and earned little cash income.

         2- A district court ruling outside of Massachusetts is not mandatory precedent anywhere but in Massachusetts.  It would be only persuasive (non-binding) authority elsewhere.   Unfortunately, the Supremes would have to rule to clear up the diversity of opinions in the various circuits and districts on this point.

          Does Iowa have a residence requirement for marriages?   If I recall correctly, Massachusetts does, which prevents it from being a Las Vegas style fly-in and marry state.   If Iowa has no residence requirement, it could develop quite a tourism industry.

          Iowa fascinates me as the only state that both recognizes gay marriage AND common law marriage.  It would be fascinating to see if two gay men or Lesbians in that state declared a common law marriage.    

        • VoyageurVoyageur says:

          but have studied common law marriage extensively as a paralegal.

        • VoyageurVoyageur says:

          A district court ruling outside of Massachusetts is not mandatory precedent anywhere but in Massachusetts.

           Should have said

          A district court ruling IN Massachusetts is not mandatory precedent anywhere but in Massachusetts (and, at that, only in the district involved.  Some big states have several federal judicial districts.)  

      • Aside from the Mass-only impact of the ruling, what the Judge essentially said is that if you live in a state that recognizes gay marriages, then the Federal government may not deny those couples benefits based on DOMA.

        Since you don’t live in a state where your marriage is recognized, you’re SOL.

        The corollary that would help you is the Full Faith & Credit discussion being held elsewhere in this diary.

        • EmeraldKnight76 says:

          The only thing the Mass. ruling did for us in Colorado is set precedent.  Hmm…I’m not sure that’s right either. Can you tell I’m not a lawyer? I have seen a lot of Law & Order though. 😉

          Arvadonian – Congrats on your marriage. My partner always shrugs and says “what’s the point?” He’s a bastard that way.

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