Friday July 9, 2010

Federal Judge Rules Fed Gay ‘Marriage’ Ban Unconstitutional

By Kathleen Gilbert

Updated: 07/09/10, 15:09

BOSTON, MA, July 9, 2010 ( – A federal judge in Boston has ruled that the federal Defense of Marriage Act (DOMA), which enshrines in law the definition of marriage as between one man and one woman, is unconstitutional.

Judge Joseph Tauro claimed in a ruling Thursday that DOMA violates the right of homosexual couples to equal protection under the U.S. Constitution.

“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,” wrote the judge.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state.”

The ruling, although not entirely without precedent, marks the first time a federal judge has attacked the law in a ruling that holds significant legal weight. In February 2009, Judge Stephen Reinhardt of the 9th Circuit Court of Appeals also declared DOMA unconstitutional, but did so in a ruling regarding an internal judiciary dispute. Such a ruling does not carry the weight of precedent, as would a decision on a lawsuit.

Two suits had been placed before the court challenging DOMA, one brought by Boston’s Gay and Lesbian Advocates and Defenders, the second by Massachusetts Attorney General Martha Coakley.

In the ruling pertaining to both suits, Justice Tauro wrote that “the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest.”

The U.S. Justice Department has so far declined to comment on the ruling, saying that the decision is being reviewed.

Lisa Barstow, a spokeswoman for the Massachusetts Family Institute, said that while her organization was “really distressed” over the decision, the future of DOMA would rely heavily on how Obama’s Justice Department (DOJ) chooses to respond.

“We expect that [the DOJ] will appeal; whether they will appeal with gusto is what we are looking at next,” Barstow told Barstow said that there “are a number of holes” in the judge’s decision that could easily be overturned if the DOJ chooses “to appeal this in a meaningful way.”

Attorney General Coakley, who made headlines earlier this year as the U.S. Senate candidate unexpectedly edged out by Republican Scott Brown, applauded the ruling Thursday. She called the decision “an important step toward achieving equality for all married couples in Massachusetts.” Massachusetts was the first U.S. state to legalize same-sex “marriage.”

The attorney general’s suit had attacked DOMA by claiming it violated the Constitution by interfering with state authority, in addition to violating the equal-protection clause.

“Today’s landmark decision is an important step toward achieving equality for all married couples in Massachusetts and assuring that all of our citizens enjoy the same rights and protections under our Constitution,” Coakley said in a statement. “It is unconstitutional for the federal government to discriminate, as it does because of DOMA’s restrictive definition of marriage. It is also unconstitutional for the federal government to decide who is married and to create a system of first- and second-class marriages.”

Posting on Twitter, House Speaker Nancy Pelosi called the ruling “great news!”

The ruling, if upheld by an appeals court, has the potential for a far-reaching impact on other present and future same-sex “marriage” cases across the country, including the ongoing case against California’s Proposition 8. If upheld by the Supreme Court, the case could become the “Roe v. Wade” of the marriage battle by creating a “right” to same-sex “marriage,” nullifying the will of dozens of states that had approved amendments and laws protecting marriage.

Massachusetts Family Institute president Kris Mineau called the decision “another blatant example of a judge playing legislator.”

The question of same-sex “marriage,” when put to citizens, has failed every single time. “This is why their strategy is to force same-sex ‘marriage’ through judicial fiat, as they did here in Massachusetts and other states,” said Mineau in a statement, adding that he was “confident” the Supreme Court would uphold the law.

However, DOMA is likely to face a tough battle in the Supreme Court, especially in light of the nomination of Elena Kagan. Should Kagan be confirmed to the highest court in the land, she would bring another certain vote in favor of striking down the law, as she has already come out strongly in favor of the homosexualist agenda.

In addition, pro-family leaders have pointed to a controversial brief authored under Kagan as U.S. Secretary General, in which the legal defense for the law was gutted by rejecting the ideological basis for maintaining marriage as between a man and a woman. Instead, the brief acknowledged that the Obama administration considers DOMA “discriminatory, and supports its repeal,” before arguing that the plaintiff in the case lacked standing.

Brian Brown of the National Organization for Marriage noted in May that the brief “explicitly and gratuitously rejected the key legal defense” for DOMA: “that such unions uniquely protect children by encouraging responsible procreation.” Following Thursday’s ruling, Brown lamented that, thanks to Kagan’s brief, Obama’s justice department has already “deliberately sabotaged this case.”

“With only Obama to defend DOMA, this federal judge has taken the extraordinary step of overturning a law passed by huge bipartisan majorities and signed into law by Pres. Clinton in 1996. A single federal judge in Boston has no moral right to decide the definition of marriage for the people of the United States,” said Brown.

Maggie Gallagher, Chairman of NOM, was more optimistic in light of the judge’s argument: she noted that “the right of the federal government to define marriage for the purposes of its federal law and federal territories has been clear since the late 19th century, when Congress banned polygamy.” “Only an incompetent defense could have lost this case. We expect to win in a higher court,” she said.

Mathew Staver of Liberty Council also said that he was “confident” the ruling would be reversed on appeal.


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