Thursday, July 8, 2010

Judge Tauro Strikes Down Key Provision of DOMA

Though I will say it again, I am not a fan of the queer marriage movement, but I am a fan of justice.


In a two separate rulings today (Commonwealth of Massachusetts vrs. DHHS and Department of Veteran Affairsand Gill vrs. United States), Judge Joseph Tauro of the First Circuit Federal Court based in Boston struck down section three of the Defense of Marriage Act (DOMA).

Here is an article from the Bay Windows that has more details.

For those of you that haven't read the Defense of Marriage Act recently, section three is that oldy but goody that reads:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.

Thank you President Clinton and former Speaker of the House of Representatives Newt Gingrich (R-GA) for that piece of bullshit.

Not only does Judge Tauro smack down the Defense of Marriage act but he gives a round house kick to the face of those homophobic and heterosexist members of Congress that passed the bill when he concluded in Gill-v-US that:

...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. In the wake of DOMA, it is only sexual orientation that differentiates a married couple
entitled to federal marriage-based benefits from one not so entitled.And this court can conceive
of no way in which such a difference might be relevant to the provision of the benefits at issue.
By premising eligibility for these benefits on marital status in the first instance, the federal
government signals to this court that the relevant distinction to be drawn is between married
individuals and unmarried individuals.To further divide the class of married individuals into those
with spouses of the same sex and those with spouses of the opposite sex is to create a distinction
without meaning.And where, as here, “there is no reason to believe that the disadvantaged class
is different, irrelevant respects” from a similarly situated class, this court may conclude that it is
only irrational prejudice that motivates the challenged classification. As irrational prejudice
plainly never constitutes a legitimate government interest, this court must hold that Section 3 of
DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth
Amendment to the United States Constitution

Let me translate that for you...Judge Tauro said clearly that Congress does NOT have the right to express its moral disapproval of a community through prejudicial legislation when there is no clear and compelling reason to do so. Further, there is NO justifiable argument by the government to maintain a separate class of marriage for a single group of people, queers, just as there was not a justification based on race, which was why in 1967 the Supreme Court told racist motherfuckers to go straight to hell and in Loving-v-Virginia invalidated all miscegenation and interracial marriage prohibition laws in the country.

I love Judge Tauro for two words in particular: IRRATIONAL PREJUDICE.

Further, and I must admit here that in the olden days I would have been a staunch federalist, I have never been happier to have a judge uphold states rights. In his ruling in the Commonwealth of Massachusetts-v-DHHS and Department of Veteran Affairs, the good judge concludes:

That the government views same-sex marriage as a contentious social issue cannot justify
its intrusion on the “core of sovereignty retained by the States,”157 because “the Constitution ... divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day. 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.

Fuck the Tenth Amendment, the Defense of Marriage Act offends me.

Let me extract the salient points from this judgment. 1) If the federal government is controlled by bigots, bigots do not have the right to reach down into the states and implement their idiocy at the state level, 2) The Constitution has this little thing called checks and balances specifically to prevent the fanatic masses from imposing draconian laws based on hysteria and feelings of the moment, and 3) The federal government can't act like a spoiled eight year old and threaten to pick up its toys and go home if states don't play by the rules of discrimination as determined by some idiot from Georgia and a jackass from Mississippi (Trent Lott that last part was aimed directly at your racist ass).

It is a rare occasion when the system of checks and balances envisioned by Thomas Jefferson and the other framers of the Constitution actually do what they were intended to do. From the gate, our system of governance (among many other things not so pleasant) was built to ensure the rule of the majority while PROTECTING the rights of the minority. And, consistently, with few exceptions it has been the judiciary that has, in the end, stepped in to truly ensure that people of color, women, queer folks, indigenous peoples, peoples with disabilities, and non-Christians receive the rights, privileges, protections and liberty they deserve.

Of course, the court sometimes fails big time (shall we all have a moment of silence for the Citizens United ruling....thanks), and more often than not its the Circuit Courts that are at the vanguard of rights protection, as we all know that politics play a bigger than they should role in that 5-4 mess we call the U.S. Supreme Court.

This is a brief victory for justice, Most likely the case will be appealed. If so, the U.S. Court of Appeals will most likely issue a stay to prevent implementation of this ruling in the First Circuit--and it is important to note that this ruling ONLY affects the First Circuit--but the courts love precedent, and this ruling sets a precedent that builds on the precedent of Loving-v-Virginia, and I hope will lay the groundwork for marriage equality...even if I maintain that our communities resources would be much better spent in other ways.

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