Searching for Common Sense
By Bruce Christian

Isn’t it Ironic?
Judge rules for states’ rights in declaring DOMA is flawed

Often the journey to get where you want to go doesn’t go the way you thought it might. But who can complain, as long as you get there.

Since the Defense of Marriage Act became federal law in 1996 defining marriage as between a man and a woman, LGBT advocates have questioned its constitutionality. Most of the questions focused on Article IV, Section 1 of the U.S. Constitution, known as “The Privileges and Immunities Clause” or “Comity Clause.”

The clause simply says: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” It has been interpreted to mean that all the states will honor the civil contracts — such as marriage, divorce, adoption, business agreements, etc. — that occur in any other state.

However, the July 8 ruling by U.S. District Court Judge Joseph Tauro declares DOMA unconstitutional for a completely different reason, and one that makes the entire gay marriage debate even more interesting, even though his decision only applies to gay marriage in Massachusetts, which legalized the institution in 2004.

Even before DOMA became the law of the land, many anti-gay activists pushed for a Constitutional amendment to prohibit gay marriage. When that failed, they took their campaigns to individual states, and one by one have been getting the states to act individually.

To this day, they argue vociferously that marriage should be a state’s rights issue, guaranteed by the 10th Amendment. Tauro’s reason for rejecting DOMA is that it violates states’ rights.

He ruled: “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the 10th Amendment. For that reason, the statute is invalid.”

What a delicious irony! The very argument anti-gay marriage advocates use is what the judge recognized about DOMA. Yet, once the ruling was announced, those opposed to gay marriage immediately labeled Tauro an “activist judge,” even though he was recognizing the very argument they make in support of going state by state to ban gay marriage.

Appeals are certain — even the U.S. Department of Justice may have to appeal in favor of DOMA (because it is the law). U.S. Attorney General Eric Holder already is on record as being critical of DOMA for violating civil rights of same-sex couples, but in his role, he also has defended the measure as the prevailing law of the land, which he must do until Congress repeals it.

The government has 60 days to appeal the ruling.

The judge’s ruling, however, didn’t stop at the 10th Amendment. Tauro wrote: “as irrational prejudice plainly never constitutes a legitimate government interest,” the Defense of Marriage Act (DOMA) violates the protection under the Fifth Amendment to the Constitution.”

The Fifth Amendment guarantees that the government cannot deprive citizens of “life, liberty, or property, without due process of law.”

He explained that with DOMA it was “only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled.”

Because of Tauro’s ruling, the gay marriage issue now has at least four constitutional questions that need to be sorted out by the U.S. Supreme Court. They are the application of:

1. The Comity Clause
2. Guarantee of life, liberty or property (Fifth Amendment)
3. State’s Rights (10th Amendment)
4. Equal Protection under the Law (14th Amendment)

The U.S. Supreme Court cannot ignore the muddled constitutional mess the issue has wrought, which means we likely will see Supreme Court action sooner rather than later.

Tauro’s ruling also comes at a time when the nation continues to await a California ruling on the Equal Protection aspect, which an openly gay federal judge has been considering since last spring. That decision could drop at any time.