Written by Skeeter Sanders   

As One Federal Court Declares Defense of Marriage Act Unconstitutional and Another Prepares to Rule on California's Proposition 8, a Final Decision by the Nation's Highest Court on Whether Gay and Lesbian Couples Have the Same Fourteenth Amendment Constitutional Right to Marry as Interracial Couples Have Is Not Only Inevitable, But Necessary



By SKEETER SANDERS

For more than three years now, this column has argued repeatedly that laws that bar gay and lesbian couples from marrying were unconstitutional, based in part on a landmark 1967 Supreme Court ruling that struck down, under the equal-protection clause of the Fourteenth Amendment, similar laws that barred interracial couples from marrying.

This column has also argued that to restrict marriage to opposite-gender couples only was -- and is -- an equally unconstitutional enshrinement into state and federal law of a religious doctrine that condemns homosexuality, in violation of the First Amendment separation of church and state.

No one else has made the church-state argument. But now, for the first time, a federal judge has come to the same conclusion as this column with regard to the Fourteenth Amendment.

Ruling in a lawsuit brought by several married same-gender Massachusetts couples against the federal Defense of Marriage Act of 1996, Judge Joseph Tauro of the U.S. District Court in Boston declared that DOMA, as the law is commonly known, unconstitutionally deprives married same-gender couples in Massachusetts of federal spousal benefits enjoyed by their opposite-gender counterparts, in violation of the equal-protection clause of the Fourteenth Amendment.

Judge Tauro was appointed to the U.S. District Court for the District of Massachusetts in 1972 by President Richard Nixon. At 79 years of age, he is the last Nixon appointee still active on the federal bench.

CONSTITUTION 'DOES NOT TOLERATE TREATING CLASSES OF CITIZENS DIFFERENTLY'

"The [U.S.] Constitution neither knows nor tolerates classes among citizens," Judge Tauro wrote. "It is with this fundamental principle in mind that equal protection jurisprudence takes on governmental classifications that affect some groups of citizens differently than others.

"And it is because of this commitment to the law’s neutrality where the rights of persons are at stake that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny," the judge continued.

Judge Tauro flatly rejected the contention of same-gender marriage opponents that one of the purposes of DOMA's denial of federal recognition to same-gender
marriages was to "encourage responsible procreation and child-bearing," citing the federal government's own admission that "this objective bears no rational relationship" to the enforcement of the law, "as a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents."

DOMA 'USURPS AUTHORITY OF STATES TO SET OWN MARRIAGE LAWS'

In a separate lawsuit brought by the Massachusetts state attorney general against the federal government, Judge Tauro ruled that DOMA also unconstitutionally encroaches on the longstanding authority of the states to set their own marriage laws -- an authority that, the judge said, dates back to the colonial era.

Same-gender marriage has been legal in Massachusetts since 2004, after the state's highest court ruled that gay and lesbian couples had a right to marry under the equal-rights amendment of the Bay State's Constitution.

"This court has determined that it is clearly within the authority of the Commonwealth [of Massachusetts] 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."

The judge wrote that control by the states over marital status actually pre-dates the Tenth Amendment of the Constitution, which says that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

During the colonial era, "colonial legislatures, rather than [the British] Parliament [in London], established the rules and regulations regarding marriage in the colonies," Tauro wrote. After independence, "the founding legislation of each state included regulations regarding marital status determinations."

The issue of marriage, Tauro wrote, "was not raised" when the framers of the Constitution gathered to define the powers of the federal government. "The states had exclusive power over marriage rules as a central part of the individual states’ 'police power' —- meaning their responsibility (subject to the requirements and protections of the federal Constitution) for the health, safety and welfare of their populations."

GAY-RIGHTS ADVOCATES ELATED, CONSERVATIVES OUTRAGED

Reaction to Judge Tauro's ruling was predictable, with gay-rights advocates hailing it and conservatives condemning it.

Mary Bonauto, an attorney for the Boston-based law firm Gay and Lesbian Advocates and Defenders (GLAD) -- who represented seven married same-gender couples and three widowers from Massachusetts (including Dean Hara, the widower of the late former U.S. Representative Gerry Studds) -- called the ruling a simple affirmation "that our country won’t tolerate second-class marriages." The decision, said Bonauto, "will make a real difference for countless families in Massachusetts."

It was GLAD's second major court victory on the issue. The firm successfully argued before the Massachusetts Supreme Judicial Court that gay and lesbian couples had a right to marry under of the equal-rights amendment (Article CVI) to the Massachusetts Constitution, which bars discrimination "because of sex, race, color, creed or national origin."

Massachusetts Attorney General Martha Coakley, who brought the second suit against DOMA on Tenth Amendment grounds, also hailed Judge Tauro's ruling. "Today’s [Friday'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."

Not surprisingly, social conservatives reacted with fury. Andrea Lafferty, executive director of the California-based Traditional Values Coalition, called Tauro's ruling "judicial activism" and said Tauro was a "rogue judge. We can't allow the lowest common denominator states, like Massachusetts, to set standards for the country."

The TVC is one of several conservative groups fighting to preserve California's Proposition 8, a voter-approved amendment to the California Constitution that bars same-gender couples from marrying. A federal judge in San Francisco is preparing to rule on a Fourteenth Amendment challenge to that measure.

Tom McClusky, senior vice president of the right-wing Family Research Council, said the rulings result in part from "the deliberately weak legal defense of DOMA" that the Obama administration mounted on behalf of the government.

"While the American people have made it unmistakably clear that they want to preserve marriage as the legal union of one man and one woman, liberals and activist judges are not content to let the people decide," McClusky said in a statement.

THE FOURTEENTH AMENDMENT CANNOT BE IGNORED

This column's only concern with Judge Tauro's ruling regarding the Tenth Amendment is that the very argument used by the Commonwealth of Massachusetts against DOMA can be used by other states to preserve their laws banning same-gender marriage. The Obama administration has said only that it was reviewing the decision, but it's a safe bet that it will appeal to the U.S. Supreme Court.

If the administration was smart, it would leave the judge's ruling on the state's lawsuit alone and appeal only the ruling on the GLAD lawsuit, as GLAD, in the opinion of this column, has a much stronger constitutional argument.

A Supreme Court decision against DOMA on Fourteenth Amendment grounds would all but doom Prop. 8 and all other state laws banning same-gender marriage to the same constitutional fate as those old anti-miscegenation laws, mostly in the South, that banned interracial marriages.

Given the court's ideological makeup -- with four hard-line conservatives (Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts), three liberals (Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer), one moderate conservative (Anthony Kennedy) and, pending her confirmation, Elena Kagan (who's been targeted for defeat by hard-line social conservatives), any ruling on same-gender marriage by the high court is all but certain to be 5-4, either way.

Consider the fact that it was Kennedy who wrote the majority opinion in two high court rulings won by gays (Romer v. Evans in 1996 and Lawrence v. Texas in 2003), as well as a concurring opinion in a third case favorable to gays handed down just last month (Christian Legal Society v. Martinez).

Add to that mix the fact that Kagan, President Obama's nominee to succeed retired Justice John Paul Stevens, publicly spoke out at her confirmation hearing against "Don't Ask, Don't Tell," the 1993 law passed by Congress that bars gay and lesbian U.S. military service members from openly acknowledging that they are gay and remain in the military.

While Kagan's views on same-gender marriage are unknown, this column firmly believes that there is likely to be a 5-4 majority on the Supreme Court -- assuming Kagan is confirmed -- to strike down the ban on same-gender marriage on Fourteenth Amendment grounds, whether it's DOMA, Prop. 8 or the other 31 similar state laws.

The justices, more than a generation ago in Loving v. Virginia, declared unanimously that the freedom of two mature, unrelated single adults who love one another and seek to form a lasting commitment to one another to marry is a freedom fully protected by the equal-protection clause of the Fourteenth Amendment, regardless of race, religion or nationality.

There is no reason to believe that such freedom to marry shouldn't also be regardless of the gender of the couple.

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Copyright 2010, Skeeter Sanders. All rights reserved.