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US Federal Judge In Massachusetts Rules Part of DOMA Is Unconstitutional

DOMA trials Gill/Massachusetts Trial analysis

by Robert Cruickshank

UPDATE: Here’s the PDF of the ruling, via GLAD. Original post begins here:

As we await the ruling from Judge Vaughn Walker on Perry v. Schwarzenegger, we just received word about a decision in two marriage equality suits. A federal judge in Massachusetts just ruled that Section 3 of the Defense of Marriage Act, the federal law passed in 1996 that bars federal recognition of same-sex marriage and enables states to withhold recognition of same-sex marriages performed in other states, is unconstitutional.

The ruling in the cases, Commonwealth of Massachusetts v. Health and Human Services and Gill v. Office of Personnel Management, does not strike down DOMA in its entirety. But what it does appear to do is to remove the ban on the federal government’s recognition of same-sex marriage.

Bay Windows, New England’s largest GLBT newspaper, provides a very useful overview:

In an enormous victory for same-sex marriage, a federal judge in Boston today (Thursday, July 8) ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act (DOMA) unconstitutional.

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

In Commonwealth of Massachusetts v. Health and Human Services, Tauro considered whether the federal law’s definition of marriage — one man and one woman — violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others. In Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders (GLAD), a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law.

Adam Bink at Open Left offers the key section from Judge Tauro’s ruling in Commonwealth:

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. 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.

In other words, Judge Tauro’s ruling in Commonwealth is that the 10th Amendment prevents Congress from defining marriage, a right that the states held until 1996. It should be noted that there is considerable precedent, including Loving v. Virginia, giving the US Supreme Court the right to overturn bans on certain kinds of marriage, so this case should not be construed to limit the federal courts’ ability to provide for marriage equality.

The other suit, Gill v. OPM, further establishes that Section 3 of DOMA was passed with discriminatory intent and is invalid. The outcome of that suit would appear to mandate that the federal government provide benefits to couples in a same-sex marriage that is sanctioned by the state. This may lead to same-sex spouses being able to file a joint return with the IRS, something that has been denied to them (including the 18,000 same-sex couples married in California between May and November 2008) under DOMA.

Early reaction is in from Evan Wolfson at Freedom to Marry:

Today’s historic ruling strikes down federal marriage discrimination enacted under the so-called “Defense of Marriage Act” in 1996. DOMA created two classes of marriage – those the federal government respects and some it doesn’t – denying married same sex couples and their families equal treatment and depriving them of the crucial safety-net that marriage brings. In Gill et al. v. Office of Personnel Management, eight married same-sex couples and three widowers, represented by the Gay & Lesbian Advocates & Defenders, demonstrated that federal marriage discrimination harms gay and lesbian couples who are trying to make ends meet and protect their families.

Today’s ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional. The decision will be appealed and litigation will continue. But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason. Today’s ruling provides increased momentum to the national movement to end exclusion from marriage and Freedom to Marry’s Roadmap to secure the freedom to marry nationwide. The crucial work of changing hearts and minds and winning the freedom to marry in more states is more urgent than ever as we build on today’s momentum and encourage other decision-makers to do the right thing and end exclusion from marriage.

We’ll have more updates as we learn more about the ruling and its likely implications. It will be interesting to see what, if any, bearing this ruling has on Judge Walker’s decision in Perry v. Schwarzenegger.

UPDATE 2: More from Judge Tauro’s decision:

But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.

Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.

This is a very sensible and effective response to the silly argument that same-sex marriage somehow limits or undermines heterosexual procreation.

Adam Bonin has a good analysis up over at Daily Kos.

A key upcoming question is whether the Obama Administration will appeal this decision. It would be wise of them to not do so.

410 Comments

  • 1. Rhonda  |  July 8, 2010 at 7:06 am

    I like hearing that! Married in CT, live in TX
    <# Rhonda

  • 2. Rhonda  |  July 8, 2010 at 7:07 am

    <3 Even….

  • 3. Alan E.  |  July 8, 2010 at 7:10 am

    This is amazingly awesome!

    It will be interesting to see what, if any, bearing this ruling has on Judge Walker’s decision in Perry v. Schwarzenegger.

    It shouldn't have much to do with the case yet except some minor insight that Olsen and Boies have already presented. Also, that court doesn't hold precedent over CA District or the 9th Circuit.

  • 4. Alan E.  |  July 8, 2010 at 7:10 am

    crap meant to subscribe (and don't tell me that I"m posting too quickly!)

  • 5. Rhonda  |  July 8, 2010 at 7:13 am

    This is true, but…… My wife and I were married in CT in April, yet we reside in TX. I am a disabled vet, and this ruling hopefully means federal recognition of our marriage, and the ability for her to receive my pension should I predecease her.

    <3 Rhonda, with a big grin!

  • 6. Alan E.  |  July 8, 2010 at 7:13 am

    OK I don't have the time, but can Kathleen pretty please with sugar on top find the PDF of the ruling and link it here?

  • 7. Straight Ally #3008  |  July 8, 2010 at 7:14 am

    Fun facts: Judge Tauro is a Republican appointee (Nixon) and an Army veteran.

    States' rights, b—ches! Ohh, the Religious Right got pwned on this one. Love it, love it, love it.

    Robert, who will appeal this? The federal government? Defendant-intervenors? I hope the appeal efforts are lukewarm at best.

  • 8. Kalbo  |  July 8, 2010 at 7:18 am

    So does this mean the federal government must now recognize same-sex marriage for immigration purposes as well? Seems to me they would have to! ^_^

  • 9. nightshayde  |  July 8, 2010 at 7:20 am

    I just heard this on the radio — but it was a one or two-sentence story, then they moved on. From the news story, I couldn't tell if all of DOMA got struck down, but I knew I'd be able to get more information as soon as I got back to work.

  • 10. Robert Cruickshank  |  July 8, 2010 at 7:20 am

    It's up now at GLAD's page. I'm about to link it in the post itself.

  • 11. Ben  |  July 8, 2010 at 7:21 am

    This is excellent news! ( It almost makes up for me having had my wisdom teeth out this morning … )

    Now let's just hope that SCOTUS affirms/upholds this ruling.

    As for how it may affect Perry v. Schwarzenegger, I can only imagine that it would present further evidence that barring same-sex marriage is not in the interest of any governmental body in the States.

  • 12. JonT  |  July 8, 2010 at 7:23 am

    Oh, this is great news. Will be waiting/looking for more information.

    (订阅)

  • 13. Rebecca G  |  July 8, 2010 at 7:23 am

    What's that popping sound?

    Oh, it's the exploding heads of bible-thumping bigots.

  • 14. Monty  |  July 8, 2010 at 7:25 am

    States' rights good…gays bad…what do I do?!

  • 15. chamisaguy  |  July 8, 2010 at 7:31 am

    Happens to be my birthday today, too!

    Great news about the court's decisions. Hope my gay brother and his partner in San Francisco will benefit from this eventually — they're one of the 18,000 same sex married couples caught in the tangles of all this (Prop 8, DOMA, etc.) 15 years together, as DP, as married then voided, then as married again, but now in limbo in many ways.

  • 16. PamC  |  July 8, 2010 at 7:34 am

    Hooray! Wonder if CT will follow? Even though this was a federal court, it only seems to impact Massachusetts. Walker's ruling could impact several states, I seem to recall. At the very least, this is establishing precedent, which is excellent!!!

  • 17. B&E  |  July 8, 2010 at 7:35 am

    This is great news. I'm glad to see we have justices on the bench who see the blatant discrimination and violation of our basic civil and human rights that DOMA stood for. I will be paying close attention to how this plays out in SCOTUS.

  • 18. nightshayde  |  July 8, 2010 at 7:35 am

    If I'm inferring correctly, this wouldn't really have a bearing on Perry v. Schwarzenegger since the California trial was about the constitutionality of Prop 8 itself (rather than the constitutionality of DOMA).

    Am I correct?

    Also, if I'm reading correctly, the part that was struck down today was only the part that said the Feds can not recognize anything other than one man/one woman marriage as "marriage," but the part that still lets states determine whether or not to recognize ss marriages/CUs/DPs from other states remains unchanged?

    Is there another court case coming through which would challenge Section 2 of DOMA?

    Does the federal government HAVE to appeal this decision, or can they just let the ruling stand? If they can just let the ruling stand, how does that affect ss couples across the country?

    Sorry for so many questions — but my brain is spinning & I'm tremendously excited!

  • 19. EdC  |  July 8, 2010 at 7:38 am

    If HHS decides not to appeal, where does that leave all the other Federal court discricts?

  • 20. Straight Ally #3008  |  July 8, 2010 at 7:41 am

    My understanding is that as far as marriage equality goes, it only pertains to states (and DC) where SSM is legal, granting the same federal benefits for all married couples (since the states can define who is married under civil law). It doesn't extend marriage equality to any other places, and is thus harder to oppose than the Prop 8 trial. At least that's my quick, non-lawyer read on it!

  • 21. Monty  |  July 8, 2010 at 7:41 am

    But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.

    This. Very much this.

  • 22. Alan E.  |  July 8, 2010 at 7:44 am

    Walker's ruling effectively only covers California. I'm not sure how the DOMA thing works since it's not a state law.

  • 23. nightshayde  |  July 8, 2010 at 7:48 am

    What about civil unions and/or domestic partnerships? It sounds to me as if the Feds only have to recognize partnerships that are officially called "marriage."

    I really really REALLY hope I'm wrong on that count.

  • 24. Rafa  |  July 8, 2010 at 7:50 am

    So, a couple of questions:

    1) Does this actually mean (as I hope) that any married same-sex couple will be able to enjoy Federal benefits even if they are residents of a state that does NOT currently recognize same-sex marriage?

    2) What parts of DOMA were *NOT* struck down by this ruling, and what do those parts state?

  • 25. chamisaguy  |  July 8, 2010 at 7:51 am

    I just wonder why no one had filed suit against DOMA and the federal government during the 14 years it's been around…..(although perhaps same sex marriages didn't exist yet when it was passed.)

  • 26. Ray  |  July 8, 2010 at 7:55 am

    "A key upcoming question is whether the Obama Administration will appeal this decision. It would be wise of them to not do so."

    Why?

  • 27. Kathleen  |  July 8, 2010 at 7:59 am

    This is FANTASTIC news!!!!!! It's so exciting to begin to see a sea change in the federal courts' treatment of glb & T people!

  • 28. celdd  |  July 8, 2010 at 8:01 am

    more from starting page 24 of the decision:

    "This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.105 ….

    …Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is not “grounded in sufficient factual context [for this court] to ascertain some relation” between it and the classification DOMA effects.110 To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex."

    I got a kick that the term "responsible procreation" also occurred in this case.

  • 29. Kathleen  |  July 8, 2010 at 8:03 am

    Sorry, Alan, wasn't on the computer earlier. Catching up on the phone with an old dear friend with whom I'd lost touch for the 15 years!!!

    This is fabulous news. You're right that this is not binding precedent for Perry – lower court rulings don't generally create precedent. But if it had been around when Perry was started, it would have been cited as "persuasive" authority. Attorneys MIGHT (i stress might) still decide to formally bring it to Walker's attention.

  • 30. Polydactyl  |  July 8, 2010 at 8:03 am

    Please, oh please oh please oh please

    Do want this!! It would be about 5 years to late for yours truly and beloved, but if other people don't have to go through what we did, that's solace enough!

  • 31. AB  |  July 8, 2010 at 8:04 am

    Robert,
    What now? What is the future of this case? Has the administration said it will appeal? And will Kagan be able to hear the case?

  • 32. Monty  |  July 8, 2010 at 8:06 am

    Reminds me of the "but straight people might accidentally have babies!" argument.

  • 33. Rhonda  |  July 8, 2010 at 8:08 am

    "In sum, this court is soundly convinced, based on the foregoing analysis, that the
    government’s proffered rationales, past and current, are without “footing in the realities of the
    subject addressed by [DOMA].”146 And “when the proffered rationales for a law are clearly and
    manifestly implausible, a reviewing court may infer that animus is the only explicable basis.
    [Because] animus alone cannot constitute a legitimate government interest,”147 this court finds
    that DOMA lacks a rational basis to support it."

    I just love the summation.

  • 34. Straight Ally #3008  |  July 8, 2010 at 8:08 am

    Isn't the President on record as being in favor of repeal of DOMA, despite the DOJ's written defense of it? If he goes with public statements, hopefully his administration wouldn't appeal it. But then – does it strike it down for the entire country (in practice, just the states with legal SSM)?

  • 35. Straight Ally #3008  |  July 8, 2010 at 8:10 am

    nightshayde, I'm thinking it doesn't apply to anything but what the state defines as marriage. :/

  • 36. Polydactyl  |  July 8, 2010 at 8:10 am

    I'm pretty sure they didn't. I remember the ruling – I was 16 at the time – and there was just no such thing as a same-sex marriage, AFAIK.

  • 37. A.B.  |  July 8, 2010 at 8:13 am

    This is great. But, aside from undermining the fundamental principles of freedom, justice and equality which supposedly define our nation, I don't understand why DOMA and other same-sex marriage bans don't also violate the 14th amendment guaranteeing equal protection under the law…

  • 38. Polydactyl  |  July 8, 2010 at 8:15 am

    Please correct me if I'm wrong, does this mean that if Walker rules against P8, there will be no appeal? Doesn't this effectively nuke the conflict between striking down P8 without challenging DOMA?

    Does this make Walker's ruling, if in favor, the final word in this state?

    That seems to be what this means as far as I can tell, but I'm neither a scholar nor particularly learned in the ways of federal/state issues.

  • 39. Rhonda  |  July 8, 2010 at 8:15 am

    This covers any/every state. It is regarding federal benefits.

  • 40. Ķĭŗîļĺę&  |  July 8, 2010 at 8:16 am

    (Subscribing)

    BTW, just finished watching "8: The Mormon Proposition" with Felyx, Richard Walter and his future husband BZ. If that is not an eye-opener, I don't know what is…

    P.S. Cried in all the appropriate places ;(

  • 41. Bolt  |  July 8, 2010 at 8:20 am

    Awesome! I'd hate to be living in Hawaii right now. The LGBTIAs' must feel left in the dust. Their governor is an asshole!

  • 42. Polydactyl  |  July 8, 2010 at 8:21 am

    I should have stated "if in OUR favor." Occurred to me after the fact that it was ambiguous.

    Of course I am kind of freaking out over this decision at the moment so I'm a little distracted.

  • 43. nightshayde  |  July 8, 2010 at 8:22 am

    Commonwealth was filed in July 2009. Gill was filed in March 2009.

    Massachusetts was the first state to enact same sex marriage (others already had civil unions or domestic partnerships) and no other state enacted it until 2008.

    I'm not sure why no other case proceeded as far as the two which were decided today before 2009.

    DOMA was enacted before any state adopted any sort of same-sex legally-recognized unions.

  • 44. nightshayde  |  July 8, 2010 at 8:24 am

    Ack. Edited to add: Massachusetts enacted same sex marriage in 2004 (May 17th, to be exact).

  • 45. Kathleen  |  July 8, 2010 at 8:28 am

    It's true that no state had yet extended marriage rights to ss couples when DOMA was made law. It was fear that a state might, following the Hawaii State Supreme Court ruling in Baehr that was the impetus for DOMA.

    AFAIK, the only reason DOMA hasn't been challenged before now, was simply fear that the suit wouldn't succeed, much the same reason so many people argued against bringing the Perry case to court.

  • 46. Kevin  |  July 8, 2010 at 8:32 am

    Not true. Judges of all stripes routinely look across jurisdictional boundaries for legal guidance. Given that Judge Walker directly put the DoMA question to Perry v. Schwarzenegger council, we can be sure that he and his clerks will be reading this decision closely.

  • 47. Casey  |  July 8, 2010 at 8:34 am

    She is an asshole, and a total coward to hide behind her ridiculous notion that one person shouldn't make the decision…duh, you just did!! How dumb does she think we are?

    I bet she feels stupid today, with this ruling. What an embarassment for Hawai'i.

    Off to drink a celebratory glass of water. YEAH!

  • 48. Monty  |  July 8, 2010 at 8:35 am

    And the candidates look to be just as bad, if not worse. I feel sorry for that state.

  • 49. Mark M. (Seattle)  |  July 8, 2010 at 8:39 am

    YES!!!!!!!
    WOW!! Could not be happier!!!!!

  • 50. Chris  |  July 8, 2010 at 8:43 am

    I'd like to hear what people think of Polydactyl's question, above (#45).

    My understanding of what just happened here is still somewhat limited, but it seems, ironically and disturbingly, to be underscoring the states' rights argument – the same argument that the anti-gay crew have been using to ban marriages across the country.

    If this is in effect saying that the federal government cannot sweepingly affect marriage one way or the other, isn't this a double-edged sword: we get back CA and lose all the other states in which the anti-marriage people won?

    I have a feeling I'm seriously off base here – I'd like a more legally knowledgeable mind to weigh in on this…

  • 51. JonT  |  July 8, 2010 at 8:47 am

    Boy, there are all kinds of good quotes in the above linked ruling:

    'What remains, therefore, is the possibility that Congress sought to deny recognition to
    same-sex marriages in order to make heterosexual marriage appear more valuable or desirable.
    But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex
    couples who exercise their rights under state law.”
    '

    'Neither does the Constitution allow Congress to sustain DOMA by reference to the
    objective of defending traditional notions of morality. As the Supreme Court made abundantly
    clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State
    has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a
    law….”
    '

    'The states alone are empowered to determine who is eligible to marry and, as of 1996, no
    state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the
    status quo at the state level to restrict the definition of marriage to the union of one man and one
    woman. But, the status quo at the federal level was to recognize, for federal purposes, any
    marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying
    federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a
    significant departure from the status quo at the federal level.

    Furthermore, this court seriously questions whether it may even consider preservation of
    the status quo to be an “interest” independent of some legitimate governmental objective that
    preservation of the status quo might help to achieve.
    '

    Wow :)

    I'll stop now. Both ruling documents are definitely worth the read.

  • 52. Felyx  |  July 8, 2010 at 8:50 am

    Me too. :_(

  • 53. Ķĭŗîļĺę&  |  July 8, 2010 at 8:51 am

    Somebody, answer, please:
    Does this mean that if DOMA falls now, anyone from any state would be able to sponsor his/her foreign national fiancé(e), even if the state they live in does not recognize same-sex marriages or even bans them?

  • 54. fiona64  |  July 8, 2010 at 8:51 am

    I don't know; Neil Abercrombie has come out in favor of the civil union bill and said that he would sign it if elected.

    Love,
    Fiona

  • 55. David Kimble  |  July 8, 2010 at 8:52 am

    @ Alan E. I am not so sure that Walker's ruling only covers California – remember the Prop 8 case is in Federal Court – not California Courts. It's my understanding, if Walker rules in our favor SSM is legal in the Western States covered by Walker's court. <3 David

  • 56. JonT  |  July 8, 2010 at 8:52 am

    Sorry, one more:

    For example, a thirteen year-old female
    and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage
    license in the state of New Hampshire. Though this court knows of no other state in the
    country that would sanction such a marriage, the federal government recognizes it as valid simply
    because New Hampshire has declared it to be so.
    '

    Now that starts to get to the heart of the matter :)

  • 57. Jeff Baily  |  July 8, 2010 at 8:54 am

    it doesn't affect every state. it only challenged Section 3 of DOMA not Section 2 (which doesn't allow state marriage laws to spill over into others)

    The question is will it only affect Massachusetts, or also the other states which have marriage?

  • 58. Felyx  |  July 8, 2010 at 8:57 am

    We're gettin' Hitched!!!!! Pack your chemodan Moi Cheburashka!!! You are coming home!

    Felyx
    PS: Obama…keep your nose clean or else I will never vote for you again!!!

  • 59. nightshayde  |  July 8, 2010 at 8:58 am

    Still — that might not be such a horrible thing. If nothing else, it would provide a very good argument for future lawsuits calling DOMA unconstitutional. If same-sex couples can protest by saying that their legally-recognized union is a marriage but that they're being discriminated against by not having access to the word "marriage," might not the court say that you can't have two (or more) different terms for the same kind of relationship?

  • 60. Jeff Baily  |  July 8, 2010 at 9:00 am

    But are you sure it only affects states that have marriage or just Massachusetts?

    Because one of the two wins was Atty. General of MA Martha Coakley's challenge of state sovereignty. And that state being allowed to appropriate it's own Federally granted money to married same sex couples in MA.

    The other part of the win is based on 6 years of evidence from married residents of MA whose lawyers presented before a judge challenging only Section 3, not section 2 of DOMA, wouldn't that mean that other states would need to take their mutually exclusive evidence to Court (CT 3.5 years, IA 2 years, VT 2 years, NH .5 years)

  • 61. JonT  |  July 8, 2010 at 9:00 am

    Can't…stop….

    'This court simply “cannot say that [DOMA] is directed to any identifiable legitimate
    purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.”

    Indeed, Congress undertook this classification for the one purpose that lies entirely outside of
    legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the
    Constitution clearly will not permit.

  • 62. Kathleen  |  July 8, 2010 at 9:02 am

    I haven't yet finished reading the ruling. As soon as I do, I'll try to get to any questions that haven't already been answered.

    But did want to comment – it appears that once again a court managed to skirt the issue of g&ls as suspect class:

    Plaintiffs present three arguments as to why this court should apply strict scrutiny in its review of DOMA…

    This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship”91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.

    Those who have been paying attention to all the constitutional law instruction over these past months will understand what that's about. :)

    Once again, avoiding the question, but saying that even under the most lax level of review, there's no justification.

  • 63. JonT  |  July 8, 2010 at 9:03 am

    To be honest Kathleen, I did not expect *any* movement on DOMA for some years at least.

    What a great day :)

  • 64. Sagesse  |  July 8, 2010 at 9:03 am

    I encourage those here who read decisions to read this one. There are passages (like the ones quoted here about responsible procreation) that are tailor made for the arguments in Perry.

  • 65. nightshayde  |  July 8, 2010 at 9:04 am

    The lawsuit wasn't against Massachusetts — it was against the Federal Government.

    If I'm reading correctly, the ruling strikes down Section 3 of DOMA across the board (which may only impact states with legalized same-sex marriage)… so should affect any couple who was/is legally wed in any state with legal ss marriage.

  • 66. JonT  |  July 8, 2010 at 9:05 am

    Do you think so Kevin?

    I remember DOMA being one of Walker's questions, but am not sure how that would pertain to the constitutionality of prop 8…

  • 67. Felyx  |  July 8, 2010 at 9:07 am

    My take is that the Federal Government must respect ALL marriages performed in a state that authorizes and recognizes such marriages.

    This will include all married couples currently residing in states that do not recognize such marriage. Furthermore, the Federal Government would have to recognize all persons intending to get married in a state that allowed those two individuals to get married for purposes of fiancé visa as well. This ruling may also render unnecessary the UAFA immigration bill.

    Of course…there are appeals and I see nothing written regarding a timetable for legal implimentation. Kathleen? (BTW…you deserve many kisses my sweetheart! You who have brought so many of us such solace!!)

    Felyx who is indeed feeling 'felix' right about now!!!

  • 68. Shun  |  July 8, 2010 at 9:08 am

    I'm inclined to say not quite. Just cause DOMA is gone (saying that gay marriage ban is not valid), it would not necessarily mean that gay marriage is valid either. They would have to come out and say that gay couples can immigrate to the States, I think. (Which is why UAFA is still very important.)

    Someone correct me if I'm wrong

  • 69. Sagesse  |  July 8, 2010 at 9:08 am

    "A key upcoming question is whether the Obama Administration will appeal this decision. It would be wise of them to not do so."

    It would be awesome if they could justify not appealing… don't understand how that decision works.

  • 70. Polydactyl  |  July 8, 2010 at 9:10 am

    Personally I never understood why allowing a man to marry a woman, but forbidding a woman to enter the same contract with the very same person based on her gender, didn't count as gender discrimination.

    I was 16 when I thought that up, and I thought I was pretty clever, but I also realized the chances of that reasoning actually going through to court were slim.

  • 71. Kathleen  |  July 8, 2010 at 9:12 am

    Kirille, this ruling will have no direct effect on any state which currently does not recognize ss marriage. This is all based on the argument that if a state defines marriage in a particular way, the federal government must defer to that definition and grant to all the married citizens in that state the same rights and benefits that it grants to any of the married citizens.

  • 72. fiona64  |  July 8, 2010 at 9:13 am

    Hi, Kirill.

    No, that's not really what it means at all. What it means is that the Federal government cannot tell states whom they should recognize as married and, furthermore, that it is unconstitutional to deny Federal benefits of marriage to same-sex couples in states where their marriages are legal and recognized.

    Love,
    Fiona

  • 73. Alan E.  |  July 8, 2010 at 9:18 am

    The question was what a ruling for the Plaintiffs would mean for DOMA, not the other way around. The Defendants used DOMA as part of their case, however.

  • 74. right  |  July 8, 2010 at 9:18 am

    too late for me and my ex too. but still. would be so glad to see it go. torturous.

  • 75. Jeff Baily  |  July 8, 2010 at 9:19 am

    The Judge is looking at 6 years of evidence of how the plantiffs were issued marriage licenses and then denied benefits. Not worrying if gays and lesbians are a suspect class. That decision was made in Goodridge v. Dept. of Public Health 6.5 years ago,

    Do you think gays and lesbians are a suspect class?

    Do you think interracial couples are a suspect class?

    Do you think they who cannot bear young are a suspect class?

    Since this court skirted the suspect class question 6 years after gays and lesbains were allowed to marry in MA, do you think heterosexuals married under 6 years are a suspect class?

    Just curious as to your answers.

  • 76. Kevin  |  July 8, 2010 at 9:20 am

    To JonT and nightshayde: Yes, you're right that these are two different cases with two very different subjects at issue. However, Judge Tauro was very explicit that the DoMA sec. in question could not survive even the lowest level of judicial scrutiny. As we all know, this is a major point of contention in Perry. Tauro basically said that congress' stated aims of 1) encouraging responsible procreation, 2) defending and nurturing the institution of traditional heterosexual marriage 3) defending traditional notions of morality and 4) preserving scarce resources CANNOT be rationally served by legislation that limits federal recognition of marriage to a heterosexual union.

  • 77. Kevin  |  July 8, 2010 at 9:21 am

    Walker's decision will be limited to Proposition 8 in California *only.* That is, until it is appealed to the 9th circuit.

  • 78. Kathleen  |  July 8, 2010 at 9:26 am

    Sadly, Rhonda, this ruling won't directly apply to your situation.

    The ruling says that when a state defines marriage, the feds must recognize it as such and can't extend benefits to only some of the married couples within the state. In your case, your state doesn't recognize you as married.

    On the "up" side, it is one more federal court saying that denying marriage equality has no rational relation to any legitimate state interest.

  • 79. Scott  |  July 8, 2010 at 9:28 am

    Happy birthday, chamisaguy!!

  • 80. AlexD  |  July 8, 2010 at 9:29 am

    I don't think this hurts us in other states. I read it as the Federal Government doesn't get to define marriage – the states do. But states aren't allowed to violate the U.S. Constitution (as distinct from U.S. laws)

    So the federal government can't use DOMA to restrict states' marriages, because that's just a statue, not Constitutional Amendment. (Similarly they can't force states to allow us to marry by law – but a Constitutional challenge still could)

  • 81. Kevin  |  July 8, 2010 at 9:29 am

    Oh no. There *will* be an appeal in Perry regardless of Walker's ruling.

  • 82. Sarah  |  July 8, 2010 at 9:30 am

    Can we just ride this wave to victory already!? Reading all this has me so hopeful, but I know I must temper that with some reality… I certainly see the "double edged sword" that Chris mentioned above as far as leaving this strictly to the states. But, I also know that views are changing and hopefully coming generations (mine) will be more willing to make these big decisions.

  • 83. Kathleen  |  July 8, 2010 at 9:31 am

    Jeff, I started to answer your questions (Yes. Yes. No. No) but half way through I realize you may not understand what is meant by "suspect class." This is a legal term of art which determines whether or not a law which has singled out a particular class of people should be subject to heightened judicial review.

    I'm guessing you haven't been around for the constitutional law instruction.

  • 84. Jeff Baily  |  July 8, 2010 at 9:34 am

    It seems Martha Coakley the Atty General of Massachusetts headed up one of these cases of today's two successful rulings. In her case it's, yes, a states rights issue. Federal money is given to each state to appropriate towards programs. DOMA was requiring that MA couldn't use Federally granted money to their same-sex married citizens. If they did they would loose Federal funding. So in one of her specific arguments: Two cemetaries in MA are Veteran cemetaries and are Fed funded. Therefore if MA allows same sex spouses to be buried alongside their dead spouse Massachusetts would allow all funding from USA. While the other 49 get funding from USA.

    So yes, the Atty General used the "states rights" argument and challenged on the issue of state sovereignty to define marriage as it sees fit.

    Unfortunately marriage licences are governed on the state level, so what affects Massachusetts citizens gets challenged by their elected officials, and go to their state appointed courts. They are not necessarily playing a strategy game with what's happening in California.

    It's awful to segregate gay ashes in any state, but Massachusetts had 6 years of evidence of this happening, so that's why their Atty. General challenged this first, despite what was best for California's probable outcome.

    Lastly, the other case to win in MA, was not a states rights issue, more a general, here are the facts: people are being denied benefits from the Federal Govt. this is unconstitutional and against Equal Protection clause.

  • 85. Kathleen  |  July 8, 2010 at 9:35 am

    Please remember, that despite a long history of "leaving it to the states," some restrictions on marriage still run afoul of the federal constitution. It was state laws prohibited inter-racial marriage and many other restrictions which have been struck down by the Supreme Court.

  • 86. Kevin  |  July 8, 2010 at 9:35 am

    Haha, I know. I noticed that too. But, I'll take it! Describing this section of DOMA as utterly unrelated to the ridiculous stated interests of that Congress is breathtaking.

  • 87. Kathleen  |  July 8, 2010 at 9:38 am

    Even if we win the Perry case all the way to the US Supreme Court, there is a chance that the ruling will have very limited effect in other states. It depends on which facts Walker relies on in the California situation to come to a conclusion.

  • 88. Sagesse  |  July 8, 2010 at 9:40 am

    In case there's not enough to think about….

    Can someone comment on how this might (or might not) ease DADT repeal? DADT can be repealed (with an executive order on non-discrimination), and LGBTs would no longer face discharge for being gay. But they would still not receive fully equal treatment because DOMA does not permit federal benefits to flow to the families of LGBT service members.

    These rulings seem to deal with some, but no all of the problem. Some benefits, like housing, depend on 'marriage'. Say a service member's home state is Wisconsin, but s/he's married in Iowa and stationed at Ft Bragg, or overseas. What? And they can't really deny those benefits to service members who come from/live in states where SSM is not legal. And what about domestic partnerships and civil unions where those are legal?

    Does Section 2 have an impact here as well?

    My own view, before today's DOMA decisions, was that, once DADT passed, they would have to do a carve out from DOMA to make family benefits available to all service members equally, or just overturn DOMA as they've said they intend to do anyway. Today's decisions, if they stand or are not appealed, could just make that process easier.

    The infamous pentagon study would have revealed these issues, as well as other legislative changes that would be required. The other obvious one is that the clause in the UCMJ that makes sodomy an offense would have to be changed.

  • 89. Matthew Nichols  |  July 8, 2010 at 9:41 am

    If states definition of marriage violates the federal, constitution, then they will be struck down (just like what we hope happens for the Prop8 trial).

    The federal constitution subjects states to the equal protection and due process clauses. There is no way for the states to get around that.

    For the same reason, Loving v Virginia struck down interracial marriage restrictions.

  • 90. Kevin  |  July 8, 2010 at 9:42 am

    No, that was precisely what was *not* decided in Goodridge:

    The department argues that no fundamental right or "suspect" 331*331 class is at issue here,[21] and rational basis is the appropriate standard of review. For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection. Because the statute does not survive rational basis review, we do not consider the plaintiffs' arguments that this case merits strict judicial scrutiny.

  • 91. Kathleen  |  July 8, 2010 at 9:43 am

    Yes, that's what I was saying. Did you think I was saying otherwise?

  • 92. Jeff Baily  |  July 8, 2010 at 9:53 am

    No, I only follow Constitutional Law from the sidelines, not a student of it. Thanks for the clarification on it, I was confused by Kathleen's comment. It makes sense now on the subsequent posts, thanks all.

  • 93. Felyx  |  July 8, 2010 at 10:00 am

    An Open Plea To the Idiots Whomever You May Be:

    Please please PLEASE!!! Take Prop 8 to the Supreme Court when you lose!!! I am begging you now…I even feel almost inspired to donate to the Prop 8 Defendant-Intervenors…to appeal your loss ASAP!!! It is my fervent hope that you will choose to get your asses kicked in the Supreme Court of the United States so that we can see your humiliation…er…so that we can finally put a nail in this dead issue's coffin!

    Again, please appeal your losing case so that we can profit from your stupidity.

    From the very very bottom of my heart,
    Felyx

  • 94. Ķĭŗîļĺę&  |  July 8, 2010 at 10:01 am

    Abercrombie also cosponsored UAFA bill!

  • 95. Kathleen  |  July 8, 2010 at 10:01 am

    The "constitutional law instruction" I was referring to was just a joking way of referencing all the discussion that's been going on here, among the regulars, that has amounted to a crash course in the basics of constitutional law. :)

    Stick around – I'm of the opinion that the more one knows about the law and how the courts function, the more effective an advocate one is.

  • 96. Felyx  |  July 8, 2010 at 10:04 am

    Dear God I hope so!! We need a defeat based on 14th Amendment so that all state DOMAs get overturned!

    Felyx feeling finally validated.

  • 97. JonT  |  July 8, 2010 at 10:05 am

    Yes, Another one of my favorite paragraphs :)

  • 98. Ray in MA  |  July 8, 2010 at 10:08 am

    YES!!! FINALLY!!! Maybe there is a God ?!?!

    Should I start planning for a lawsuit against the FEDS to recoup the income taxes I've paid on Domestic Partner Health Benefits since I've been married in MA ??? (It's 'only' about $8,000.00)

    Class Action lawsuit anyone?

  • 99. Sarah  |  July 8, 2010 at 10:08 am

    True, true. Good point. Sometimes I have to wonder as well if we are reading the same Constitution. But, that is another tangent… :)

  • 100. JonT  |  July 8, 2010 at 10:11 am

    He is on record as being opposed to DOMA, and feels it serves no state purpose.

    But, as has been discussed before, apparently he is obligated to defend it.

    Now, whether in light of this ruling he is obligated to appeal it all the way to SCOTUS – No idea.

  • 101. Sagesse  |  July 8, 2010 at 10:14 am

    I suspect rumours of NOM's demise have been exaggerated, but one can hope.

    Gay Marriage Foes: 'Til Disclosure Do Us Part?
    http://motherjones.com/politics/2010/07/national-

  • 102. Sarah  |  July 8, 2010 at 10:14 am

    *I mean, if we and those on the right are reading the same Constitution.

  • 103. Ray in MA  |  July 8, 2010 at 10:16 am

    At this moment I can't download the PDF … getting "the file has been damaged and cannot be downloaded"

    WTF? Did Maggie stick her fat finger into it?

  • 104. JonT  |  July 8, 2010 at 10:16 am

    'I bet she feels stupid today, with this ruling. What an embarassment for Hawai’i.'

    I don't think people like that ever *feel* stupid. After all, they have Absolute Truth(TM) on their side…

  • 105. Kim  |  July 8, 2010 at 10:20 am

    so this would probably end the domestic partner tax on insurance benefits for married gays!

  • 106. Shun  |  July 8, 2010 at 10:20 am

    I've been reading all the news articles out there and still no word on what's next. Will this decision be appealed (no doubt it will but when?)?

    And Judge Walker…hurry up and give us the good news!

  • 107. Kathleen  |  July 8, 2010 at 10:20 am

    Still haven't finished reading – keep getting distracted by reading posts here (and, as always, compulsively checking my email for updates in Perry)

    But just wanted to say, I so love what I've read so far that I WANT TO GO HUG JUDGE TAURO RIGHT NOW!!!. Do you think he'd mind???

  • 108. Shun  |  July 8, 2010 at 10:21 am

    You should hug him till he tells you to stop :D

  • 109. James Tuttle  |  July 8, 2010 at 10:27 am

    Umm…I'm freaking out…I'm reading http://www.drudgereport.com right now and the headline is Ca gay marriage ruling at 6pm pt…does anyone know ANYTHING!?!?!?! Is this Walker's ruling?

  • 110. James Tuttle  |  July 8, 2010 at 10:31 am

    OMG OMG OMG!!!!!!! Can it please be 6 p.m. this is the moment we have all been waiting for and I stand with you all, brothers and sisters. If I'm wrong about this then I'm going to feel like an ass but…I'm suprized I'm the first person to post anything about this.

  • 111. Shun  |  July 8, 2010 at 10:32 am

    WHAT!?

  • 112. Shun  |  July 8, 2010 at 10:33 am

    Another article on today's ruling had the following quote from the conservatives:

    Tom McClusky, senior vice president of the conservative 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.

    (cue eye rolling)

  • 113. Enrique  |  July 8, 2010 at 10:34 am

    Cheers!! this is a great day!! :)

  • 114. nightshayde  |  July 8, 2010 at 10:35 am

    I'm sure he wouldn't mind an e-mail telling him you want to go hug him right now. =)

  • 115. Shun  |  July 8, 2010 at 10:36 am

    I'm not Kathleen but I vaguely remember people at Immigration Equality and such sites saying that this case does not apply to immigration. Again, even if DOMA is struck down, I think the Federal government needs to say that such sponsorship is okay in order for it to be allowed. Thus, we can't rely on repealing DOMA to make immigration possible. We NEED UAFA to pass. I'm interested to know do you go to sites like IE and out4immigration? Do you live in the States? There are so many things you can help out with to get the ball rolling for UAFA.

  • 116. nightshayde  |  July 8, 2010 at 10:40 am

    Are they going up against the LeBron James press conference?

    *snerk*

    My heart rate just shot up. I don't think I can take this much excitement in one day!

  • 117. JonT  |  July 8, 2010 at 10:41 am

    Good article, well worth the read.

    Love this quote:

    'And let's not forget about the embarrassing performance by the Prop 8 defenders during the recent federal court trial over the measure's constitutionality. NOM's lawyers failed to present a single witness who could support its primary contention—that gay marriages threaten straight ones. Given the weakness of its legal defense, it's not inconceivable that organization's biggest success—banning gay marriage in California—will only be a temporary one.'
    :)

  • 118. Kathleen  |  July 8, 2010 at 10:42 am

    My reading of this ruling is that (assuming it withstands appeal), this would most certainly mean you should be able to sponsor your spouse from another country, as long as the state in which you reside recognizes you as married. In fact, the judge in this ruling specifically points to the ability to sponsor one's foreign spouse for immigration as one of the non-financial benefits that Section 3 of DOMA impacts.

  • 119. Richard A. Walter (s  |  July 8, 2010 at 10:42 am

    This will strengthen our case in Perry v. Schwarzenegger, and this also effectively leads to the repeal of DADT, because the military is a federal level employer, and now the federal government will have to recognize the marriages of its LGBT servicemembers, and will have to extend dependents benefits to their families. Could it finallly be that the tide is turning and the arc of justice is finally bending toward the full equality of all of the citizens of the United States, even those that President Momson does not like because they refuse to lie about who they are and who they love.
    BTW, BZ and I watched our DVD of "8:The Mormon Proposition with Papa Foma, Felyx, and (via Skype) KirilleXXI. Very moving, very emotional, very stirring, and after watching it, I am even more convinced that everyone who has been following this site needs to go to Wolfe Video and order their own copy and have mini-festivals with family and friends to fully expose the deceptions that were perpetrated in conjunction with the passage of Prop H8. We need to make sure that this can never happen again.

  • 120. Shun  |  July 8, 2010 at 10:43 am

    but wouldn't at least the folks at Courage Campaign get word about this??

    In 20 minutes!? Holy crap!

    (but yeah, even if it turns out to be false, we won't hold it against you ;) )

  • 121. Kathleen  |  July 8, 2010 at 10:43 am

    Shun, the reason it is important to still go forward with immigration reform, is to cover those states where ss marriage is not recognized.

  • 122. Jeff Baily  |  July 8, 2010 at 10:43 am

    I disagree with UAFA. We should focus on striking down DOMA and challenging the Immigration Inequality in the Courts. I think there comes a time where we need to cut the shit. Let's not have separate but equal, let's not beg for segregation. UAFA is a law that would say let's create a "civil union" type fix to get us equal. Enough!!

    It also is discriminatory against Hetero couples that will need to enter the legal status of marriage to get Immigrant spouses sponsored as citizens. There would not be any "permanent partner" rule for them. But UAFA would allow a permanent partner rule for gays.

    UAFA is remedial. Let's not replace one double standard with another.

  • 123. Shun  |  July 8, 2010 at 10:43 am

    I stand corrected. Awesome :D

  • 124. Kathleen  |  July 8, 2010 at 10:43 am

    Oh, and of course, without knowing what may happen on appeal, can't be sure this ruling will hold.

  • 125. Shun  |  July 8, 2010 at 10:44 am

    ahhh I really want to watch it!
    but I'm overseas :(

  • 126. Kathleen  |  July 8, 2010 at 10:45 am

    I'll watch my email for updates!! If it happens today, the SECOND I get notice, I'll upload to Scribd and post link here.. won't even read it first.

  • 127. Enrique  |  July 8, 2010 at 10:45 am

    Hi Shun, yes I live in USA my partner is from London, and yes, I know about UAFA, but these are great news anyway, things are changing rapidly and there are many things going on, and for my situation I wish UAFA is passed soon and I am interested in helping as much as I can :)
    I will check those sites out! Thanks!!

  • 128. nightshayde  |  July 8, 2010 at 10:45 am

    The Advocate's Twitter feed says it "could … could" be at 6pm.

  • 129. JonT  |  July 8, 2010 at 10:46 am

    Well… I can't see how drudge would know about it before anyone else, but…

    Hmm. It's 5:45pm PT now, so I guess we'll see :)

  • 130. Shun  |  July 8, 2010 at 10:48 am

    Jeff, I respectfully disagree. While people of legal status can spend their time fighting to repeal DOMA for however long, people of binational couples are FORCED to stay apart…or to go away in exile. I am one of those people. I cannot move home with my partner because the US government does not recognize our relationship. Yes, it may be a small step that creates a different category, but it IS necessary because we are SUFFERING. I cannot go home even when I want to. Well, I can if I choose to part with the person I love. I honestly ask…do you know how that feels? to…be forced to stay away from the country that I love?

  • 131. Kathleen  |  July 8, 2010 at 10:49 am

    Idiot.

    The judge made it clear that all the rationales put forth by Congress (which the Obama administration chose not to use because they were even more lame) were either unrelated to the law or an improper motive for any law.

  • 132. Enrique  |  July 8, 2010 at 10:49 am

    OMG Kathleen!!!! Thank you!!! I know it is too early to declare victory but I am excited, I can't help it!!! this is what I have been waiting for!!! Thanks a lot for the info :)

  • 133. JonT  |  July 8, 2010 at 10:50 am

    Damn… guess where I'm going to be for the next couple hours (at least) :)

    BTW Kathleen, If Walker does in fact rule today, I'll expect a 20 page analysis of his decision pronto! :)

  • 134. Felyx  |  July 8, 2010 at 10:54 am

    I disagree, Federal Immigration required that a sponsored fiance is required to marry his or her US citizen partner within 90 days in order to apply for change of status to permanent resident. It does not specify which state the couple must be married in and cannot restrict federal recognition of the marriage regardless of which state the couple resides.

    States that do not want to recognize the married couple do not have to do so but they can also kiss my furry Chinchilla ass!!

    Felyx

  • 135. Kathleen  |  July 8, 2010 at 10:54 am

    Right, JonT. I'll be sure to get right on that. :) (how do I make the 'sticking out my tongue' emoticon?)

  • 136. Shun  |  July 8, 2010 at 10:55 am

    NBC's Today Show will now allow same-sex couples to apply for their annual wedding contest.
    http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/

    The viewers vote on the winning couple. It may be insigificant but any way to show how normal same-sex couples are is equally good.
    If anyone here is thinking of getting married, enter! (I'll definitely vote for you. :) ) Richard????

  • 137. nightshayde  |  July 8, 2010 at 10:56 am

    Other posts (tweets?) are saying it could be an unfounded rumor.

    I find it suspicious that we only would have gotten less than 1/2 hour warning … but I guess we don't have to wait long to find out.

  • 138. Tigger  |  July 8, 2010 at 10:57 am

    Lol!

    Kathleen says it, I believe it, that settles it!

    I defer to your analysis as always!

  • 139. Shun  |  July 8, 2010 at 10:58 am

    It does seem strange that there is so little…news on this. Wouldn't the plaintiffs and defendants be notified at least?

  • 140. JonT  |  July 8, 2010 at 10:58 am

    @Shun: '“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.'

    So. No change in opinion from the peanut gallery then? :)

    I love it when these haters claim to speak 'for the American People'.

    Maybe I can do that too: "The American People have clearly stated throughout their history that all people are equal in the eyes of the law. Why the fundamentalist christianist factions claim otherwise is somewhat sad, but ultimately irrelevant to the future and strength of our society."

    There, how's that?

  • 141. Shun  |  July 8, 2010 at 11:00 am

    they will call you distorting facts and just another "activist"

  • 142. Kathleen  |  July 8, 2010 at 11:01 am

    AFER is reporting on the fb page only that is an unconfirmed rumor. So they don't have any more info, or aren't letting on.

  • 143. Rhonda  |  July 8, 2010 at 11:02 am

    Boston College professor Kent Greenfield, a constitutional law expert, said the rulings could have a legal impact outside Massachusetts if they're appealed and a higher court with a broader jurisdiction agrees.

    An appeal would be considered by the First Circuit, which also includes Rhode Island, Maine and New Hampshire.

    "One things that's going to be really interesting to watch is whether the Obama administration appeals or not," he said.

    Justice Department spokeswoman Tracy Schmaler said the department is reviewing the decision.

    Greenfield added the rulings might encourage other attorneys generals who oppose DOMA to sue to try to knock it down.

    from http://www.huffingtonpost.com/2010/07/08/gay-marr

  • 144. Kathleen  |  July 8, 2010 at 11:03 am

    Maybe the rumor was started as a way to get every glbt person and their allies to remain blued to their computers/blackberries or whatever. Should we watch for some really nefarious NOM et al action to take place while we're distracted? :)

  • 145. Shun  |  July 8, 2010 at 11:03 am

    well its certainly passed 6…

    Ah well.

    It may be a good thing cause I think I've had too much excitment for today (and the day barely began for me!)

  • 146. Kathleen  |  July 8, 2010 at 11:05 am

    Well, that at least seems to imply that the feds aren't required to appeal. When I get chance, I'll ask a friends of mine at LAMBDA to answer that question that's been posed here.

  • 147. Alan E.  |  July 8, 2010 at 11:05 am

    Did you see this note on page 26? (footnote #116)

    "Furthermore, the Congessional Budget Office concluded in 2004 that federal recognition of same-sex marriage by all fifty states would actually result in a net increase in federal revenue."

  • 148. James Tuttle  |  July 8, 2010 at 11:08 am

    Thats F***** up. If its a rumor I'm gonna be pissed. And I feel like an ass. Sorry I got excited to soon.

  • 149. Shun  |  July 8, 2010 at 11:09 am

    its ok. its not like you're the one that wrote that on the site. (or did you? >:) )

  • 150. Mary  |  July 8, 2010 at 11:10 am

    subscribing

  • 151. Kathleen  |  July 8, 2010 at 11:11 am

    But the broader question about this case as setting precedent – District Court decisions, in general, don't set binding precedent. It is only cases at an appeals level that do that. If this is appealed, and upheld in the 1st Circuit, then it would be binding on all states in that court's jurisdiction. It could be cited as a "persuasive" argument but not binding precedent in other regions.

    But again, this only applies if the state recognized ss marriage. There is nothing in this ruling which requires a state to do so.

  • 152. JonT  |  July 8, 2010 at 11:12 am

    'Right, JonT. I’ll be sure to get right on that. :) (how do I make the ‘sticking out my tongue’ emoticon?)

    I'm not a certified emoticon engineer, but I think it goes something like:
    :-P
    :)

  • 153. Felyx  |  July 8, 2010 at 11:13 am

    I am confused by Kathleen's statement here…even though the ruling specified how the Federal Government can recognize states rights, the fact remains that DOMA 3 is still ruled Unconstitutional.

    This means that the Federal Government has no other law to refuse federal benefits to legal legitimate marriages. Even if the state in which the couple resides refuses to recognize the marriage, federal benefits must still be granted.

    N'est pas?

    Felyx (Who is sometimes a bit optimistic but too the good!)

  • 154. Shun  |  July 8, 2010 at 11:14 am

    NYT posted an article

    and here are some interesting excerpts:

    ———————————-

    Tracy Schmaler, a spokeswoman for the Justice Department, said federal officials were reviewing the decision and had no further comment. But lawyers for the plaintiffs said they fully expected the Obama administration to appeal. An appeal would be heard by the First Circuit, which also includes Rhode Island, Maine and New Hampshire.

    Some constitutional scholars said they were surprised by Judge Tauro’s opinions in the two cases.

    “What an amazing set of opinions,” said Jack Balkin, a professor at Yale Law School. “No chance they’ll be held up on appeal.”

    Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government’s longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more. The opinion in the advocacy group’s case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern.

    “These two opinions are at war with themselves,” he said.

    The arguments concerning the 10th Amendment and the spending clause, if upheld, would “take down a wide swath of programs — you can’t even list the number of programs that would be affected,” he said.

    By citing the 10th Amendment and making what is essentially a states’ rights argument, Professor Balkin said that Judge Tauro was “attempting to hoist conservatives by their own petard, by saying, ‘You like the 10th Amendment? I’ll give you the 10th Amendment! I’ll strike down DOMA!’”

    Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law, was more supportive of the logic of the two opinions, and said they worked together to establish a broad right of marriage for same-sex couples.

    “The key issue in this case, and in all litigation about marriage equality for gays and lesbians, is: ‘Does the government have a rational basis for treating same-sex couples differently from heterosexual couples?’ Here, the court says there is no rational basis for treating same-sex couples differently from homosexual couples. Therefore, DOMA is unconstitutional, and conditioning federal funding on compliance with DOMA is unconstitutional,” he said.

    A central issue in the fight over the constitutionality of California’s same-sex marriage ban is whether laws restricting gay rights should be held to a tougher standard of review than the “rational basis” test, and so Judge Tauro’s decision takes a different path that would eliminate the need for that line of argument, Professor Chemerinsky said. “There’s no need to get to higher scrutiny if it fails rational basis review,” he said.

    He also said that the 10th Amendment argument, while unusual, was not the key to the cases. “The 10th Amendment here is a reminder that Congress can act only if there’s constitutional authority, and as a reminder that states are the ones that generally regulate marriage,” he said. The key to the opinion he said, is this passage laying out the equal protection rights of gay people:

  • 155. James Tuttle  |  July 8, 2010 at 11:14 am

    I wish I had access to drudge…I'd be freakin' rich lol.

  • 156. JonT  |  July 8, 2010 at 11:15 am

    @nightshayde: IT does sound very 'rumorish' to me. But, I don't believe there was any advanced notice of the MA rulings either, were there?

  • 157. Kathleen  |  July 8, 2010 at 11:16 am

    Don't worry, James. You're not responsible for the rumor. And if it had been true, I would have been bummed if you hadn't said anything.

    Of course, the result is I'm afraid to stray too far from my puter now for a while.

    BTW, there's nothing saying Walker has to formally respond to the letter from the 'media coalition' which requested advance notice. It wasn't a formal motion in front of the court. However, my suspicion is that he wouldn't have put it on the case docket if he didn't intend to respond. That's what happened with the other media request. But that's just my opinion.

  • 158. Shun  |  July 8, 2010 at 11:17 am

    but I think the point is that the scope of this case is, for now, limited to Mass. So unless that are lawsuits challenging other states on this issue, the ruling will only affect areas in Mass…until it is ruled the same on appeal (to the Supreme Court)

  • 159. Alex O'Cady  |  July 8, 2010 at 11:18 am

    What I wonder is what this will mean for those of us in California who are married…our state currently doesn't recognize same sex marriage, but we're still considered married – does that mean we would benefit from this as well? My wife and I are just starting to pay off a $4000 emergency room bill because we couldn't afford the $150 a month in federal taxes to put her on my insurance…it'd be nice to know we wouldn't have to go through that again.

  • 160. JonT  |  July 8, 2010 at 11:26 am

    @Felyx:

    The ruling seems to basically say that if a given state has decided a given marriage is valid, then that is all the federal government needs to know.

    If the feds provide a right that depends on a state's recognition of one's marriage, then that right must be extended if that state considers the marriage valid.

    If you live in a state where SSM is illegal, then this will not apply to you, as the federal government only needs to know if your marriage is 'valid' in your state.

  • 161. Kathleen  |  July 8, 2010 at 11:29 am

    No, the point is more than just what states this impacts. The point is the nature of the ruling itself. In simplest terms, it boils down to this:

    It is unconstitututional for the federal government to grant benefits to SOME married couples in a particular state without granting benefits to ALL married couples in that state.

    Further, it points out that the feds have always deferred to an individual states' definition of who is married within their own state and used that definition to determine who gets federal benefits reserved for married individuals — and the federal government must continue to do so.

    This ruling doesn't directly have anything to say about what a particular state's definition of marriage should be. However, much of the argument used could certainly be applied to cases challenging a states' ban on ss marriage.

  • 162. JonT  |  July 8, 2010 at 11:36 am

    Haha. So now the drudge headline is: 'DEVELOPING: CA SAME SEX RULING EXPECTED'

    Think they are just trolling for adv $$'s.

  • 163. Sean  |  July 8, 2010 at 11:37 am

    I'm sorry if this has been answered already, but I'm qutie confused here. What exactly does this decision mean?

    I believe it means that same-sex married couples must be given the same federal benefits as heterosexual married couples no matter what state they are in, so long as that state approved the marriage. But I could be wrong. Anyone willing to clarify for me? Please?

  • 164. Kathleen  |  July 8, 2010 at 11:38 am

    If you're one of the couples who became legally married during that window of opportunity, then the state does recognize you as being married.

    So, you would potentially be one of the people who would benefit from this ruling. However, for it to cover the jurisdiction of California, it would have to be appealed to the US Supreme Court…. or if someone brought a similar challenge to DOMA section 3 in a California (federal) District Court, this case could be used as 'persuasive', thought not binding precedent.

    There are two things to consider when answering the question as to whether this applies to a particular couple
    1. Do the facts in this case apply to the couple? In other words, is the couple legally married (and recognized as such) in the state in which they live.
    2. Are you in the jurisdiction covered by this ruling. This will change as the case gets appealed.

    I don't know the answer to the question about whether the gov't must appeal. I suspect yes, but some of the op ed pieces appearing seem to suggest otherwise. I'll try to get an answer to that for everyone — unless we have some legal folks here who can answer w/authority.

  • 165. Shun  |  July 8, 2010 at 11:39 am

    another article http://www.law.com/jsp/article.jsp?id=12024633774

    ———————————————

    If Chief U.S. District Judge Vaughn Walker is looking for a little more ammunition in order to shoot down Proposition 8, one of his Massachusetts colleagues just gave him some.

    U.S. District Judge Joseph Tauro ruled Thursday that the federal Defense of Marriage Act violated the Equal Protection Clause. Congress passed DOMA in 1996, defining marriage as a heterosexual union for purposes of a host of federal benefits and classifications.

    In his opinion, Tauro found that DOMA didn't even survive rational basis review, which is the least exacting form of constitutional scrutiny. Denying same-sex partners the right to marry isn't rationally related to raising stable children, Tauro wrote.

    "An interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country," Tauro wrote.

    He continued: "Indeed, 'the sterile and the elderly' have never been denied the right to marry by any of the fifty states. And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate."

    Walker raised many of the exact same points during the recent federal challenge to Proposition 8, questioning lawyers, for example, about why the elderly are permitted to marry.

    A huge part of the plaintiffs' case in the Prop 8 trial involved whether gays and lesbians make good parents. Tauro weighed in on that, too.

    "Since the enactment of DOMA, 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," Tauro wrote.

    The trial in Walker's courtroom ended last month, and a ruling could come at any time.

    Tauro used unequivocal language in striking down DOMA.

    "Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves," he wrote. "And such a classification, the Constitution clearly will not permit."

  • 166. Kathleen  |  July 8, 2010 at 11:45 am

    Sean, Yes, that is basically what this means.

    I've been missing an essential point when talking about jurisdiction here – This case strikes down a federal law. That's different than the Perry case, which is challenging a state law on federal grounds.

    If this case is not appealed, and is allowed to stand, my understanding is that this strikes down Section 3 of DOMA – period. If that's the case, then in any state which recognizes a ss couple as married, that couple would qualify for federal benefits. I'll try to get clarification on this point from some legal minds….

    We'll have to see what the next move is. AFAIK, the feds haven't yet asked for this ruling to be stayed pending appeal. I suspect that would be their next move, if they intend to appeal.

  • 167. Felyx  |  July 8, 2010 at 11:48 am

    Kathleen, perhaps you can amend the part of your statement that reads,

    "as long as the state in which you reside recognizes you as married"

    to

    'as long as the state in which you marry allows for same sex couples to marry'

    The US government cannot dictate in which state you must live or in which state you may marry, and states do not determine who may immigrate.

    Respectfully,
    Felyx

  • 168. Shun  |  July 8, 2010 at 11:49 am

    Let's say that this eventually is allowed to stand. It still doesn't mean that same sex marriage is for all in the United States per se right? But if, hypothetically, that all states recognize same sex marriage (even if they dont allow ppl to get married within the state), then anyone can just go to a state where they can get married and go back to their own state right?

  • 169. Kathleen  |  July 8, 2010 at 11:53 am

    I'm not sure I get your point, Felyx. Can you give me an example of a situation where my statement wouldn't be true?

  • 170. Felyx  |  July 8, 2010 at 11:54 am

    Moreover, if this is so, then it can be argued that any binational couple can get married in a state that permits it and therefore UAFA is not necessary. I believe UAFA has flawed language and would leave itself subject to challenges that would deter our aims. I would rather see the lack of sufficient federal laws allow gay citizens to sponsor their partners in a fully equal manner.

    Of course I am not so proud that I would not try to bring Kirill over through UAFA if I am not correct about the meaning of this ruling…my Cheburashka is more important that my pride! (After all…he is my Pride!)

    Felyx

  • 171. Ronnie  |  July 8, 2010 at 11:54 am

    ROFLMGAO….Rebecca G….I love it…I've been out all day but this was great news too come home too…then I read your comment and I died laughing…..Thank you…..<3…Ronnie

  • 172. Brandy  |  July 8, 2010 at 11:55 am

    To piggyback off of Shun (#172), I was married in CA when it was legal, but we live in TX (which definitely doesn't recognize our marriage). Does this ruling mean that the federal government will recognize us as married, even if our home state doesn't?

  • 173. Brandy  |  July 8, 2010 at 11:56 am

    I meant #175

  • 174. Ray in MA  |  July 8, 2010 at 11:56 am

    IMO, after reading the judgement, it may actually come to be that any couple recognized by a state to be married, would qualify for federal benefits no matter where they reside.

    …there are 18,000 recognized by CA to be married.

    Hopefully, it will be complications like this that will trigger the SCOTUS to step in to avoid legal mayhem.

  • 175. Shun  |  July 8, 2010 at 11:57 am

    sorry another post but here's an interesting excerpt from here http://www.theatlantic.com/politics/archive/2010/

    ——————-

    BULLETIN: A ruling on California's Proposition 8, which banned gay marriage, is expected shortly from Judge Vaughn Walker. Today, the Defense of Marriage Act was ruled unconstitutional by a federal judge in Massachusetts. Short term: good for gays. Long term: "the kindling is there" for a backlash, says Jonathan Capehart. Americans accept civil unions; the courts won't go far ahead of the public.


    whatever shortly means…

  • 176. Rhonda  |  July 8, 2010 at 11:58 am

    let's hope!

    <3 Rhonda

  • 177. Ronnie  |  July 8, 2010 at 11:59 am

    Happy B-day… ; ) …Ronnie

  • 178. Felyx  |  July 8, 2010 at 12:01 pm

    Kathleen, I believe where I differ is on the use of 'as long as'. It seems to imply that you are saying that residence of non-ssm states cannot support spouses because the state can override the USCIS policies. I am not sure that is accurate. States do not determine immigration status as it is a federal right and the US government cannot mandate where a couple may marry or live.

    Respectfully (and of course emotional somewhat blinded by my hopes),

    Felyx

    FWIW – It scares me Kathleen that you might be right on the technicalities…this is the only time I am actually hoping you are a bit off only because you are doing so much at once! (I love you Kathleen! :P)

  • 179. Ray in MA  |  July 8, 2010 at 12:02 pm

    …continuing my previous point, gay couple would then go to 'sane' states to be married and return home and get Fed bennies, but not state bennies (which are not worth nearly as much anyway)… but what happens to states that base their State Income Tax on Fed Income Tax returns… legal mayhem!

  • 180. JonT  |  July 8, 2010 at 12:04 pm

    @Felyx: 'The US government cannot dictate in which state you must live or in which state you may marry, and states do not determine who may immigrate.'

    This is true, however, a state can determine which marriages it calls valid. In addition, DOMA, section 2, still stands. A state is not required to consider a SSM marriage performed in another state as valid in their state, if they do not allow SSM to begin with.

  • 181. Shun  |  July 8, 2010 at 12:05 pm

    and I think it's one of those technicalities that are bound to create confusion. I'm contacting Immigration Equality to see if they can post something that can clarify on what this ruling means to binational couples.

  • 182. Richard A. Walter (s  |  July 8, 2010 at 12:05 pm

    ARe you on FB? If so, PM me there, and I will respond with my Skype ID. Kirille guided us through a process that made it possible for him to see the movie via Skype connection while we were watching it and sharing the screen.

  • 183. Felyx  |  July 8, 2010 at 12:07 pm

    Kudos to you JonT!!!

  • 184. Richard A. Walter (s  |  July 8, 2010 at 12:07 pm

    There is one little rule that prevents us. A little thing that happened 15 years ago that is against their eligibility rules. And I will definitely start a campaign for any P8TT couples who are eligible and enter. So for Billy and Bruce, that is a not so subtle hint guys!

  • 185. JonT  |  July 8, 2010 at 12:08 pm

    @Ray in MA: 'IMO, after reading the judgement, it may actually come to be that any couple recognized by a state to be married, would qualify for federal benefits no matter where they reside.'

    I didn't get that from my reading of both rulings. The marriage would have to be considered valid in the state you reside. Section 2 of DOMA is still intact (these cases only involved Section 3). Section 2 allows states to ignore the 'validity' of a SSM marriage performed in another state where is was/is legal to marry.

    Please correct if I am wrong.

  • 186. james  |  July 8, 2010 at 12:11 pm

    Well..NOW drudge has changed the headline to pertain to the DOMA ruling. That is what I get for continuing to read rightist Drudge in the first place lol.

  • 187. Rhonda  |  July 8, 2010 at 12:13 pm

    I was thinking the same… :P

  • 188. Ray in MA  |  July 8, 2010 at 12:16 pm

    JonT … I'm no lawyer, but recognition by the state to which I live would have nothing to do with the federal benefits I would receive.

    ex: If Iive in FL and work at Navy Base in FL, but I have a marriage recognized by MA, I would then be eligible for Fed Employee bennies. The Feds can't say, well you are recocognized by MA, but you live in FL, so we won't give you bennies? IMO it is between me and MA and the Feds, not FL.

    I could be wrong!

  • 189. Shun  |  July 8, 2010 at 12:17 pm

    Thanks!!

    I tried searching on FB but I couldn't find you. How should I search?

  • 190. Felyx  |  July 8, 2010 at 12:18 pm

    @JonT

    You wrote, "If you live in a state where SSM is illegal, then this will not apply to you, as the federal government only needs to know if your marriage is ‘valid’ in your state."

    I am under the impression that the Federal Government need only know that your marriage is valid in the state in which you got married. If you marry in a state and move, that would not invalidate the marriage for federal benefit purposes. Therefore, if I sponsor someone through intended marriage, immigration can only ask me to prove that I CAN get married not where I get married or where I live.

    Hopefully and respectfully,
    Felyx

  • 191. Dave P.  |  July 8, 2010 at 12:20 pm

    Has a nice ring to it! I like it.

  • 192. Rhonda  |  July 8, 2010 at 12:21 pm

    drudge says SOURCES: NO CA SAME SEX RULING THURSDAY EVENING… OFFICIALS HAD BRACED FOR DECISION. JUDGE IS 'NOT GOING TO ISSUE' TONIGHT…

  • 193. james  |  July 8, 2010 at 12:21 pm

    lol

  • 194. Kathleen  |  July 8, 2010 at 12:22 pm

    Okay, let me start by saying that all the questions I've been answering about whether someone could sponsor a foreign spouse were answering that question – i.e, a SPOUSE. So, I was answering the question for a couple where they are already married. So, let's say there is a ss couple married in MA and one is a foreign national. This ruling would not mean that the person with foreign citizenship could now apply for resident status as the spouse of a US citizen, following all the same rules that are currently in place for any os couple applying for the same.

    As to the question of whether someone would be allowed to sponsor a FIANCE (under the fiance immigration rules), that might get more complex. I have no doubt that it would apply to any US citizen residing in a state which permits ss marriage who want to sponsor a ss fiance. It it less clear to me what would happen if the US citizen is a resident in a state which would not recognize the marriage in their state.

    In general, this ruling would say that you must treat ss and os couples the same. If immigration policy is in place that says the marriage must be valid in the resident state, then that is what would apply here. If the current policy is simply that the marriage must be valid in at least one state, and they intend to get married there, irregardless of what the resident state is, then that's what would apply. And if there is no analogous situation for os couples, then there would have to be a clarification on this particular point.

  • 195. Shun  |  July 8, 2010 at 12:22 pm

    (throws stones at them for getting me excited for nothing)

    BUT, I would hope this implies that the ruling is indeed VERY VERY VERY SOON…(like tomorrow!?)

  • 196. Kathleen  |  July 8, 2010 at 12:24 pm

    OOPS!! Major typo in my answer above. I said, "This ruling would not mean that the person with foreign citizenship could now apply for resident status as the spouse of a US citizen, following all the same rules that are currently in place for any os couple applying for the same. "

    I MEANT: This ruling would not mean that the person with foreign citizenship could now apply for resident status as the spouse of a US citizen, following all the same rules that are currently in place for any os couple applying for the same.

  • 197. Shun  |  July 8, 2010 at 12:27 pm

    Thank you for the clarification.

    For those (Felix, Kirille, etc.) that are in the boat of binational couples, I suggest going to Immigration Equality and contact their legal expert and see if you can go ahead with trying to apply for immigration. No doubt it may be a bit jumping the gun a little, but I think IE will help you out more specifically.

  • 198. JonT  |  July 8, 2010 at 12:30 pm

    @Ray in MA: I’m no lawyer, but recognition by the state to which I live would have nothing to do with the federal benefits I would receive. '
    :) I am no lawyer either, but these cases seemed constrained to the fact that DOMA required that MA discriminate against it's own citizens (in violation of MA's own constitution) due to DOMA's section 3.

    I really have no idea what the limits of this ruling is. Your logic makes sense to me, defintely.

    However, there's that DOMA Section 2 which specifically does not require a state to consider a SSM marriage performed in another state to be valid.

    These 2 cases only seemed to strike Section 3, and had nothing to say about Section 2. I'd love to be wrong. Please, someone call me an asshole and prove me wrong! :)

    In spite of the various headlines I've seen today, these rulings to not strike DOMA as a whole, only Section 3.

  • 199. Felyx  |  July 8, 2010 at 12:30 pm

    @JonT

    The state may not have to recognize a marriage but the US government does have to recognize a marriage validated by the state in which it was performed.

    You would have to show me where Federal Immigration Benefits are dependent on residency status and not on valid marital status.

    Respectfully,
    Felyx

  • 200. Kathleen  |  July 8, 2010 at 12:30 pm

    Thanks to a former law professor of mine at LAMBDA Legal….

    I posed two questions. Here are his answers

    Q: Are the feds required to appeal this decision?

    A: There is precedent for the Executive Branch deciding not to appeal a decision holding a federal law to be unconstitutional. It has happened only rarely, however, and one of the houses of Congress might then have the ability to intervene in the case and appeal on its own, in which case different arguments might be advanced than were put forward by the Department of Justice in the two cases decided today.

    Q: 2. Because this strikes down (a part of) a federal statute (unlike the state law at issue in Perry), if this ruling is not appealed, does it mean that the federal statute is no longer enforceable, no matter in which jurisdiction? (i.e, will the holding in this case then apply to all states in the country that recognize ss marriage?).

    A: At the moment, the decisions issued today technically only cover Massachusetts. A decision from the First Circuit Court of Appeals would only affect what the federal government does with respect to married couples in the states in the First Circuit (and the only state in that circuit other than Massachusetts that currently allows same-sex coupels to marry is New Hampshire). Since there aren't many instances where the Executive Branch did not appeal a decision holding a federal law unconstitutional, I'm not sure whether the decision not to appeal such a decision would or would not bind the federal government in other parts of the country.

  • 201. Shun  |  July 8, 2010 at 12:32 pm

    :( @ #2

  • 202. Kathleen  |  July 8, 2010 at 12:37 pm

    My reading of this ruling is that is only applies if the state in which you live recognizes you as married. So, assuming this holds up on appeal, and strikes down Section 3 of DOMA across the country, you would have to move to a state which recognizes your marriage in order to get federal benefits.

    The essence of this ruling is that the feds can't impose their own definition of marriage on a state in determining federal benefits. If the feds grant benefits to a married couple simply because they're married, it must defer to the state's definition of who is married in any particular state.

  • 203. Rhonda  |  July 8, 2010 at 12:37 pm

    Thanks for looking into it. Maybe this will go … all … the … way!!!! :D Rhonda

  • 204. JonT  |  July 8, 2010 at 12:40 pm

    @Felyx: 'I am under the impression that the Federal Government need only know that your marriage is valid in the state in which you got married. If you marry in a state and move, that would not invalidate the marriage for federal benefit purposes.'

    Before DOMA, you'd be right. Getting legally married in one state automatically made that marriage valid in all other states.

    DOMA changed that, specifically Section 2, as I understand it, which allows states to ignore a 'valid' marriage performed in another state.

    It fucking sucks, I agree. A hate motivated law, no question in my mind. Still much work to be done.

    Don't lose hope :) I haven't.

  • 205. Joel  |  July 8, 2010 at 12:44 pm

    I'm really confused now. Could someone help, and make it in small words that a non-lawyer can understand?

    I understand that the Federal court in Boston ruled that section 3 of DOMA is unconstitutional. Section 3 is the section that maintains that the United States Government is not obliged to recognize same-sex marriages performed in states that allow/license them.

    Doesn't this mean that the Federal government now must recognize same-sex marriages performed by the states that allow them? And doesn't it mean that even if I don't reside in the state in which I was married, I am still married for federal purposes?

    How can section 3 of DOMA be unconstitutional ONLY for MA residents? It's a federal law, right?

    I know that I'm appearing simple here, but I really don't understand how calling a federal law unconstitutional in only one state is legally possible…

    Thanks.

  • 206. Kathleen  |  July 8, 2010 at 12:46 pm

    @Ray in MA, my reading of this ruling is the same as JonT's. It is saying that when the feds decide certain benefits are available to married couples strictly because they are married, the federal gov't must defer to the particular state's definition of marriage in deciding who is married.

    The reason we're all having such a hard time wrapping our heads around this is likely because there is no good analogous situation in os couples. For example, if a 16 y.o. gets married w/out parental consent in a state that allows such a marriage, and then the next day the couple moves to a state that wouldn't have allowed that marriage, the new state still recognizes the marriage.

    I can't think of a single instance in modern US law where a state doesn't recognize another state's marriage as valid, except in the case of ss couples. I heard mention in the MN legislative hearing on the topic, a suggestion that MN may have refused to recognize so-called 'common law' marriages from other states, but I would have to look into it to know if that is the case.

    And you're right that the more the law creates this crazy patchwork of status, the more it weakens the case against marriage equality.

  • 207. JonT  |  July 8, 2010 at 12:47 pm

    Well maybe he (Walker) was prepared to rule today, but decided to review the MA cases first – as he was surprised by the timing…?

    One can hope :)

  • 208. JonT  |  July 8, 2010 at 12:52 pm

    @Felyx: The state may not have to recognize a marriage but the US government does have to recognize a marriage validated by the state in which it was performed.

    You would have to show me where Federal Immigration Benefits are dependent on residency status and not on valid marital status.

    Man, I hope you are right. I just keep thinking about DOMA's Section 2. I really do not quite understand the monkey-wrench that throws into this situation.

    I guess that's why lawyers get the big bucks :)

    FWIW: You have my support, and I wish you and Kirille luck!

  • 209. Rhonda  |  July 8, 2010 at 12:57 pm

    193. Kathleen | July 8, 2010 at 7:46 pm

    @Ray in MA, my reading of this ruling is the same as JonT’s. It is saying that when the feds decide certain benefits are available to married couples strictly because they are married, the federal gov’t must defer to the particular state’s definition of marriage in deciding who is married.

    The reason we’re all having such a hard time wrapping our heads around this is likely because there is no good analogous situation in os couples. For example, if a 16 y.o. gets married w/out parental consent in a state that allows such a marriage, and then the next day the couple moves to a state that wouldn’t have allowed that marriage, the new state still recognizes the marriage.

    I can’t think of a single instance in modern US law where a state doesn’t recognize another state’s marriage as valid, except in the case of ss couples. I heard mention in the MN legislative hearing on the topic, a suggestion that MN may have refused to recognize so-called ‘common law’ marriages from other states, but I would have to look into it to know if that is the case.

    And you’re right that the more the law creates this crazy patchwork of status, the more it weakens the case against marriage equality.

    To piggyback on this response, I spoke with a friend of mine who works in the VA Benefits here. She stated that federal law will only recognize marriages that are recognized by the residential state. Her example was that Pennsylvania doesn't recognize common-law marriage, so a pensioner with a common-law spouse would only receive benes for a single, but if the pensioner moved to TX he/she would receive spousal support.

  • 210. Ķĭŗîļĺę&  |  July 8, 2010 at 12:57 pm

    Just got this via email:

    In a ruling today, Federal District Court Judge Joseph Tauro struck down the Defense of Marriage Act (DOMA), ruling that DOMA discriminates against gays and lesbians and infringes on the rights of states to define marriage.
    The ruling is available here.
    The statement we released to the press is below:

    NATIONAL ORGANIZATION FOR MARRIAGE DECRIES
    BOSTON FEDERAL JUDGE'S DECISION
    STRIKING DOWN THE DEFENSE OF MARRIAGE ACT

    "A Boston judge has no moral right to decide the marriage question for the people of the U.S."
    – Brian Brown, President, National Organization for Marriage

    WASHINGTON, DC – The National Organization for Marriage (NOM) released the following statements today in response to a federal judge in Boston ruling the federal Defense of Marriage Act (DOMA) unconstitutional.

    "Under the guidance of Elena Kagan’s brief that she filed when she was Solicitor General, Obama's justice department deliberately sabotaged this case," charged Brian Brown, President of NOM, referring to the Justice Department's brief which described DOMA as discriminatory. Despite the explicit language in DOMA that the law was designed to protect children's right to their mothers and fathers, the judge disavowed that DOMA has anything to do with responsible procreation. "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," Brown continued.

    "Does this federal judge want to start another culture war?" asked Maggie Gallagher, Chairman of NOM. "Does he really want another Roe. v. Wade? The simple fact is 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."

  • 211. Ben  |  July 8, 2010 at 12:57 pm

    @ JonT : Section 2 remains intact, thus allowing states to choose if they want to allow SSM to be accepted within their borders. However, this ruling could leave an opening to overturn § 2; if the Federal government is not allowed to consider straight and gay marriages differently, then the ability of a straight marriage to be accepted across borders and the inability of a gay marriage to be similarly accepted is a violation of the same standard — I think it's usually applied to interstate trade, because it's a legal, federally-recognised contract — and would under this ruling be considered unconstitutional. However, that's outside the scope of this ruling, and would need to be dealt with separately.

  • 212. Richard W. Fitch  |  July 8, 2010 at 12:58 pm

    Despite knowing there will be a torrent of responses, I'll subscribe. ;-)

  • 213. Ben  |  July 8, 2010 at 1:04 pm

    Oh, I hope NOM becomes D-Is on this case. They will be torn to shreds. They also fail to see that the DOJ was stuck with an indefensible position, and that the ruling is sound. So, anyone interested in opening paramutuals on how this'll turn out, if NOM gets invovled?

  • 214. Ben  |  July 8, 2010 at 1:05 pm

    Haha … I subscribed when there were two posts. My poor, aching inbox.

  • 215. Ronnie  |  July 8, 2010 at 1:06 pm

    This is filled with so much FAIL for NOM…."passed by majorities"?…whether it was partisan or not….the majority it both California & Maine voted to legalize Same Gender Marriage…..but i guess that majority thing only applies when it affects anti-gay Bigots….FAIL…

    & the fact that Maggie clearly thinks this can be another Roe v. Wade shows how scared the anti-gays are….EPIC FAIL….<3…Ronnie

  • 216. JonT  |  July 8, 2010 at 1:09 pm

    Haha: Of course – slam the 'activist judge' and try to harm Kagan's confirmation hearings at the same time.

    These people really are scum. 'Does this federal judge want to start another culture war?” asked Maggie
    Gallagher, Chairman of NOM.
    '

    Start?

    You already started it. Now, we're going to finish it. And you're going to lose. As your kind always has. See: 'World History'.

  • 217. Shun  |  July 8, 2010 at 1:10 pm

    I'm gonna scream if I read another argument on how preventing same sex marriage will protect the children

  • 218. Sean  |  July 8, 2010 at 1:11 pm

    Thanks! I really appreciate the help!

  • 219. Felyx  |  July 8, 2010 at 1:12 pm

    @Maggie Gallagher

    You said, "We expect to win in a higher court.”

    Uhm…who is we? Would that be the DOJ defense you just called incompetent? Your oh-so competent defendant-inter-wieners at the P8 trial?

    Perhaps the 'higher court' you speak of is referring to a moral one that has nothing to do with a real court of law!

    How is that expectation-thingy working out for you there Mags?!!!

  • 220. Angelo  |  July 8, 2010 at 1:17 pm

    Subscribed

  • 221. Richard A. Walter (s  |  July 8, 2010 at 1:23 pm

    I got the same email. And this was the reply I sent:
    "Du bist ein dray kup. Klug na, dine kup arbit nit. Meshuggah Monist. Metornish. Du bisth ein SHANDA fer Menchen.–Lubavitcher rabbi Harav Abraham Benzion ben Abraham Avenu vaSarah Emanu haIsrael Jernigan

  • 222. Kathleen  |  July 8, 2010 at 1:27 pm

    @Rhonda,

    I would question what your friend told you on this point:
    Is she distinguishing between PA's allowing a couple to establish a common law marriage while living in PA vs. recognizing a marriage already established in another state.

    Let me give an example for clarity. Let's say that while living in the state of MT, a couple met all the requirements the establish a common law marriage. Now you are considered legally married in MT. If you move to PA, I am quite sure that PA would recognize the marriage as legal. That's different than being able to establish a common law marriage while living within the state of PA.

    I'd be very interested if anyone can point me to a single case where a common law marriage which was established in one of the states that still allow it was NOT recognized as a valid law in another state. If there is a case, then this would be analogous to the situation we're looking at with ss couples.

  • 223. Felyx  |  July 8, 2010 at 1:28 pm

    BTW here are the requirements for Fiancé(e) Visas. Nowhere in the requirements does it mention anything regarding state residency. It only stipulates that the couple (no mention of gender requirements here) must marry within 90 days. Furthermore there is no stipulation as to where the marriage must take place (ie, in your state, etc.)

    Kathleen may be telling us that the Federal benefits granted through the state are not transferable but I still believe federal benefits granted directly through the federal government cannot be denied regardless of the states stance on marriage. (Don't forget, I love Kathleen! :)

    Eligibility Requirements

    If you petition for a fiancé(e) visa, you must show that:

    You (the petitioner) are a U.S. citizen.
    You intend to marry within 90 days of your fiancé(e) entering the United States.
    You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.
    You met each other, in person, at least once within 2 years of filing your petition. There are two exceptions that require a waiver:
    1. If the requirement to meet would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice.
    2. If you prove that the requirement to meet would result in extreme hardship to you.
    http://www.uscis.gov/portal/site/uscis/menuitem.e

  • 224. Shun  |  July 8, 2010 at 1:33 pm

    have you tried contacting Immigration Equality to confirm? I don't think anyone here can really say whether what you're saying is true or not

  • 225. Rhonda  |  July 8, 2010 at 1:34 pm

    @Kathleen

    Her example was in regards to my stating that my marriage is legal in CT, where we married. She stated that the VA has strict policy about the state the person resides in determining the legitimacy of marriage, for example a couple that is common-law in TX (where all you have to do it introduce yourself as a married couple to 3 separate people or have a child together) is not considered married in PA because they don't recognize common-law marriage.

    I don't know of any case law.
    <3 Rhonda

  • 226. Santa Barbara Mom  |  July 8, 2010 at 1:40 pm

    Info from Joe.My.God. site:

    The American Foundation for Equal Rights will text you the moment Judge Vaughn Walker issues his decision on Perry Vs. Schwarzenegger. Just text the word "Equal" to 69866.

  • 227. Felyx  |  July 8, 2010 at 1:42 pm

    @JonT

    State of Residency should only have bearing on state provided benefits and federal benefits provided through the state…it should have no bearing on federal benefits provided directly by the US government. State tax benefits would be affected, medicare might be affected but social security, which is not provided by the state, should not be affected.

    Respectfully,
    Felyx

  • 228. Kathleen  |  July 8, 2010 at 1:52 pm

    Felyx, one of my answers above clarified that my earliest answers to this question all had to do with the question of SPOUSES – that is people who were already married – i.e, under what conditions could someone's foreign national spouse apply for green card/residency, etc., based on that marriage. And for that situation, my answer was that it would depend on whether or not you were legally married and that this ruling stands for the proposition that the state defines whether or not you're married, not the federal government.

    It is a separate question as to how this ruling impacts the ability to sponsor a person for a fiance visa. It MIGHT be argued that this ruling doesn't reach a conclusion on this question because it only affects people who are currently legally married in the state in which they reside, and is mute on the question of someone who wants to get married.

    However, let's consider the possibility that this also applies to the situation of fiance visas. Looking at the plain language of the rules you posted above, the only thing that stands out for me is "You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment." I would ask the question – does that mean that you can legally marry in the state in which you reside? Or does that just mean that you are able to legally marry somewhere in the U.S.

    For example, I would argue that if you tried to sponsor a ten year old for a Fiance Visa, I doubt the feds would allow it. (unless there is a state somewhere that allows 10 y.o.s to marry??).

    Now, let's consider a 16 y.o. What if the state you live in doesn't permit a 16 y.o. to marry, but another state in the country does. Would the U.S. gov't issue a fiance visa in this circumstance? If the answer is YES, then this ruling might stand for the proposition that you would be able to petition for your ss fiance. If the answer is NO, then this ruling could mean that you won't be able to petition for your ss fiance.

    What this ruling would definitely seem to mean is that if you went to, let's say Spain, and got married. Then returned and lived in MA, you should be able to apply for residency, etc., for your spouse.

    I don't want to be a wet blanket, but keep in mind this is just a District Court ruling– it's a kick-ass one and worthy of celebrating– but as to it affecting individual's lives, this may have a way to go before that happens, especially outside of MA.

  • 229. Sagesse  |  July 8, 2010 at 1:54 pm

    "Only an incompetent defense could have lost this case."

    Is this what they're going to say when they lose Prop 8? Tee hee!

    This entire press release sounds a little whiny and desperate.

  • 230. Dave  |  July 8, 2010 at 1:55 pm

    Is there a potential conflict here with the "overturn Prop 8" case?

    Boston judge declares states have a right to define marriage on their own terms, and based on precedent, federal law has to accept that. ie, Tenth Amendment.

    At the same time, we're hoping Judge Walker finds Prop 8 unconstitutional per Amendment 14 . But wouldn't that mean he would be bringing federal oversight into a matter which Boston has just said is a state's right.

    Somebody walk me through this.

    Is the legal logic that the Tenth Amendment holds true as long as the Constitution does not trump state law. But Amendment 14 is that trump over state law? ie, the Fed Govt will be asked to acknowledge that states do have the right to define marriage (10th Amend), as long as that definition does not create an inequality among US citizens (14th Amend). Is that where this is going?

  • 231. JonT  |  July 8, 2010 at 1:58 pm

    '"Only an incompetent defense could have lost this case."

    Is this what they’re going to say when they lose Prop 8? Tee hee!'

    Oh Snap Sagesse! :)

  • 232. Kathleen  |  July 8, 2010 at 2:04 pm

    The judge in this case saying the feds defer to the states to define marriage in no way undermines the Prop 8 case. The state is allowed to define marriage as long as the definition doesn't run afoul of the US Constitution. Plaintiffs in Perry are arguing that CA's definition of marriage violates the US constitution.

  • 233. Ben  |  July 8, 2010 at 2:05 pm

    Text message sent … woo hoo!

  • 234. RebeccaRGB  |  July 8, 2010 at 2:10 pm

    Comment numbers change whenever someone replies to an earlier comment. (For example, if there are two comments, #19 and #20, and someone replies to #19, the reply becomes #20 and what used to be #20 becomes #21.) So they cannot be used as a reference.

  • 235. Lora  |  July 8, 2010 at 2:11 pm

    My wife and I are legally married couple in California. Even though ssm is not legal in Ca. at this time…our marriage is still legal and binding and recognized as a legal marriage in California.( Hence, why we have to file our taxes jointly in Ca.)

    So…isn't this ruling saying that the federal gov't. has to recognize all legal marriages? That they can't discriminate between marriages…ie: some are recognized and given benefits while some are not.??

  • 236. Kathleen  |  July 8, 2010 at 2:16 pm

    @ Lora. At the moment this decision only affects the state of MA because it's a District Court ruling. If it is upheld on appeal at the level of the Supreme Court and thus becomes law across the country, the fact that you're legally married in California will mean the federal gov't must recognize your marriage.

  • 237. Felyx  |  July 8, 2010 at 2:17 pm

    Thank you Kathleen. This goes a long way in giving me hope. So far I understand your explanation to say that:

    1) If I can get married in MA (considering their residency requirements) then yes I can bring my partner over just as soon as this case is finalized and the laws are in place.

    and

    2) If I am already married and live in MA right now then I can sponsor my partner.

    MA only permits residents to marry if the state of residence validates the marriage performed. Considering how quickly the laws change, it may well be worth waiting several months or even longer rather than moving and potentially waiting a year to establish residency…of course for those who are yearning and able, relocation is certainly a refreshing option! Thank you Kathleen for restoring my hope! (Did I mention I love you!!!)

    Felyx & Kirill (Who succumbed to exhaustion at 7 AM Moscow time and is now asleep.)

  • 238. Lora  |  July 8, 2010 at 2:17 pm

    Oh, I hope so!! I'm paying through the nose what my co-workers basically get for free! Pisses me off!!

  • 239. Felyx  |  July 8, 2010 at 2:22 pm

    FYI and FWIW It is good to quote the comment directly or at least to note the person and the date and time stamp for reference.

  • 240. Lora  |  July 8, 2010 at 2:23 pm

    I'm in the same boat as you. We are considered legally married, so I would think this ruling would affect us in a positive way.

  • 241. Kathleen  |  July 8, 2010 at 2:27 pm

    I love you too, Felyx. My head is spinning from trying to keep up with all the questions.

    I want to reiterate to everyone here — all of my answers (with the exception of the one that included the LAMBDA attorney answers about appeal and jurisdictional relevance) are just my opinion based on my understanding of the ruling and relevant law.

    NO ONE should take my answers as legal advice or even the final word on what this all means. If it's necessary to find out how this ruling might impact your life, it would be best to consult an attorney.

    And keep in mind: (1) it will get appealed, (2) right now it applies only to the state of Massachusetts and (3) the decision may be stayed, pending appeal so that it won't even be in operation in that state.

  • 242. Lora  |  July 8, 2010 at 2:27 pm

    My marriage is legally recognized in Ca. since I was married when it was legal to do so…even though now ss couples can not get married. Does that mean that the feds must recognize my marriage?

  • 243. Felyx  |  July 8, 2010 at 2:30 pm

    Kathleen you are awesome!!! Your caveats are well understood. None the less, you have totally made my day! We love you!

    F&K

  • 244. Federal Judge Rules Part &hellip  |  July 8, 2010 at 2:42 pm

    [...] one that, though I would like to talk about at length, don’t have time to.  So please read Robert Cruickshank’s post on the ruling. Excerpt below. As we await the ruling from Judge Vaughn Walker on Perry v. [...]

  • 245. Dave Calvert  |  July 8, 2010 at 2:50 pm

    Gay Marriage should be allowed in EVERY state in the United States!

    It is time that Americans accept each other unconditionally. Gay Americans have every right to be able to marry the person they love. I have a good friend going to South Africa to get married to his partner because they can't get married in San Diego. That is ridiculous. Canada is making a fortune by marrying American gay citizens. If we really want to "jump start" our economy again, let gay Americans get married. Their weddings will be FABULOUS!

  • 246. Kathleen  |  July 8, 2010 at 2:56 pm

    Here's the companion case, for anyone who want to read it: http://www.scribd.com/doc/34072925/DOMA-decision-

  • 247. Sheryl Carver  |  July 8, 2010 at 3:20 pm

    If I understand the opinion of Kathleen's friend at LAMBDA, the ruling currently applies only in MA. If it is appealed to the 1st. District Appeals Court & the 1st District agrees to hear the appeal & upholds Judge Tauro's ruling, then the ruling applies only to those states covered by the 1st District. The only way to have it cover ALL states is if the ruling is again appealed to SCOTUS, where the Court would have to agree to hear the appeal AND uphold it. Am I right so far? If I am …

    Then strange as it may seem, the Obama administration could actually be helping us by appealing, as that would be the only way to get the ruling to cover all states. Of course, there's the risk that Tauro's ruling would be overturned by the !sr District or SCOTUS, but it seems risky to expect each state to follow in MA's footsteps & win each time.

    To the already overloaded Kathleen, help!!!

  • 248. Sheryl Carver  |  July 8, 2010 at 3:22 pm

    Sorry – that's "1st District" not "!sr District". Too excited – fingers not hitting keys correctly.

  • 249. Kathleen  |  July 8, 2010 at 3:28 pm

    @Sheryl, your understanding of answer from my friend at LAMBDA is correct. I suppose that all things considered, it might be better to have the Obama administration continue to defend this rather than leaving the case to be taken up by some group of zealots from Congress. Haven't really thought that through.

  • 250. Kathleen  |  July 8, 2010 at 3:32 pm

    Oops didn't catch this… it's actually the 1st Circuit (Court of Appeals), not 1st District… just so we don't further confuse anyone.. :)

  • 251. Robert Cruickshank  |  July 8, 2010 at 3:40 pm

    1. My understanding is that this impacts only those states where same-sex marriage is recognized, given that the judge ruled the problem with DOMA was it overstepped state authority to define marriage.

    2. The portion of DOMA that overrode the “full faith and credit” clause of the Constitution, enabling states to refuse to recognize same sex marriages performed in other states is still in place. That provision is likely unconstitutional as well, but these cases were tailored narrowly.

  • 252. Felyx  |  July 8, 2010 at 3:43 pm

    @Kathleen

    Left field question here…

    If the case (or two cases as it were) were not appealed, could the SCOTUS choose to hear the cases anyway? or must there be an appeal in order to allow SCOTUS to take the cases.

    Second question…

    Is it possible that SCOTUS could combine all three cases (these two and P8) and make a comprehensive ruling?

    Curiously,
    Felyx

  • 253. Sheryl Carver  |  July 8, 2010 at 3:46 pm

    Thanks so much, Kathleen!

    And for catching my mistake in using "District" instead of "Circuit". It is always better to use the correct term, but especially important when discussing legal matters.

    I don't envy the Obama administration's position right now. Even if they decide that the best way to get rid of most of DOMA nationally is to appeal all the way to SCOTUS, and do the bare minimum to defend DOMA, the pro-SSM group will bash them for appealing, & the anti-SSM crowd will bash them for not putting up a better defense. If they do NOT appeal, all Republicans will scream bloody murder. (Oh, wait, that will be the same as now.)

    Again, thanks for helping us all try to understand this, Kathleen. You are doing an amazing job!

    <3

  • 254. Kathleen  |  July 8, 2010 at 4:02 pm

    @Felyx,

    First question – NO. SCOTUS can't just take up a case without someone asking them to – in technical terms, a party must file a petition for a writ of certiorari with the court.

    Second question – can't see that happening because they are challenging two different laws, and not even two different federal laws. One challenges a state law on federal grounds, the others challenge a federal statute.

    The Court MIGHT combine the two DOMA cases, but I can see arguments for keeping them separate, too — they are different plaintiffs (individual citizens within a state vs. the State itself) and rely on different arguments. Even the district court, though it heard the two cases together and issued the rulings simultaneously, issued two separate rulings.

  • 255. Ben  |  July 8, 2010 at 4:22 pm

    Yeah … this also hangs NOM out to dry, on any future case. That's always been their core argument, and now it's gone up in flames.

  • 256. Kathleen  |  July 8, 2010 at 5:08 pm

    @Felyx,

    If the Supreme Court were to uphold one of these cases which strikes down section 3 of DOMA, it would only mean that the feds would recognize, for the purpose of federal benefits and responsibilities, any marriage recognized within the state of residence. It would do nothing to establish marriage equality in the states which choose not to recognize it.

    As to the Prop 8 case, IF the Supreme Court upholds Walker's ruling, then it would mean that the law it establishes would be binding all across the country. However, just how much effect that will have will depend on what facts Walker relies on to strike down Prop 8 (of course, this all assumes he strikes it down).

    Here's a breakdown:

    If Walker's decision is that ANY law which prohibits ss marriage violates the US Constitution, and that decision is upheld all the way to the Supreme Court, then it would mean that ss marriage must be legal throughout the country. That would mean the death of DOMA Section 2, because clearly if a state must allow ss marriage, it must also recognize those marriages performed in other states. I call this THE BIG WIN

    But there are other ways that Walker can strike down Prop 8 without making that broad decision.

    1. If he decides that the way California is violating the US Constitution is by offering 'everything but' marriage, i.e., domestic partnerships, but not marriage, then (if upheld on appeal) it would mean that if a state wants to offer ss DPs (or CUs) it has to allow ss marriage. This would affect states like New Jersey and New York who offer official recognition to ss partners, but don't allow marriage. But it wouldn't mean that every state must necessarily give ANY official recognition to ss couples.

    2. If he decides that California is violating the US Constitution ONLY because it extended a right and then took it away (and the decision is upheld on appeal) then, even though it would apply to the entire country, it would have very limited precedent value outside California. It could only be used in other similar situations – like what could potentially unfold in DC. In DC, there is still a group of people fighting in the courts to have the right to put the question to a popular vote. If they're successful in getting the vote, and the vote goes their way, then this case would apply and they wouldn't be allowed to strip away a right already granted.

    3. If he decides that California is violating the US Constitution ONLY because it has a scheme that treats gay people unequally by allowed some to be married and others not, then it would strike down Prop 8, but would be highly unlikely to apply to very many other states. Even if upheld on appeal, it would only apply to those states who recognize SOME ss marriages, but not ALL ss marriage. At the moment, that's a situation fairly unique to California, and maybe a few states which recognize out of state marriages but don't allow them in their own state (like NY?)

    Then there's one other important twist to all of this. If Walker reaches the conclusion that gs&ls constitute a suspect (or quasi-suspect) class and are thus entitles to heightened scrutiny, and that part of the decision is upheld on appeal, it is a ruling that will have an impact on ALL laws which discriminate against g&ls-. It will mean that any law which discriminates will have to withstand heightened scrutiny to pass constitutional muster. I call this the EXTRA BIG WIN :)

    Does that answer your questions or just muddy things up worse than before?

  • 257. Ben  |  July 8, 2010 at 5:33 pm

    About the use of rational basis to destroy Section 3 of DOMA, at least from my point of view: if this stands, it provides a judicial basis that anti-SSM positions are suspect, even under the lowest level of scrutiny. Essentially, at least as I see it, this could prove to be very, very helpful for us in the future. Having read the ruling, it’s one of the more inspiring legal papers I’ve seen. Hopefully, this will start a national debate about whether or not DOMA can even stand … after all, it’s lost one of its major components already.

  • 258. Enrique  |  July 8, 2010 at 5:33 pm

    Kathleen, thanks for keeping us informed, maybe my question has been posted before but I would like to know if this would allow to have the federal benefit of sponsoring your parner from other country to bring him to the US if I live in a State where SSM is permited?

    Thank you, this is a great day though!!

  • 259. thad  |  July 8, 2010 at 5:59 pm

    Elena Kagan acting as Solicitor General filed the brief defending DOMA. Assuming she is confirmed to the bench, and assuming this case is eventually heard by SCOTUS, would she be required to recuse herself? And how badly would that hurt our chances?

  • 260. Kathleen  |  July 8, 2010 at 6:41 pm

    I don't think Kagan was attorney of record in either case. However, I don't know the specifics of the rules governing recusal of a Supreme Court justice, so I don't know whether she would be disqualified from hearing the case.

    I think if she must recuse, it's not really good for us. I suspect the best we could hope for in that case would be a 4-4 tie. (just my guess) In the case of a tie, the Court basically lets the lower court ruling stand (in this case, it would be whatever the 1st Circuit Court of Appeals decides) and the Supreme Court decision doesn't set precedent.

    So, it would kind of be as though the Supreme Court hadn't accepted the case in the first place. Thus, the 1st Circuit ruling would stand, but it would only apply to states in its jurisdiction.

  • 261. Billy  |  July 8, 2010 at 6:45 pm

    Hmmm… ;-D

  • 262. ĶĭŗîļĺęΧҲΪ  |  July 8, 2010 at 6:49 pm

    @Kathleen

    What grounds / laws does the federal government have to refuse a US citizen to sponsor a foreign national by means of an intended marriage in a US state that would permit such a marriage (even if they do not reside in that state — after all, any citizen has the right to get married in any state of the country!)? If the 3rd part of DOMA is no longer valid, how can any particular state force the US Government to not allow a US citizen to marry in another state?

    Is it not true that it is only the US Government that handles immigration issues and not the states?

    I understand all the other speakers’ position that this decision means federal government has to recognize same-sex marriages performed in various states and give those couples their federal benefits.  But the question is, what about couples who want to get married and their federal benefits that their heterosexual counterparts enjoy before they even get married (like sponsoring a fiancé(e) to enter the country so they could get married there)?  Unequal treatment?  Again???

  • 263. Billy  |  July 8, 2010 at 6:52 pm

    http://www.facebook.com/todayshow#!/todayshow?v=a

    Here's where you enter the contest. I'm going over to Bruce's house this weekend, and we'll fill it out then! Wish us luck :D

  • 264. Kathleen  |  July 8, 2010 at 7:28 pm

    Other fact I found interesting is that Judge Tauro is almost 80 years old and yet he 'gets' it.

  • 265. Federal Judge Rules Secti&hellip  |  July 8, 2010 at 9:00 pm

    [...] Judge Rules Section 3 of DOMA Unconstitutional Hurray! My YouTube Profile Video of the moment: Dorito Chip Quote   + [...]

  • 266. Straight Grandmother  |  July 8, 2010 at 9:10 pm

    And Straight Granmother brings up the rear LOL. We are busy picking our almond crop and it tires me out so I went to bed early. Because of the time difference between Boston & France I missed the excitement of the announcement of the decision. Also got up early to pick more almonds this morning and didn't check the news. Just now checking P8TT and WOW! I missed all the excitement. However since it was new to me, my eyes were glued to every post here. All I can say it a Win is a Win, is a Win. We won this one and I firmly believe we are going to win ALL of them. I wish so much we could get a reaction from Olson & Boies on this it would be interesting to hear their perspective. Now I gotta go read the decsions.

  • 267. Kathleen  |  July 8, 2010 at 10:38 pm

    Just to clarify for all those who were asking about how this impacts petitioning for Fiance Visas …. it’s POSSIBLE that the feds COULD claim this ruling has no impact on that question because the facts in these cases only involve couples who are already married (or who were, in the case of widows and widowers). Just sayin…. we’ll have to see how this all plays out.

  • 268. Straight Grandmother  |  July 8, 2010 at 10:56 pm

    So happy, so happy with this decision that I decided it was about time I donated to GLAD. I do not think we will ever win Equal Rights through the legislative process any time soon. Not that it can't be done, just that it won't be soon, and perhaps in some parts of the country it can never be done. I am a grandmother my grankids are already 2 years old. I don't see why my right to be their legal grandmother (my daughter is not the birth mother) gets to be voted on. I believe in the Constituition and Equal Protection under the law, and the way to get that is through the courts. I don't want to wait until my grandchildren are 20 years old and I'll be in my 7th decade to become their legal grandmother. So I need to support those organizations that are focused on bringing court cases for GLBT people. Each court case brings me one step closer to being a legal grandmother. This takes money. My husband and I are not "cash flush" but even I can squeeze out a donation to GLAD and I hope you can as well. It costs money to bring these court cases, if you want the cases that will benefit you and your family to be presented in court then make a donation. There is a comment section when you make your donation I suggest we all enter the link to this website. For the record I have donated to this website also.

  • 269. Skemono  |  July 8, 2010 at 11:09 pm

    My favorite part of this–well, one of them–is this:

    [T]he government does not believe that DOMA can be justified by interests in “responsible procreation” or “child-rearing.”

    Even the people who have to defend this admit that the “it’s for the children” is bullshit.

  • 270. Sagesse  |  July 8, 2010 at 11:14 pm

    Having now slept on this news. There are a lot of unintended consequences if these decisions are upheld at the Supreme Court level. First, federal marriage benefits are a big deal, in $ terms, to the individuals affected. Much bigger than state benefits (social security survivor benefits and joint income tax filing the whole gamut of military and veterans benefits come to mind).

    These decisions would shift the burden of second class citizenship from legally married same sex couples to couples who live in states that do not permit or recognize same sex marriage, and couples who are in domestic partnerships. It would also decrease mobility rights if a married couple would have to sacrifice federal benefits to move to a state where they're not recognized.

    Ignoring how it would work legally, this kind of differential treatment is untenable. It is completely and obviously unfair. Something would have to give, probably starting with DOMA itself, and probably domestic partnerships. You can't have one set of legal relationships that gets federal benefits and one that doesn't. Separate but equal would become separate and definitely not equal.

    If upheld, these decisions have rearranged the dominos that have to fall. Getting rid of DOMA is on the agenda anyway. But enforced turning of DPs and CUs into marriage… now that would be a nice step forward. If you combine the poll numbers for marriage and DP's you get the kind of majority approval that exists for most LGBT rights like employment and housing protection and repeal of DADT.

    Just thinkin' out loud.

  • 271. Felyx  |  July 8, 2010 at 11:14 pm

    WOW!!! That really helps! It really shows how truly powerful the Prop 8 case can be. Too bad you (Kathleen) can't just get an advanced transcript of his ruling so that you can interpret it all for us when the ruling comes down. You know you are going to get pelted with questions! LOL Of course giving these answers are such a benefit to reassuring us all about where we potentially stand. Thank you!

    With love and gratitude,
    Felyx

  • 272. Felyx  |  July 8, 2010 at 11:18 pm

    Thank you Kathleen.

    That is what I though but hearing it from you makes all the difference. Moreover I am sure there are others who were wondering.

    On another note, perhaps you might project for us the likelihood that a favorable SCOTUS ruling on all three cases would cause the US to be another nation that allows full marriage equality. I am thinking that a favorable SCOTUS ruling on just one of the DOMA challenges would effectively overturn DOMA part 3 and that a favorable ruling on P8 would allow for the overturn of all state DOMAs. It might take awhile for DOMA part 2 to be challenged and overturned but with the two favorable rulings mentioned I am thinking that there is a possibility that we will have succeeded in much of what we wanted to accomplish. (I say this with the understanding that it will take years for cases to make it through the courts and that rulings are complex and can affect resulting laws in a number of ways.)

    Again, thank you for everything,
    Felyx

  • 273. Casey  |  July 8, 2010 at 11:29 pm

    LOL, JonT. You're probably right.

    I hope some small, rational voice in the back of her tiny little mind is raging at her, though.

    I feel renewed today in my drive to keep fighting, keep writing letters to those in power, and keep talking with friends, family, students, and colleagues. I feel like a big queen on my own pride float right now!

  • 274. Ķĭŗîļĺę&  |  July 8, 2010 at 11:39 pm

    Courage Campaign just sent out emails urging people to sign the letter to the President Obama to ask him not to appeal Judge Tauro's decisions in DOMA cases.

    Now, the question is, what's the better way for us: to appeal or not to appeal?
    If Obama Administration appeals it, SCOTUS may have to intervene faster and ultimately make the ruling that will apply to all the states that recognize same-sex marriages, if not to all the fifty states.
    But if they do not appeal, SCOTUS may decide to procrastinate until other lawsuits like that start coming in from other jurisdictions.

    Apparently, Courage Campaign is sure we do not need a repeal.

    Opinions?

  • 275. jonelle  |  July 8, 2010 at 11:44 pm

    Subscribing

  • 276. Felyx  |  July 8, 2010 at 11:50 pm

    I'm not signing! I want this to go to SCOTUS!!!

  • 277. Straight Grandmother  |  July 8, 2010 at 11:53 pm

    I am catching up on yesterdays news and am rading the court decisions. First I am reading the decsion that was brought by GLAD on page 5 in a footnote I saw this quote of Representative Lipinski Democrate of Illiniois (the Judge quoted Lipinski), "Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation" So I decided to call Congressman Lipinski's office and ask what the Congressman's current stance on GLBT marriage is. I got of course a staffer, and shared with him Congressman Lipinski's testimony in 1996 when DOMA was being debated and the fact that the Federal Judge quoted Lipinski in his decision in a footnote on page 5. I asked him what Congressman Lipinski's current position is on gay marriage adn the staffer said he was against it. I asked, "And he is a democrat?" He replied, "Yes he is a democrat." I said, "Oh a Democrat in name only then." whereupon the staffer hung up on me LOL. I think I will call his local press and alert them to the Judge quoting the Congressman in the decision and the Judge saying that this is discrimination. Everybody call Congressman Lipinski (202) 225 – 5701 and ask him if he is embarassed because a federal Judge just called him a biggot??? We have got to revel in these few and far between victories just to keep our spirits up.

    I am sure I will comment more as I catch up to all of you.

  • 278. Alan E.  |  July 9, 2010 at 12:04 am

    gmail has this great ability to lump together "conversations," so I can read all of the new comments in a row without having to filter through the P8TT site again to see what's new where.

  • 279. Alan E.  |  July 9, 2010 at 12:10 am

    Each state can determine who can be recognized as married, unless that unrecognition is unconstitutional. I don't see a disconnect. For example, states cannot limit marriage to people of the same race or ethnicity. (see Loving v. Virginia)

  • 280. Franck  |  July 9, 2010 at 12:27 am

    Amazingly, a coworker of mine who I've recently "come out" to tried to use that argument against same sex marriage. Amazingly enough, even though my argument didn't fully convince him, he at least recognized he just relied on preconceptions rather than actual facts.

  • 281. Jeff Baily  |  July 9, 2010 at 12:28 am

    So there are two parts to this MA ruling. Regarding the part filed by Atty General Martha Coakley regarding the states rights issue:

    Could the DOJ dodge the appeal on that one saying-yes Massachusetts, you are a soverign state, you can use the Federally granted money however you wish to spend it. (i.e. Federally funded MassHealth to gay spouses or god forbid, bury dead spouses next to each other in Veteran cemetaries)

    Could DOJ just give the okay to MA given the fact that they are the only state that has 6 years of evidece of Federal discrimination towards same-sex married couples?

    And therefore, wait until the 4 other Atty Generals to file similar suits in their courts? (CT, IA, VT, NH)

    If so, would this lessen the chance for DOMA to be attacked across the board?

    Just curious if anyone could clarify…

  • 282. Franck  |  July 9, 2010 at 12:32 am

    One of the things I love about the American political system, no matter how inefficient it can be, is that you can actually voice your opinions to your elected representatives. I don't remember that having ever been possible here, at least practically…

  • 283. Straight Grandmother  |  July 9, 2010 at 12:40 am

    Kirille, Now that you posted previously I can spell your name correctly (although my pet name, my affectionate name for you will always be Krill) I am with YOU! If we are right we are right. I think it is far to early for Courage Campaign to make this decision to recomend "Don't Appeal." Number ONE I want to hear from Bois and Olson what do they think? Number two I want to hear from GLAD who put on this court case.

    It is kind of like poker, saying "All In." I think it SHOULD go to the Supreme Court. Unless, Boise/Olson/GLAD/ support this "Don't Appeal" strategy I ain't signing anything. Gay Inc was never in favor of these court cases anyway, they prefer to wait years and years to change public opinion. You know what? My Grandchildren are 2 years old already, and I am not their legal grandparent. I ain't waiting any more, I am not waiting until they turn 20, bring it on, all the way to the Supreme Court. Each case like this brings me closer to being the legal grandparent to my grandchildren.

    Look at Kirille and Shun, not being able to live and love the person they wish in the United States of America, NOW. Not in 20 years, NOW. Unless Olson/Boise/GLAD say differently I urge everyone to don't sign the Courage Campaign petition to Obama.

    Why should this ruling stand only in Masachussets (prolly spelled that wrong) which is what will happen if it is not appealed? There are 50 States in this country, make it the law of the land. Have the COURAGE of your convictions. For me and my family I am ALL IN ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !

  • 284. Shun  |  July 9, 2010 at 12:52 am

    OK for those that wondered what this case meant for binational couples, here's what the folks at Immigration Equality has to say:

    Yesterday a Massachusetts federal district court judge sided with the Gay and Lesbian Advocates and Defenders and with the state of Massachusetts and found that it is unconstitutional for the U.S. federal government to refuse to recognize same sex marriages that are validly entered into in the couple’s state. This is a huge victory and we should all take a moment to celebrate! But, this battle is far from over.

    Because this is an important case politically and constitutionally, it will certainly be appealed. The next step will be an appeal to the First Circuit Court of Appeals, and from there the case will inevitably to to the U.S. Supreme Court. The ruling by the district court judge will be “stayed” during these appeals, meaning that until the Supreme Court eventually makes a decision, DOMA will remain in effect, even in Massachusetts.

    Why would the Obama administration appeal this ruling?

    Regardless of the personal beliefs of the president (which are not clear here anyway), the president and attorney general are usually obligated to defend legislation that has been duly enacted by Congress.

    What happens to binational couples if the Supreme Court finds DOMA unconstitutional?

    If, eventually, the Supreme Court upholds the ruling that DOMA is unconstitutional, same sex couples that are validly married, would be able to receive federal benefits, including immigration, based on their marriage. Basically, this would mean that binational couples who live in the handful of states that allow same sex marriage could get immigration benefits, and couples who live in states with mini-DOMAs could not.

    Where do we go from here?

    We must continue to pursue rights for binational couples on all fronts. It will probably take several years for this DOMA challenge to reach the Supreme Court, and no one can predict what the outcome will be. Certainly a victory in the Supreme Court striking down the federal recognition section of DOMA would be a huge victory for binational couples (at least giving them the option to move to LGBT friendly states to pursue immigration benefits.) Meanwhile, we must continue to push for passage of an LGBT inclusive CIR and for passage of the UAFA.

  • 285. Franck  |  July 9, 2010 at 12:56 am

    Thanks for the info, Shun.

  • 286. fiona64  |  July 9, 2010 at 1:17 am

    Friends in the SF Bay Area who want to see "8: The Mormon Proposition," mark your calendars for Thursday, 7/22/10. The Metropolitan Community Church of San Jose, (484 E. San Fernando Street, SJ, CA – we share space with Grace Baptist at that address) is screening the film at 7:00 PM. There is plenty of parking and refreshments will be available. Donations to MCCSJ will be graciously accepted, but are not required to join us for this event.

    I hope to meet some of you in person that night!

    Love,
    Fiona

  • 287. Straight Grandmother  |  July 9, 2010 at 1:51 am

    I am posting a lot because I am ahead of you in the time zone, I am kinda waiting for everyone to "wake up". In Judge Taurp's decision on page 5 he also quotes from 1996 Representative Barr, (In the footnotes). You will be glad to know that now, Bob Bar repudiates his decision to co sponsor DOMA. http://en.wikipedia.org/wiki/Bob_Barr

  • 288. Alan E.  |  July 9, 2010 at 1:58 am

    Is it possible that SCOTUS could combine all three cases (these two and P8) and make a comprehensive ruling?

    I don't think so because they are arguing 2 different points.

  • 289. Alan E.  |  July 9, 2010 at 2:05 am

    I think the States Rights issue is a better shot than Equal Protection with this court. "States rights" have been a conservative call for many years, since before the Civil War era.

  • 290. Alan E.  |  July 9, 2010 at 2:50 am

    I think this is one of the most important parts of the decision, and Ampersand put it concisely (bold mine):

    I think this decision puts the folks who have been saying “let the states decide,” while really opposing marriage equality, in an interesting position. The ruling says that the Federal government has to respect state decisions on this — even if a state decides to recognize same-sex marriages. Now most of those folks will have to come up with some rationalization to explain why when they said they wanted the states to decide, they didn’t mean that they wanted the states to decide.

  • 291. Straight Ally #3008  |  July 9, 2010 at 3:01 am

    That's one big house of cards that needs to collapse. Maybe this is a nice little push.

  • 292. Felyx  |  July 9, 2010 at 3:10 am

    Straight Grandma just two more 'grandkids'…Hugs to you from East and West!

    F&K

  • 293. Sagesse  |  July 9, 2010 at 3:16 am

    Kathleen, where I find these judgments heartening is that they clearly poke the same holes in the same arguments that the proponents are still using for Prop 8. Every time a judge looks at 'responsible procreation' and 'protect marriage' and 'protect the children', they see fallacies in these arguments. And NOM et al have nothing left, and nothing new to argue with.

  • 294. Sheryl Carver  |  July 9, 2010 at 3:17 am

    I, too, am not signing.

    I, too, think it's time to shoot for the big prize.

    And THANK YOU again, Kathleen, for helping all of us non-legal types get a handle on the situation. Otherwise, we'd all be floundering around trying to figure out what it means & what can come next, as I've seen from comments on other sites.

  • 295. Felyx  |  July 9, 2010 at 3:19 am

    Maggie quit to ride a bus,
    Brown-hole's left to make a fuss.

    Down comes DADT and DOMA too,
    Who is left for NOM to screw?!

    The Mormon's cry, "It's just not fair!"
    As faithful wallets are now gone bare.

    The truth is shining on our side.
    The Rainbow's Out. It's on! Gay Pride!!

  • 296. Bob  |  July 9, 2010 at 3:22 am

    Good question Fern, I don't sign the letters, because I do not have voting rights in the U.S.

    I think it borders on fraud,

    I've also been thinking about how we have fun turning Noms letters to our favour and sending them, this also is fraud.

    If as is speculated , it would be better not to sign the present letter to Obama, what if Nom got onto that and had all their people send it for us. See what I mean

  • 297. Ronnie  |  July 9, 2010 at 3:23 am

    standing O……<3…Ronnie

  • 298. Richard A. Walter (s  |  July 9, 2010 at 3:27 am

    You are welcome, Kirille. For me, it is all a part of making sure that everybody who wants to see this gets the chance to see it. I am so glad I was able to do this for you, and it also gave us a chance to spend some unrushed time with you, Felyx, and Papa Foma. It is also part of my efforts to make sure that no Rainbow Tribe member is left behind or thrown under the bus as we fight for our civil rights.

  • 299. Straight Grandmother  |  July 9, 2010 at 3:28 am

    Me too Standing O

  • 300. Sheryl Carver  |  July 9, 2010 at 3:33 am

    Actually, it occurs to me that it's more like the civil rights equivalent of the Berlin Wall. While unjust & built for all the wrong reasons, it has been very effective at keeping us from enjoying all the freedoms that straights have. Rulings this week have caused some major cracks in its foundation. Don't know how long it will take, but it's coming down completely!

    To quote Robert Frost,
    "Something there is that doesn't love a wall, that wants it down."

  • 301. Richard A. Walter (s  |  July 9, 2010 at 3:34 am

    Sagesse, as a veteran of the US Navy whose husband is a veteran of the USAF with in-country time during Vietnam, I could hug you, kiss you,m and squeeze you all over for posting this. Once again, you have proven how valuable this site is to the Rainbow Family and Tribe.

  • 302. Alan E.  |  July 9, 2010 at 3:34 am

    I’ve also been thinking about how we have fun turning Noms letters to our favour and sending them, this also is fraud.

    Not so. We are only taking their information (which is not trademarked or copyrighted) and changing it as we see fit. They are free to do the same (and do) with any set up that other sites provide with pre-formatted letters. Not fraud at all.

  • 303. Felyx  |  July 9, 2010 at 3:38 am

    This ruling is beautiful for so many reasons. For one, the clock is ticking for the military to overturn DADT and revise the military code of conduct. If MA gays (et als.) can get married legally and the Feds have to recognize them then the military is skating on thin ice trying to discriminate against legally married couples…it won't hold up! Even the military is not that privileged!!!

    I think the brass knows its discriminating days are numbered….now they are either stalling for time to get their shituff in order or they are just shpitting in the wind!

    We are strong and we can't fail!!!

    Felyx

  • 304. Richard A. Walter (s  |  July 9, 2010 at 3:42 am

    Way to go! Mazel Tov! I will concur on the Standing O!!

  • 305. Kathleen  |  July 9, 2010 at 3:52 am

    Alan's right. There's nothing wrong with taking the contact info NOM provides and sending any message you want.

    However, if you sign a petition which states something like "I am a citizen of the United States" or "I reside in California" and that's not the case, then you're making a false statement.

    I looked at the CC petition and there is nothing in the statement you're signing that says anything like the above. But you should be honest in giving the postal code info. If they disregard foreign post codes, then so be it.

  • 306. Ķĭŗîļĺę&  |  July 9, 2010 at 3:54 am

    Read Felyx's poetry and envy me —
    I'm lucky to have this man oversea!
    Someday we will write our poems together —
    We're both kinda poets to some degree!

    I love you, Felyx!

  • 307. Elsie  |  July 9, 2010 at 3:58 am

    Just delurking to say <3. You are all wonderful!

  • 308. Kathleen  |  July 9, 2010 at 4:00 am

    Agreed. One of the comments even has inaccurate info. It was only Section 3 of DOMA that was litigated – no affect on Section 2.

  • 309. Richard A. Walter (s  |  July 9, 2010 at 4:03 am

    You're rather fabulous yourself, Elsie!

  • 310. Richard A. Walter (s  |  July 9, 2010 at 4:07 am

    Yes, but it did not take Brainless Brownhole any time at all to send out a scare letter saying that the entirety of DOMA had been struck down, and that his marriage and all other marriages were threatened, and that states would no longer be allowed to prevent ssm.
    I do know that after we return from DC with our marriage license and certificate, we are going to begin searching out the other couples who have gone to other states and then go to AFER, ACLU, and both law offices involved in Perry to file a class action suit to overturn section 2.

  • 311. Sagesse  |  July 9, 2010 at 4:27 am

    Every change in a law requires both houses to address it, and debate it and invest legislative capital to get it passed. Every anti-LGBT law requires elected representatives to put themselves on the line (again) to pass or reject it.

    Repealing DADT still leaves legislative clean-up to be done later, and with it, stirring up the same old arguments and ripping open the same old wounds. The fight begins again (a) to change DOMA and (b) to change the UCMJ (don't even want to think about the tone of the debate on that one). I believe you are correct that the UCMJ was never changed since DADT forbids homosexual conduct anyway (ie the military is different). But get rid of DOMA and the UCMJ clause has to go. What are they going to do, tuck it into the Defense Appropriation Bill next time around and hope no one notices?

    The least worst option is to repeal DADT, so service members will no longer be discharged and worry about the rest of it later, and that's what's happening.

    My father was in the Army Special Forces in WWII, and I respect the military, but I don't understand these guys. I think in some strange way this legislative clean-up was part of why the military was so determined to have the study completed first. It would have flagged all these issues beyond DADT repeal and sought legislative action (since the Pentagon can't change these things on its own). Of course, fixing everything at once could punt DADT repeal forever, but Gates and Mullen aren't as disturbed by that as some people. Nevertheless, I think some such idea was behind their statements that they wanted repeal, but they wanted to 'do it right'.

    All to say that if DOMA is overturned, it makes DADT repeal easier.

  • 312. Straight Grandmother  |  July 9, 2010 at 4:29 am

    @ Sheryl Carver | July 9, 2010 at 10:33 am
    Whoa what a GREAT Analogy, "Bring Down That Wall Obama Bring Down That Wall" Member Reagen saying, "Bring down that wall Mr. Gorbachev, bring down that wall. Sheryl, TOTALLY brilliant comment on your part.

  • 313. Straight Grandmother  |  July 9, 2010 at 4:33 am

    Good Franck, good for YOU! You have the ability by being a good decent gay person to change minds, but peodple gotta know you are gay.

  • 314. Bob  |  July 9, 2010 at 4:35 am

    standing O's for all the poets, , Yeah Felyx, I love to see the word Rainhbow used,

    My old Aunt on her last trip to Haiwaii, was so excited to tell me she saw the Rainbow poeple marching, she was trying to describe the parade she saw, and in her excitement she used that term, saying you know your people, the ones with the Rainbow.

    Straight Ally #3008, and also Krill, we're all feeling poetic today, what a joy, it moved Elsie from lurker to posting,

  • 315. Sagesse  |  July 9, 2010 at 4:38 am

    On the subject of peititions. Change.org has a petition supporting DADT repeal in the Senate. I signed using my Canadian address… they can consider it or ignore it at will, but I haven't misrepresented myself as a US voter. Generally I sign these, if they'll accept my signature, fully expecting to be ignored, but at least I did my bit.
    http://www.change.org/barackobama/petitions/view/

  • 316. Marius  |  July 9, 2010 at 4:40 am

    Kathleen, or someone els who might know this….
    How whil this affect binational couples married in another contry that recognice ssm, like Norway, and are thinking about moving over to the us?

    love
    Marius

  • 317. Sagesse  |  July 9, 2010 at 4:42 am

    Agreed these weren't all contrary views, but they were the first I had seen that weren't rants.

  • 318. Sagesse  |  July 9, 2010 at 4:52 am

    In Speeches, No One Got To Cross-Examine Them – David Boies from the Aspen Ideas Festival

  • 319. Sagesse  |  July 9, 2010 at 4:54 am

    Trying to embed the video from Aspen. If it doesn't work, I'll post a link

  • 320. Sagesse  |  July 9, 2010 at 5:02 am

    One more time, link to video of David Boies from Aspen Ideas Festival
    http://andrewsullivan.theatlantic.com/the_daily_d

  • 321. Kathleen  |  July 9, 2010 at 5:05 am

    I agree with 'all in' but I also agree with continuing to pursue all routes to gaining full equality.

    If I needed the city to build a road form my home to connect to the highway so I can drive my car where I need to go, it might take a really long time to get that approved. If, in the meantime, they're willing to establish a bus route two blocks form my house, so I can walk there and get some of the places I want to go, I'm going to simultaneously push for that. If the road is approved first, GREAT! But if the bus route is approved first, I can at least get some places I need to go, even if it's not all and is less convenient. And I keep pushing for the road.

    I know, silly analogy. It's what happens when I'm sleep deprived – I not only come up with silly analogies, I actually post them on a public board. :)

  • 322. Richard A. Walter (s  |  July 9, 2010 at 5:28 am

    Fiona, I was invited to this screening via FB, and even though I cannot attend in person, I will be there in spirit. We watched this yesterday at Felyx's and Papa Foma's with Kirille joining us via Skype. Even for those of you who lived through this due to living in this area, when you watch the movie, be prepared. You will need all the tissues and hankies you can find, and it will make your blood boil at points. But it is definitely on the MUST SEE list for EVERYONE who cares about equality.

  • 323. Ronnie  |  July 9, 2010 at 5:28 am

    The survey for DADT has been leaked….<3…Ronnie: http://www.towleroad.com/2010/07/dadt-survey.html

  • 324. Ronnie  |  July 9, 2010 at 5:29 am

    Here is the link to the pdf….<3…Ronnie: http://www.palmcenter.org/files/2010-DoD-Comprehe

  • 325. Kathleen  |  July 9, 2010 at 5:31 am

    @Joel, I think I've already answered this here, but in case you can't find it…. here's a brief recap:

    There are two things to consider as to whom the ruling will affect (1) it only affects people who are in the jurisdiction of the relevant court – this will change as the case goes through the appeals process and (2) it is limited to the facts of the case and what, exactly, the ruling states.

    As to the first consideration, right now the law only applies to MA because it's a District Court ruling and the affect is restricted to that court's jurisdiction, namely the State of Massachusetts. If this is upheld on appeal to the 1st Circuit Court of Appeals, then it will be binding to the states in the 1st Circuit. If it is upheld by the US Supreme Court, then it will be the law of the land and will be binding on the entire country.

    But the heart of your question probably has more to do with the second consideration–namely, do the facts of the case apply to a particular couple's situation? The ruling just says that if the federal government is going to extend benefits to married couples, it must give those benefits to all married couples, not just the os couples. Further, it says that the federal government must look to the individuals states' definitions of who is married and who is not in determining whether a particular couple is married for purposes of those benefits.

    So, It says that if you live in state X and state X says you're married, then the federal gov't considers you married and you get federal benefits. If you live in state Y and state Y says you're not married, then the federal gov't doesn't consider you married and you won't get fed benefits.

    It doesn't say that just because you were married in, say, CT and then moved to TX where the state won't recognize your marriage that you must still be recognized by the federal government as married. So, even if this is upheld all the way to the Supreme Court, it won't force any state to recognize a marriage, and will only grant federal benefits if the state in which you reside recognizes you as married.

    Does that clarify things? If not, let me know what still isn't clear.

  • 326. Kathleen  |  July 9, 2010 at 5:44 am

    There are two things I most regret not being able to see: Cooper being grilled by Walker during closing arguments and Blankenhorn being cross-examined by David Boies. These both have to do with watching the opposition squirm. I'm sure that says something not-so-nice about me as a person. (evil grin)

  • 327. Ķĭŗîļĺę&  |  July 9, 2010 at 5:45 am

    Brown of NOM just sent out emails referring to this article in National Review.

  • 328. gayathomemom  |  July 9, 2010 at 5:47 am

    Hey Everyone,
    Just commented on this load of sh!t over at GNOM… I mean NOM. http://nomblog.com/1113/ Go fill up their comments so they have to shut it down… :)

  • 329. Enrique  |  July 9, 2010 at 6:00 am

    Hi Shun, I just read the article from Immigration Equality, my concern is, what if I live in a state where SSM is allowed but I am not married yet? could it be possible to marry my partner in my state and then get the immigration benefit? I am kind of confused, thanks :)

  • 330. Richard A. Walter (s  |  July 9, 2010 at 6:00 am

    I linked to the survey from the Towleroad article, and am printing a copy of it now. I have also saved it to my computer. This will have some use for all of us. Thanks for posting this.

  • 331. Ronnie  |  July 9, 2010 at 6:03 am

    you're welcome….<3…Ronnie

  • 332. Alan E.  |  July 9, 2010 at 6:09 am

    I enjoyed watching Cooper squirm quite a bit. I think we all did.

  • 333. nightshayde  |  July 9, 2010 at 6:11 am

    I just posted this over there:

    I think we should all thank our lucky stars that we have a system of checks and balances in this country. One of the main purposes of the judicial system is to ensure that the rights of a minority do not get trampled on due to the tyranny of the majority. The mere fact that a majority feels a certain way about a certain issue does not make their opinion (or forcing others to live by their opinion) ethical or correct.

    Discrimination is wrong. Whether based in religion, tradition, ignorance, apathy, or any combination thereof, it's wrong.

    Equal rights should be guaranteed — not voted upon. If the judiciary has to step in to make sure that the rights of all are protected, they're doing their jobs. It's not "judicial activism" or "ruling from the bench." It's their JOB. Our constitution doesn't say that all men are created equal "except those over there whose romantic lives we find icky."

    Marriage has nothing to do with procreation. People don't have to be married in order to have children. People don't have to have children in order to be married. Marriage is about love — love between consenting adults who care so deeply about each other that they want to spend their lives taking care of one another.

    Peer-reviewed studies have repeatedly shown that children do just as well being raised in homes headed by same-sex partners as they do in homes headed by straight couples. For kids, the important thing is that they're being raised in a warm, loving, caring environment. The shape of the genitalia of parents is not relevant.

    Same-sex unions have been recognized in many societies since ancient times. Even the Catholic Church had a ceremony sanctifying same-sex relationships. Homosexuality exists in all societies whether it's hidden or not. It also exists in a wide variety of other species. Being born GLBT does not and should not doom one to a lifetime of being made to feel inferior.

    We all want the same things. We want to feel like we belong. We want to feel loved. We want to share our love with others. Many want to share that love with children, whether they're physically related to the children they're raising or not.

    The good Christians, Jews, Muslims and members of many other religions as well as the good atheists and agnostics realize that people are people, that love is good, that true life-changing love is difficult to find, and that nobody should be discriminated against because of whom he/she loves.

    The bad Christians, Jews, Muslims and members of many other religions as well as the bad atheists and agnostics think that their values are more important than anyone else's, and that people who don't believe as they do are inferior — they're just trying to make themselves feel better by demonizing others instead of looking within and healing their ugly hearts.

    Unfortunately the bad ones get more press than the good ones.

    We'll see if it gets through!

  • 334. JonT  |  July 9, 2010 at 6:16 am

    @Kathleen: 'Agreed. One of the comments even has inaccurate info. It was only Section 3 of DOMA that was litigated – no affect on Section 2.'

    Good. I read that comment too and thought: "Wait a minute, this didn't have anything to do with Section 2."

  • 335. JonT  |  July 9, 2010 at 6:18 am

    @Richard: 'Yes, but it did not take Brainless Brownhole any time at all to send out a scare letter saying that the entirety of DOMA had been struck down, and that his marriage and all other marriages were threatened, and that states would no longer be allowed to prevent ssm.'

    And I'm guessing, right after that was a plea for money? :)

  • 336. Alan E.  |  July 9, 2010 at 6:18 am

    I just got this email from AFA abut the NBC Today Show changes:

    Why you should never watch NBC's 'Today' show again
    Let NBC and its "Today" show know their decision to recognize two gay men as "husband and wife" is a reason to cancel your viewership.
    July 9, 2010

    Dear Alan,

    NBC's 'Today' show embraces homosexuality and gay 'marriage'The NBC network has just announced it will recognize homosexuals as married couples by opening its "Modern Wedding Contest" to same-sex lovers.

    After a meeting with gay and lesbian activists, NBC's "Today" show said it is changing the rules for its annual wedding contest to allow homosexual "couples" to apply for a wedding ceremony conducted on morning TV.

    Read NBC's official pro-gay statement here.

    NBC extended the deadline for applications to accomodate homosexuals who want to get "married" on a live television airing of the show in October.

  • 337. Mark M. (Seattle)  |  July 9, 2010 at 6:20 am

    After reading this on Yahoo news this morning I wrote the TODAY show and thanked them for their openmindedness.

  • 338. Sagesse  |  July 9, 2010 at 6:22 am

    The design and wording of the questions is atrocious. One wonders if the Westat people have any qualifications in survey design at all.

    Also, since it took all of two days for the survey itself to leak, how secure can the responses be?

    As the Towleroad article and those it links to indicate, the questions biased and leading.

    The questions ASSUME the person answering is straight.

    This survey is beyond insulting and I honestly don't know what the Pentagon hopes to get out of it of any value. I sincerely hope Obama has a few choice words for Gates and Mullen over this.

  • 339. Ronnie  |  July 9, 2010 at 6:24 am

    actually dimwits (anti family association) its 2 men as husband & husband & 2 women as wife & wide…but I guess you really the stupid….facepalms…..<3…Ronnie

  • 340. Ronnie  |  July 9, 2010 at 6:26 am

    sorry typos…. meant to say…but I guess you really are that stupid(to the afa)….<3…Ronnie

  • 341. Richard A. Walter (s  |  July 9, 2010 at 6:39 am

    @JonT–You are so correct. Complete with their little balloon to show you where to click so that you could throw good money after bad. I am so looking forward to confronting these brainless pretenses of humanity face to face in Raleigh, NC next month. Anybody in Cumberland Country, Hoke County or Robeson County wand to ride up with us? Or any other counties that are closer to Cumberland than Wake?

  • 342. Richard A. Walter (s  |  July 9, 2010 at 6:42 am

    Actually, it is even worse than that. The wording of the "survey" questions ASSumes that whoever is answering is a member of NOM, Narth, AFA, or FOF. These read more like something Fred Phelps and his bunch of loons would have written, or even Brainless Brownie or Eugene Delgaudio.

  • 343. Sagesse  |  July 9, 2010 at 6:46 am

    "Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and was one of the architects of DOMA."

    Well, that explains a thing or two.

    Novel, argument…. that the federal courts are part of the federal government, not checks and balances after all.

    Sigh.

  • 344. Straight Grandmother  |  July 9, 2010 at 6:46 am

    Don't see it posted. I also sent in a good comment but it did not get posted. We musta been to late LOL, they have caught on that the majority of the comments as Pro SSM, and they are not getting through. I'll ahve to go on thier facebook pages and read what is going on there. They ahve a second facbook page that is also NOM but more hidden I think, I'll ahve to find that one also it is something like NOM One Man One Woman facebook.

  • 345. Bob  |  July 9, 2010 at 6:48 am

    Sagesse, this petition acknowledges that it is of interest to people outside the U.S. it invites people from other countries to sign,

    I say right on, cause this is an issue that affects all people fighting alongside the U.S. military, and openly doing so.

  • 346. JonT  |  July 9, 2010 at 6:51 am

    Well, let's see, the first sentences:

    'Judge Joseph Tauro, in the federal district court in Boston, took it upon himself to strike down the 1996 Defense of Marriage Act (DOMA). With that stroke he would remove one of the key barriers standing in the way of imposing same-sex marriage on the nation as a whole.'

    I like how they always do that impose thing :)

    And then of course the author: 'Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and was one of the architects of DOMA.'

    Boo-fucking-hoo.

  • 347. nightshayde  |  July 9, 2010 at 6:54 am

    Still says "awaiting moderation." I keep checking, but I'm not holding my breath.

    I also commented on another blog post. They said that Ted Olson was trying to overturn marriage. I pointed out that their description seemed to be missing a few words — that Mr Olson is trying to "overturn unconstitutionally discriminatory marriage regulations."

    That one's in moderation, too. =)

  • 348. JonT  |  July 9, 2010 at 7:02 am

    Didn't see it – seems they probably cut off comments again :)

  • 349. Kalbo  |  July 9, 2010 at 7:14 am

    Not attacking the messenger or anything, but this notion of 'non-SSM state vs. SSM state' argument for Federal rights/benefits is suspect.

    It makes NO sense for the Fed gov't to deny an American in ANY state to sponsor their noncitizen partner, as we are free to get married in any state and live/move elsewhere. Logically, I just cannot see how that could impede immigration proceedings. They will not revoke your greencard if you move from MA to HI/TX/BFE … Right? Right.

    Now, do the benefits supplied via the states without SSM follow you (as they would be provided in eg MA)? Then I could see how that might be an issue as long as DOMA Sec. 2 stands, but for national issues not dealt with via an individual state, no way … No f*#@ing way … If it's a Fed matter (as immigration is), it doesn't matter in which state you reside; you can get married in one of the other 5 or DC.

    Who is writing this stuff at IE?

    (IANAL)

  • 350. matthew  |  July 9, 2010 at 7:22 am

    I'm so excited since reading this ruling yesterday.

    The judge issued a big smack down for all those with nothing but hate in their hearts. They know anti-gay legislation is based on nothing more than animus. Their made up arguments and scare tactics don't even pass the rational basis test.

    I want to hug this judge!

    And I want judge walker to issue a ruling in our favor so I can go hug him too!

    I feel such a sense of hope at the thought that by this time next year, we may see DOMA, DADT, and marriage equality bans all fall to the power of the constitution. As they should/

  • 351. Straight Grandmother  |  July 9, 2010 at 7:39 am

    Now if we could only get ENDA. I was reading why Clinton signed this bill when he was President. He put out a statement, remember this was 1996, and said congress jsut missed passing ENDA by one vote, and he hopes is will pass next year. Folks it is 11 years later, still no ENDA. More people would come out if they knew they could not loose their jobs for being GLBT. This is an insidus way to keep gays in the closet.

  • 352. Straight Ally #3008  |  July 9, 2010 at 7:51 am

    Good point, Kathleen. This is a fellow with real gravitas, even more than John E. Jones III had at the Dover trial. I haven't gone through what the DOJ wrote, but if the appeals court decided based mainly upon Tauro's written decision, then wow.

  • 353. Straight Ally #3008  |  July 9, 2010 at 7:56 am

    Precedent, probably, but removing a barrier to "imposing" same-sex marriages? Hardly – it can only apply to states where SSM is already legal. But then again, these guys are kings of the slippery slope argument, aren't they? Logical fallacies FTL.

  • 354. Shun  |  July 9, 2010 at 7:57 am

    SG, thank you for your inspiring words :)

  • 355. Alto  |  July 9, 2010 at 7:57 am

    Very nice. Good job.

  • 356. fern  |  July 9, 2010 at 8:09 am

    Just one question, I was asked to sign a form to Obama which I did, but I’m a Belgian national and used zip codes of where I lived “+- illegally”, I also can use a former zip from a former NSA post in Bavaria.
    The deed is done but I’d like to know if in doing so I might cause an embarrassment. If such would be the case I shall refrain in the future.
    Thanks.

  • 357. Straight Grandmother  |  July 9, 2010 at 8:16 am

    I read the ruling for the Plaintiffs who were individuals, I am a bit confused why the Judge ruled it was a 5th amendment violation, "Due Process" instead of a 14th amendment violation, "Equal Protection" I think it was the last page where he said the 5th amendment.

  • 358. Kathleen  |  July 9, 2010 at 8:20 am

    Read the section on "Due Process" here: http://en.wikipedia.org/wiki/Fifth_Amendment_to_t

  • 359. Felyx  |  July 9, 2010 at 8:28 am

    Such great news!!!! Popping Champaign over here! NC doesn’t have a DOMA and the legislature refuses to hear proposals for one. Considering that the Prop 8 case is coming so close to these two cases it looks like all three could possible reach the SC at nearly the same time with the potential to overturn everything discriminatory!

    High hopes from NC!

  • 360. Straight Grandmother  |  July 9, 2010 at 8:33 am

    DO NOT SIGN THE COURAGE CAMPAIGN LETTER TO OBAMA ASKING FOR THIS NOT TO BE APPEALED!!!

    If we are right we are right. I think it is far to early for Courage Campaign to make this decision to recomend “Don’t Appeal.” Number ONE I want to hear from Bois and Olson what do they think? Number two I want to hear from GLAD who put on this court case.

    It is kind of like poker, saying “All In.” I think it SHOULD go to the Supreme Court. Unless, Boise/Olson/GLAD/ support this “Don’t Appeal” strategy I ain’t signing anything. Gay Inc was never in favor of these court cases anyway, they prefer to wait years and years to change public opinion. You know what? My Grandchildren are 2 years old already, and I am not their legal grandparent. I ain’t waiting any more, I am not waiting until they turn 20, bring it on, all the way to the Supreme Court. Each case like this brings me closer to being the legal grandparent to my grandchildren.

    Look at Kirille and Shun, not being able to live and love the person they wish in the United States of America, NOW. Not in 20 years, NOW. Unless Olson/Boise/GLAD say differently I urge everyone to don’t sign the Courage Campaign petition to Obama.

    Why should this ruling stand only in Masachussets (prolly spelled that wrong) which is what will happen if it is not appealed? There are 50 States in this country, make it the law of the land. Have the COURAGE of your convictions. For me and my family I am ALL IN ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !

  • 361. Wren  |  July 9, 2010 at 8:42 am

    Ok, totally an aside, but has anyone here ever seen Steve Colbert recite this poem at the end of one of his episodes of Strangers With Candy (also featuring Amy Sedaris)?

  • 362. Sagesse  |  July 9, 2010 at 9:31 am

    Andrew Sullivan at The Atlantic collects a number of reactions as to why the DOMA cases might be overturned. These are serious discussions of the merits, not NOM-stlye diatribes.

    http://andrewsullivan.theatlantic.com/the_daily_dish/2010/07/doma-reax.html

    Always appropriate to weigh the contrary view. I’m certainly not in a position to comment, but others here are.

  • 363. ĶĭŗîļĺęΧҲΪ  |  July 9, 2010 at 9:41 am

    @Richard
    Thank you for making it possible for me to see the documentary!
    I would not be able to see it any other way!

    @Shun
    Facebook pages for Richard & me.

  • 364. Straight Ally #3008  |  July 9, 2010 at 9:47 am

    No, but I'm intrigued! I've only seen a couple episodes of that show.

  • 365. Sagesse  |  July 9, 2010 at 9:47 am

    This bit of news snuck by when no one was looking. The judge in the DADT trial in California has ruled that broad evidence is permitted.

    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/09/MNMI1EBF1L.DTL

  • 366. Lesbians Love Boies  |  July 9, 2010 at 9:50 am

    There is a post http://liveshots.blogs.foxnews.com/2010/07/09/new

    Kagan says she would recuse herself.

    Kagan revealed that she had reviewed Justice Department briefs and took part in discussions involving a California case (Smelt v. United States) to such an extent that it would create a conflict of interest if gets appealed to the Supreme Court. “My participation in the case was sufficiently substantial that I would recuse myself if I were confirmed and this case were to come before the Court,” Kagan wrote.

  • 367. Lesbians Love Boies  |  July 9, 2010 at 9:53 am

    Actually, the Mass. case she didn't answer if she would recuse herself

  • 368. Kathleen  |  July 9, 2010 at 9:54 am

    Thanks for posting this Sagesse. The article answers a question I’ve had and have been too busy (okay – too lazy) to look up — whether the judge was relying on the holding in Witt (9th Circuit) to determine that a higher level of scrutiny than mere rational basis is required to justify discharges under DADT. The article says yes.

  • 369. Kathleen  |  July 9, 2010 at 10:00 am

    I haven't read her answers, just the report of them you point to. And you're right she doesn't answer whether she would need to recuse in Gill.

  • 370. Kathleen  |  July 9, 2010 at 10:03 am

    I personally think the equal protection arguments are stronger than the 10th Amendment justification, though some pundits have argued that the current Supreme Court is likely to be more receptive to the latter.

    I’m reading a lot of doom and gloom out there, but I think that in some ways these challenges to DOMA stand a better chance with the Supremes than Perry does, especially if Perry turns out to be a sweeping decision that could guarantee full marriage equality across the country. While Perry could ultimately mean no state can refuse marriage to ss couples, the DOMA cases just say ‘leave the states alone to choose ss marriage if they want to’ and wouldn’t require any state to perform ss marriages.

  • 371. Straight Ally #3008  |  July 9, 2010 at 10:03 am

    Dream Deferred

    What happens to a dream deferred?
    Does it dry up
    Like a raisin in the sun?
    Or fester like a sore–
    And then run?
    Does it stink like rotten meat?
    Or crust and sugar over–
    like a syrupy sweet?
    Maybe it just sags
    like a heavy load.
    Or does it explode?

    -Langston Hughes

  • 372. Straight Grandmother  |  July 9, 2010 at 10:11 am

    I am thinking this court decsion says,
    “The Federal Government must recognize any Marriage a State Recognizes” Throw out the Federal Law.
    also
    “Oh by the way States, when you are dreaming up Marriage Laws you can’t Discriminate against GLBT because they have Federal Constituitional Protections under the 14th Amendment, Equal Protection” Preserve indiviual Constituitional Rights.

    Two different animals a Federal Law, DOMA and the Federal Constituition.

  • 373. Straight Grandmother  |  July 9, 2010 at 10:16 am

    All In Kathleen, I am all in. If we don’t get it at the Suprrems, I am no worse off then I am now. I don’t care about the gloom and doom, I am tired of wating. Equal Protection is Equal Protection and i think we will win. If we dont’ win, I still am not the granmother to my grandchildren, no different than I am now.

  • 374. Kevin  |  July 9, 2010 at 10:38 am

    Actually, only one or two of these points to a flaw in Tauro’s legal logic. Almost everything Sullivan collects here are legalistic reactions to the social or cultural ramifications of the ruling.

  • 375. Richard A. Walter (soon to be Walter-Jernigan)  |  July 9, 2010 at 10:41 am

    Actually, I don’t think this push will be all that little. Especially when you combine this with the other lawsuits that are in the pipeline against DADT. All in all, I honestly think that the tide is finally beginning to turn in favor of truth, justice, and equality for all.

  • 376. Kathleen  |  July 9, 2010 at 10:45 am

    First, I’m not sure how the sodomy prohibition in the UCMJ stands after Lawrence. AFAIK, no one has been brought up on charges of sodomy per se post Lawrence. I think the military has just been dealing with any possible violations by discharging the service member under DADT. That may be why the statute stands – no one has challenged it.

    The ways I see these DOMA cases affecting DADT are two-fold. One is if DOMA falls before DADT is repealed, it would just remove one of the objections people could have to repealing DADT. As you point out, the problem of how to deal with service members’ ss spouses and partners will certainly become a component in the ‘study’ of DADT repeal.

    The second impact is just in a more general way in that it is yet another federal case that says there is no rational basis for discrimination against g&ls. However, the military is going to come up with a whole slew of alleged ‘legitimate’ state interests that are unique to the military that haven’t been put forth in the other civil rights issues.

    Maybe others will think of additional ways these cases could influence challenges to DADT and If I think of any, I’ll add.

  • 377. steve  |  July 9, 2010 at 10:51 am

    Didn’t MA change the law about not permitting out of state residents to marry in MA if their home state wouldn’t recognize the marriage?

    When ss marriage was first legal in MA, Mitt Romney started applying a now-repealed old statute to prevent out-of-state ss couples from marrying in MA. This old statute was enacted to address interracial marriage (pre Loving vs. Virginia).

  • 378. MichGuy  |  July 9, 2010 at 12:18 pm

    IN REPLY TO THIS:
    ———( It is saying that when the feds decide certain benefits are available to married couples strictly because they are married, the federal gov’t must defer to the particular state’s definition of marriage in deciding who is married. ) ———

    I have a littile idea. Consider If a SS Married couple lives and gets married in a state that recognizes SS marriage. And then when that SS married couple turnd 70 years old and decided to retire and collect Social Security Benifits based off of the other SS Couple Spouse's contributions, and then both SS Couples move to another Country that does not recognize SS marriage in this example I believe that the US government would still pay the SS couple their Social Security Benifits even tho the Country they live in does not allow SS marriage.

    I think the same will happen to SS married couples that move to stated tha dont allow or recognize SS marriage.

    I think that the Fed Government will align its polices to assure that all SS married couples Federal Benifits are determined by assuring that their marriage is valid in the state that theu got married in and not by their state of residence.

    After DOMA section 3 is abolished then the only restrictions that are left are simple Agency policies and regulations which can all be changed with the stroke of a pen by the head of the Federal Agency in concern. We would not need any laws changed to do that.

  • 379. MichGuy  |  July 9, 2010 at 12:26 pm

    Also I was told by a Federal Tax Lawyer that people sue the IRS (FED Government) in Federal Court all the time and when the people win their case the Federal Government does not limit the affect of that case to just be limited to the courts jurrisdiction, But instead the Federal Government usually applies the decision of that case nationwide and changes all of their TAX regulations to conform to that individual case that the government lost.

    If the government can lose a case in Federal Court in regards to TAX LAW and still apply the decision nationwide, then I can assume that the Government can apply this DOMA case decision nationwide without having to have the higher court intervene. I assume the Federal Government can simply on its own decide to stop enforcing section 3 of DOMA and cite this case as its justification from my review of this case although the Government would be doing so on its own.

  • 380. Kathleen  |  July 9, 2010 at 12:35 pm

    in this particular scenario you propose:
    A SS Married couple lives and gets married in a state that recognizes SS marriage. And then the SS married couple moves to a state that doesn't allow or recognize marriage…

    You suggest:
    the Fed Government will align its policies to assure all SS married couples' federal benefits are redetermined by assuring that their marriage is valid in the state that they got married in and not by their state of residence.

    In order for the federal government to do that it would have to overturn the ruling in this case. This is exactly the opposite of what this case stands for. This case says the federal government must defer to the states for the definition of marriage.

    I don't know if the case necessarily reaches the question of what happens to a ss married couple who moves to another country that doesn't define them as married. I think that case goes beyond the scope of this ruling.

    As to Section 3 of DOMA being struck down, doing so will NOT assure marriage across state lines. The states will still assert their rights to define marriage and it would be up to someone to challenge the constitutionality of a state refusing to recognize a marriage which had been valid in a different state. These cases did not touch this issue.

  • 381. Kathleen  |  July 9, 2010 at 12:57 pm

    Federal Tax Court is a separate court system (though a person can in some circumstances choose the conventional federal system) which has its own rules of jurisdiction and precedent. I know almost nothing about that.

    Wrt to DOMA, think about the checks and balances built into our governmental structure. Congress passed this law. It expects the Dept of Justice (as part of the Executive Branch) to defend and enforce the laws it passes. There are even rules in place mandating certain types of enforcement.

    If the Executive Branch of government just obstinately decided not to enforce a law it didn't like, without statutory authority to do so, think of the crisis in our form of government that could create. Is that even something you would ever advocate if this was a law you agreed with?

    I don't know if you caught the Q & A I posted earlier, where I asked someone at LAMBDA Legal (a former law professor of mine) whether the feds would be required to appeal this…. You'll have to search back for his exact answer but it was basically that they most likely would appeal and if they didn't, the Court would likely allow members of Congress to step in as defendants, if they chose to do so.

    I assure you, the answer about this having precedent only in Mass for the moment, and ultimately (even if upheld by The Supremes) still only being limited to the scope of the ruling itself — is accurate. If you want to ask an attorney, best to ask someone who does civil litigation in the regular federal court system, rather than someone who specializes in Tax or Bankruptcy law.

  • 382. Straight Dave  |  July 9, 2010 at 1:24 pm

    It's incredibly rare that I disagree with you, Kathleen, but this time I must, regarding:

    In order for the federal government to do that it would have to overturn the ruling in this case. This is exactly the opposite of what this case stands for. This case says the federal government must defer to the states for the definition of marriage.

    IMO the state's definition of marriage only applies at the point of getting married. The state lets you do that or it doesn't. Once you have that piece of paper, you are married and you stay married. At that point, the state's involvement is over. You go on your merry way and act fully married. That's the only action the Feds must defer to.

    When the Feds come to check whether you are married all you have to do is waive that piece of paper legally granted by a state that shows you are married. It doesn't suddenly burst into flames if you cross a state line. The Feds won't/can't/shouldn't ask your current "disagreeable" state whether they are happy about the fact you are married. It's none of that state's business what your relationship is to the federal govt. The state whose actions the Feds honor and recognize is the state you got married in, because it was their decision to authorize it and it is precisely *that decision* that the Feds are ordered to recognize. They won't go ask the other 49 states their opinion about whether you "should have" gotten married in the first place. They only care that you *did* get legally married, somewhere.

    It makes no sense for you to get legally married, then move around to 5 different states while remaining legally married, and have the Feds change their treatment of you 5 different times. They treated you as married on day 1 and you did nothing to become legally unmarried afterward. The fact that some states are closing their eyes about it is completely irrelevant to the Feds actions.

    IANAL, but it doesn't keep me from having opinions.

  • 383. Straight Dave  |  July 9, 2010 at 1:36 pm

    To follow your logic, Kathleen, the following would have to make sense. You get married in MA, then move to Nebraska. Your marriage is no longer valid. Then you hop across the border to get married to somebody else in Iowa, without committing adultery.

    Again, once you get legally married, you stay married, no matter where you live. Nebraska might refuse to give you any recognition, but that's separate from the Fed's recognition.

    I'll now return to being friendly and agreeable with you :)

  • 384. Richard A. Walter (s  |  July 9, 2010 at 1:39 pm

    And Straight Dave, you have just given me more reason to gather all those North Carolina couples who got married in other states so that we can sue here to strike down section 2 of DOMA.

  • 385. Lesbians Love Boies  |  July 9, 2010 at 1:44 pm

    I am still willing to donate to the fund. It really doesn't look like my state will be getting same sex marriage rights any time soon. More likely we will be State number 48 to get it..right behind texas and utah.

  • 386. Lesbians Love Boies  |  July 9, 2010 at 1:45 pm

    um, I can't count either!

  • 387. Prop 8 Trial Tracker&hellip  |  July 9, 2010 at 1:54 pm

    [...] yesterday. But it happened, and you have, at least in part, Martha Coakley to thank for it. But, this decision is real, and powerful: In the wake of DOMA, it is only sexual orientation that differentiates a married [...]

  • 388. Kathleen  |  July 9, 2010 at 2:32 pm

    First, I hope it's obvious to everyone here that I have no problem with someone disagreeing with me.

    You bring up a couple of separate issues, so let me try to take them separately.

    FIRST, does this ruling stand for the proposition that once the federal government has determined a couple to be married, that the couple stays married if the only change in its status has been that they moved into a different jurisdiction?

    I will say that your analysis has made me think through this a bit more, but only to the point of saying that I'll try to get clarification. On its face, this ruling stands for the proposition that the feds must defer to the states for its definition of marriage.

    I can see that federal law might control in the case where one has become vested in a benefit. For example, if the federal government has determined that you have the right to a deceased spouse's social security retirement benefits, I can see that the feds wouldn't, and probably couldn't, divest you of that right unless if was for the reasons they would do it to any other survivor (e.g., gets remarried).

    However, when you consider getting any NEW federal benefits, after making the move, I can see how the feds might look at your current situation at the time of application to decide if you're married. I could also see an argument that if you tried to continue benefits that are intricately entangled with the those offered by the states, it gets difficult.

    Take Medicaid, for example. I think that the funding for that comes from both the state and federal government and the each state administers the program on behalf of the feds. (could be wrong on that). But assuming it's true, if you were getting Medicaid in your previous state, then move to a state where you're not married and reapply for Medicaid in that state, I can see the state arguing that the federal government can't force it to pay benefits that are reserved for married people when they don't consider you married.

    ALL of this would be easier to analyze if we knew for sure if there are ANY other situations under current law where a state won't honor a marriage considered valid in another jurisdiction EXCEPT the case of SS couples.

    The example of common law marriages has been suggested. I'm not entirely sure that even those can't be carried into another state, once they're legally established in the state that allows them. IF it's true that common law marriages don't carry into some jurisdictions, then we should be able to look to how the feds deal with this situation to answer these question.

    Here's the thing, I don't think there is any other situation in the current law besides this, and for exactly this reason! It makes for an insane situation for all parties involved. This is precisely why the 'full faith and credit' clause is in there — to avoid losing rights, making contracts unenforceable, 'unmarrying' people who are married!

    SECOND, the point I made about the the situation described above being completely contrary to this ruling. My reasoning is this — this case says the federal government doesn't have the authority to determine what marriage is, even when it comes to the determination of marriage for the purpose of receiving federal benefits. That's what DOMA did – it imposed a rule about marriage on states. I don't see how the federal government could impose through statute (or regulations) a rule about who they'll consider married which conflicts with the state's definition without running up against this very ruling. Maybe you see a way it can. I'm open to arguments. (of course the feds can say a state's definition is unconstitutional and strike down the offending part of the law on that basis, but that's not what I'm talking about)

    Did I cover everything? …hmmm will have to check in the am. Tired.

  • 389. Richard A. Walter (s  |  July 9, 2010 at 2:46 pm

    Kathleen, this post is yet another piece of evidence showing exactly why you are such a valued member of the P8TT family to us. Just look at how thoroughly you explain all of this legalese to us in a way that we can understand, and how diligently you research things to make sure you are giving us the appropriate information and not leading us astray. I am truly looking forward to the day we meet face to face so I can say this in person. And thank you once again for being a part of this family on this site.

  • 390. Sheryl Carver  |  July 9, 2010 at 4:24 pm

    Thanks, Straight Grandmother. You brightened my day.

    (Along with the DOMA rulingg & the requirement by Judge Phillips that the gov't must submit evidence as to WHY it is enforcing DADT.)

    A good ending to a tough week.

  • 391. Top Posts — WordPre&hellip  |  July 9, 2010 at 5:07 pm

    [...] US Federal Judge In Massachusetts Rules Part of DOMA Is Unconstitutional by Robert Cruickshank UPDATE: Here’s the PDF of the ruling, via GLAD. Original post begins here: As we await the [...] [...]

  • 392. Straight Dave  |  July 9, 2010 at 11:21 pm

    Kathleen, thank you for taking this analysis a step further. I anxiously await clarification from your legal contacts. It is indeed very messy. I have another example that shows the insanity of trying to maintain any shred of DOMA.

    Suppose 2 women get married in MA. Then they move to Texas. Eventually one of them gets tired of it and decides to marry a man, in TX. (Don't say this hasn't happened, or is far fetched.) TX considers this perfectly legal since they didn't recognize the first marriage. The other woman feels she is still married and has documentation to prove it. How do you deal with children, joint property, joint Fed tax returns, adultery claims, etc.

    One woman will justifiably file a joint Fed tax return with her still-legitimate "wife", who in turn will file a joint Fed tax return with new husband. All perfectly in conformance with the rules of the situation we now find ourselves in. The IRS will go nuts.

    This is one of many reasons DOMA(2) will soon fall, possibly dragged down by the current DOMA(3) ruling. Those 2 parts are closely tied together. We can't stay in this situation for long. Something else has to give in order to restore legal consistency and sanity.

  • 393. Straight Dave  |  July 9, 2010 at 11:39 pm

    One point I left out. In my example above. With respect to states rights, the Federal gov't is left in the position of having to simultaneously:
    1) honor MA recognition of a marriage, and
    2) honor TX disregard for the same marriage.

    How the hell can it manage to pull that off?

    DOMA will soon be gone, all of it, and the full faith and credit clause restored to its proper place.

  • 394. Ķĭŗîļĺę&  |  July 9, 2010 at 11:48 pm

    @Dave
    The Constitution of the Unites States is the highest-level law of the land, and if some state's definition of marriage (that they included into their own state-level Constitution that is lower than the US Constitution) is presumed unconstitutional (violating the US Constitution) for discriminating against a class of people for no good reason and no legitimate purpose but sheer animus, then it trumps the state's right to define a marriage like that.  At least, it should be.

  • 395. Kathleen  |  July 10, 2010 at 4:59 am

    @Straight Dave,

    Remember these cases? This illustrates just the kind of insanity you describe. http://www.dailymail.co.uk/news/worldnews/article

    In several states in the union, they're married, but not in the state of TX, so they can't get divorced. I think in one couple's case, they had even been given a divorce by a lower court, but then the state 'undivorced' them. .. and the injustice continues.

  • 396. Franck  |  July 10, 2010 at 7:40 am

    thanks, Straight Grandmother.

    An update on that… It seems my coworker is now pretty much convinced that there is nothing inherently wrong in same-sex marriage. It seems his only experiences with gay people before had been pretty bad, mostly from the libidinous kind… My "coming out" to him has been an utter surprise to him, it seems. Now the only thing he has reservations when it comes to same-sex couples, is parenthood. We debated some on it, and he's still only just barely convinced.

    I count myself as lucky. Living in an African, mostly Christian and traditionally very conservative had always made me worried of revealing my homosexuality to anyone. As it turns out, I did let a lot of people know, after all. My parents, brother, would-be girlfriend (yes, I had one), some friends, several former classmates and several coworkers along the years… And this is where I count myself as lucky: I might have lost contact with some of those people because of the issue, but I have never experienced the brutal rejection I always feared. If anything, those people who knew had now become more careful about mindlessly spouting homophobic remarks within earshot of me, and some literally banned homophobic terms from their vocabulary.

    I won't say it was easy, though. I had to do a lot of convincing: no, it isn't a phase. No, I'm not gay because of a lack of success with girls. No, I will not marry a woman to "save appearances."

    If anything, there are two facts that makes me smile now: ever since people have learned that I was gay, I also acquired a reputation for being a fierce debater. So far, the only one I never managed to get to, is a guy on a local forum who's known to be a troublemaker. I'm currently crazy enough to have engaged in a debate against him, and let me tell you: that guy would actually be a proud addition to NOM.

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1114 days, as of today.

  • 397. Richard A. Walter (s  |  July 10, 2010 at 9:57 am

    And as far as I am concerned, Franck, that is three years too damned long. You and your fiance should NEVER have been forced to be apart simply because some group of brainless theocrats want to impose their view of religion on everyone else. And I was recently reminded of how these people are coming up with their claim that so many of our founding fathers were ministers. It is because at one point in history, what we now call colleges and universities were called seminaries, from the root word that relates to spreading or implanting. They are applying the modern day understanding of seminary, which is normally a place where you study for the degrees necessary to qualify you to preach, to that period, and in that way are perverting the truth about our history. And guess what "institution of higher learning" is helping them to do that? Beck University, founded by Glenn Beck.

  • 398. Felyx  |  July 10, 2010 at 10:31 am

    Kirill has corrected me, I meant to say that SG, you now have two more 'grandkids' one from the East and one from the West. We love you! Mui lubim tebya! F&K

  • 399. Ķĭŗîļĺę&  |  July 10, 2010 at 11:17 am

    @Kathleen
    If we're lucky, the court will not destroy the footage and some day it will be available for everyone to see!

  • 400. Felyx  |  July 10, 2010 at 11:34 am

    What an impressive subject for a post! This subject has garnered enough comments to reach the 400 mark on a single post! (This might even be the 400th comment at the time of its posting.)

    It is a testament to how exciting this is and how far we have come. I look forward to the comments regarding the Prop 8 decision.

    Congratulations everyone! We have worked hard and I believe our time is arrived!

    With great love to all the Rainbow People!
    Yours truly,

    F & K – The Unambiguously Gay Duo!

  • 401. Felyx  |  July 11, 2010 at 3:28 am

    The real shame is that the video got suppressed when it did. It truly would have made a huge social impact! The beauty is that we overcame adversity and found even more equally powerful ways to spread the word. But the book is not closed on this one…one day the videos will come out. And these kind of things have a way of turning against their instigators…what the religiously institutionalized wanted to suppress might just come back to bite them in the ass at a most inconvenient time!

    Viva Gay!

  • 402. The NOM tour: A celebrati&hellip  |  July 21, 2010 at 5:28 pm

    [...] Constitution—especially the 1st, 5th, 10th, and 14th Amendments—at issue on this tour, with DOMA, and the institutionalized limits on the rights of millions of Americans in more than 30 [...]

  • 403. BREAKING (NEW VIDEO): NOM&hellip  |  July 22, 2010 at 9:33 am

    [...] Constitution—especially the 1st, 5th, 10th, and 14th Amendments—at issue on this tour, with DOMA, and the institutionalized limits on the rights of millions of Americans in more than 30 [...]

  • 404. White House Co-Opts Dan S&hellip  |  October 12, 2010 at 2:30 pm

    [...] of our duplicitous president, today was the last day his Department of Justice had to appeal Judge Joseph Tauro’s rulings (in two separate cases) striking Section 3 of DOMA, which would have granted federal recognition of [...]

  • 405. Adam Bink: What To Expect&hellip  |  April 3, 2012 at 11:51 am

    [...] v. Health and Human Services. It has been almost two years since District Court Judge Joseph Tauro ruled that Section 3 of the Defense of Marriage Act is unconstitutional under both the Fifth and Tenth [...]

  • 406. Prop 8 Trial Tracker &raq&hellip  |  April 3, 2012 at 12:01 pm

    [...] Health and Human Services.  It has been almost two years since District Court Judge Joseph Tauro ruled that Section 3 of the Defense of Marriage Act is unconstitutional under both the Fifth and Tenth [...]

  • 407. Federal Ruling that Secti&hellip  |  January 2, 2013 at 12:51 pm

    [...] (via Prop 8 Trial Tracker) Share this: 30 Jul 2010 Leave a reply [...]

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