Judge Joseph Tauro's ruling for same-sex marriage.

The law, lawyers, and the court.
July 9 2010 11:41 AM

Gay Marriage, the Old-School Way

Judge Joseph Tauro's courageous ruling in favor of same-sex marriage.


While the constitutional challenge to California's ban of gay marriage grabbed all the headlines this year, a pair of deliberately narrower cases has been quietly proceeding in Massachusetts federal court. Couples married under Massachusetts' same-sex marriage law, and Attorney General Martha Coakley, challenged the federal Defense of Marriage Act. They argued that in Massachusetts, DoMA's prohibition against extending to gay couples federal benefits—like filing a joint income-tax return or claiming spousal Social Security benefits–is unconstitutional. By starting in Massachusetts, the lawyers avoided a direct challenge to other states' prohibitions on same-sex marriage. They simply asked the federal government to treat the state's gay married couples the same way the feds treat everyone else.

On Thursday, in a sweeping opinion in this deliberately narrow case, Judge Joseph Tauro of the United States District Court for the District of Massachusetts struck down a key part of DoMA. In his opinion in the main case, Gill v. Office of Personnel Management, Tauro rejected every possible reason to retain the law. (In the companion case brought by Coakley, he also found that Congress had overstepped the boundary between the federal government and the states, adding a sweet states' rights gloss to the generally liberal decision.) Tauro didn't buy the rationale that apparently sounded reasonable to Congress when it passed DoMA in 1996, the lukewarm defense the Obama administration came up with, or any other reason the court could conceivably imagine.


"The Constitution 'neither knows nor tolerates classes among citizens,' " Tauro opened, a pointed citation of Justice Harlan's dissent in Plessy v. Ferguson, the universally discredited 1896 Supreme Court ruling that upheld segregation. He then decimated the Obama Justice Department's rationale for DoMA as a legitimate effort to preserve the existing social order to buy time for society to digest the controversial idea of same-sex marriage. The anti-miscegenation laws that spread among the states before the Supreme Court struck them down in 1967, he said, did not cause Congress the concern for social order it invoked in defense of DoMA. Nor did the existing marriage law of Massachusetts' neighbor, New Hampshire, which alone among the states allows a 14-year-old to marry a 13-year-old. Tauro concluded that DoMA was driven only by animus against gay people. And animus alone is not a legitimate basis for the government to act. "If the Constitution means anything, it does at the very least mean that the Constitution will not abide a bare congressional desire to harm a politically unpopular group," Tauro wrote.

When it passed DoMA, Congress said that it was protecting heterosexual marriage and encouraging responsible heterosexual procreation. Judge Tauro said these justifications were so attenuated as to be irrational. In American law, he noted, procreation has never been either necessary or sufficient for legal marriage. And anyway, Judge Tauro found, legions of experts in every social science have concluded that "children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents." Certainly, making life worse for the children of same-sex couples does nothing to improve the lives of the rest. Judge Tauro also made short shrift of the argument, heavily featured in defense of Proposition 8 in the California case, that it is necessary to exclude same-sex couples from marriage in order to motivate marriage-averse heterosexuals to tie the knot.

The group that brought Gill to court, the Gay and Lesbian Advocates and Defenders, carefully tried to frame the case so that it could nibble away at some of the worst aspects of legal hostility to same-sex marriage. But they got a decision with the broadest of implications. The decision in Gill doesn't just ensure that lawfully married same-sex couples will pay the same federal taxes as straight marrieds and get the same benefits. The opinion also rejects every argument for state laws that forbid same-sex marriage altogether.

Tauro's rejection of the Justice Department's we're-scared-of social-change argument also matters because that inchoate fear is the only argument left, now that all the substantive claims of harm to children have evaporated under the light of serious scientific research. The argument that the federal courts should let the country duke it out, which was central to the defense of Prop 8 in California, has also emerged as newly fashionable among the liberal commentariat. Instead of staying his hand, Judge Tauro, appointed 40 years ago to the bench by President Richard Nixon, reminded the country that while there was a lot of controversy over interracial marriage back in the day, the federal government did not withdraw its benefits from interracial couples just because someone in Alabama didn't like the idea of their unions.

If Tauro's ruling is appealed on up to the Supreme Court, it may fall, because the justices will understand that for all their careful narrowing, the plaintiffs are really asking for a big step toward a national right to same-sex marriage. But in the meantime, gay rights supporters can celebrate a show of courage by a 79-year-old, Republican-appointed, honors-laden federal judge.

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Linda Hirshman is the author of the (entirely appropriately named)  Victory: The Triumphant Gay Revolution, coming June 5. www.gayvictorybook.com.



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