Massachusetts judge rules that DOMA is unconstitutional
A Boston judge has ruled that the Defense of Marriage Act (DOMA)– signed into law by Bill Clinton– is unconstitutional because it violates a state’s right to regulate marriage.
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. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state
This is an issue that I am probably going to disagree with quite a few conservatives on– not on the issue of gay marriage itself as I am opposed to gay marriage, but on the ruling itself, which I agree with. As a person who considers himself a state’s right advocate I have a hard time disagreeing with this ruling.
Make no mistake about it, I am personally opposed to gay marriage, I have made these feelings known both in previous posts and in my “About Me” page, but I am more opposed to those that would trample on the constitution than anything else I could be opposed to.
I firmly believe that too much power has been taken away from the states and handed to the federal government, and because of this belief I find it hard to argue against a ruling that reaffirms a state right, regardless of whether I agree with the state on this issue or not.
Having said that, I vehemently oppose the way that gay marriage became law in Massachusetts. The Massachusetts’ court ordered the legislature to write a law that permitted gay marriage; this was a case of the courts blurring the constitutional line on the separation of powers. But on top of that, the legislature never actually wrote a law that permitted gay marriage, yet gay marriage is legal in Massachusetts. I abhor the process in which gay marriage became legal in Massachusetts more than I care about the end result.
Contrast that with the way my state– New Hampshire– made gay marriage legal. The New Hampshire legislature went through the proper procedures to legalize gay marriage. The people elected pro gay marriage legislators– even if they were blinded by hatred of George W Bush and didn’t realize what they were doing– these legislators moved a gay marriage bill forward, and that bill was signed into law by the governor. I do not agree with the law, but it was passed the proper way, therefore I accept it. My only problem with the law is the fact that my governor– John Lynch– lied about his position on gay marriage. All three times that he was running for election he claimed that he was opposed to gay marriage, only to sign it once it made it to his desk– proving to all citizens of this great state that he is nothing more than a liar.
While I have a problem with the governor on this issue, I do not have a problem with the process that sent this bill to his desk even though I disagree with the legislation. The proper procedures were followed and if the residents of New Hampshire disagree with this law they can let their voices be heard in November.
I highlight these two cases because they are close to home so I have been able to follow them very closely in the newspapers and on local talk radio. I think that the difference in the procedure used to pass these laws is striking; one state circumvented the constitution, while the other state followed the proper procedure.
But being the state’s rights advocate that I am, I have to ask the following question: would this same judge rule in favor of letting the states decide whether or not abortion should be legal in their state? I ask this knowing that it is a rhetorical question because the state court cannot overrule the Supreme court, but I still ask it because to me there is not much difference between the issue of abortion and gay marriage when it comes to who the ultimate authority on these issues should be.
I believe that gay marriage is a state’s right issue and I believe that abortion is a state’s rights issue; I believe that Roe vs Wade is bad case law. Yet I believe it would be very unlikely that this judge who ruled DOMA unconstitutional would be willing to rule in the same manner when it comes to abortion. He cites state’s rights when it suits his argument, but would he be willing to assert state’s rights if there was any possibility that he would have to rule on abortion? I don’t think so.
I have been consistent with my position on state’s rights, yet liberal justices continue to pick and chose which issues suit their needs and rule on them accordingly. And that is where my biggest problem is with the justice system today. I believe that the hypocrisy of many justices is on full display here.
All I want is a little consistency here.
America's Watchtower 
I agree with you regarding DOMA and for many of the same reasons. I appreciate your discussion of the way gay marriage was legalized in New Hampshire. The only thing I’d point out in defense of your governor is that his personal preference should be used as the determination of what becomes law and what doesn’t. I remember Governor Cuomo in New York frequently expressed his personal opposition to abortion while pointing out that he wouldn’t use the power of his office to deny a woman the right to make that choice. I do see that he was involved in negotiating the bill’s form, insisting on protection of religious institutions.
I also think you’ve got a good point vis-a-vis abortion. I think it would be good to let the states finally have their debates, and make up their minds. Many states, though, have “poison pill” legislation set to take effect immediately upon the reversal of Roe – legislation that in many cases was passed decades ago. I don’t think today’s residents of any state should be suddenly bound by a law passed so long ago that’s been sitting in cold storage ever since.
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Thanks Georgia Yankee. I seem to remember our governmor promising that he would veto this legislation, it seems to me that he broke campaign promises regarless of his personal opinion.
I don’t think that Roe vs Wade will ever be overturned, therefore the legislation that these states may be holding on to will never go into effect. I do agree though that if Roe vs Wade were overturned it would seem as if states should only then write laws for their states on this issue.
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I feel like a guy here in Texas said a while back, “Let the homos get married, they have as much right to be miserable as the rest of us… ”
Something like that… 😛
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LOL!
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Only problem I have with the ruling is that other states have to recognize it. If two people “get married” in Mass., adopt a child, then they move to Virginia and decide they want “a divorce” , what’s the state of Virginia to do? They have to recognize “the marriage” in order to “divorce” them. Then starts the custody battle. If Virginia does not recognize the marriage, who gets the custody of the child?
PS. Can this judge tell Obama that his lawsuit is against Arizona’s state right? Or do the liberals invoke state’s right only when they want to steal away more of our liberties?
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An interesting point that I hadn’t thought about. I don’t know the answer.
I was going to mention something about the lawsuit against Arizona in my post because it seems these people pick and chose which issues should be state’s rights but I forgot to.
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Christina, what liberty was taken away from the people with this ruling? The right to tell others that they cannot marry the one they love? Not a right I want to have.
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Your point about “full faith and credit” is exceptionally valid, though, and with respect to marriage, states have pretty much been ignoring that clause for pretty much the reasons you put forth, although in the past the issues have been more related to age and race.
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I have to agree as well. States rights must be respected. In the end, I think the gay marriage issue may only be resolved by a Constitutional Amendment. No matter who wins or loses in which state, it will never be settled until there is a definitive win.
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You are probably right but I am beginning to wonder if we will ever see a constitutional amendment again. It seems like the amendment process has been forgotten about altogether.
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Wasn’t the ERA the last one initiated? And the last one ratified, the 27th, sure took its sweet time getting ratified – it was finally adopted by the states in 1992, but it was proposed in 1789 – over 200 years!
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Yeah, it seems that we have somehow gotten to the point where court rulings have replaced the amendment process.
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For once, I agree with you!
The federal government has generally followed state definitions of marriage in handing out federal benefits, and it has never tracked state changes in marriage laws. It simply has asked whether a couple is married under relevant state law. For example, even when the issue of interracial marriage was hotly contested, and only some states permitted it, the federal government recognized those marriages as eligible for federal benefits. Additionally, states have different ages at which people can be married; for example, your state allows a 13 year old female and a fourteen year old male to get married with their parents’ consent, and no other state does. Also some states have different rules for how close a relation a person can marry (first cousins, second cousins, etc.) The fact that some states might object morally to the rules in other states has not prevented the federal government from recognizing these marriages. In this case, however, the federal government is singling out one set of marriages– same-sex marriages– and refusing to follow whatever definitions a state adopts for purposes of awarding federal benefits. This variance from customary practice, and the reason it violates the 10th amendment, shows that the federal government has no rational justification for DOMA.
My question is, if this is appealed and makes it all the way to the Supreme Court, what happens then? It seems that our current conservative Justices would face quite a quandary. Do they uphold the ruling, thus asserting the given 10th amendment rights, or do they trample the 10th (with a twist to what Cristina said) and allow the conservatives to invoke the government’s right only when they want to push their morality on everyone else.
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Don’t feel bad, it had to happen sometime. 🙂
Great comment.
It would be very interesting to see how the Supreme Court would rule on this. I do think that the Roberts’ court would rule in favor of states rights on this, but there is only one way to find out.
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