Sunday, July 11, 2010

Gay Marriage, the Old-School Way

by Linda Hirshman

July 9, 2010

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.