The Gay Marriage Ruling: What Now?

CBS/AP

Yesterday, a federal district judge in Boston declared that the federal ban on recognizing same-sex marriage - as articulated in the 1996 Defense of Marriage Act, or DOMA - is unconstitutional.

The judge, Joseph Tauro, based his decision on the notion that states, not the federal government, have jurisdiction over the definition of marriage. If his decision holds up through appeals - and that's a big if - it would mean that the federal government would likely have to recognize those same-sex marriages already recognized by states, and thus provide benefits like Medicaid to same-sex partners.

To be clear: The decision would not mean that both federal and state governments would have to recognize same-sex marriage nationwide. Instead, it would mandate that the federal government would have to recognize same-sex marriages already recognized by Massachusetts and other states that recognize gay marriage. (The case actually dealt with a specific group of people looking for specific benefits, but the broader implication is that the relevant section of DOMA would fall.)

The case now could move from the district court to the U.S. court of appeals for the first circuit, which includes three other New England states; it could then go to the Supreme Court. Ironically, an appeal to the decision would come from the Justice Department of the Obama administration, which wants to repeal DOMA but must defend it so long as it remains law.

This is not the only high-profile same-sex marriage case now before the courts: in California, both sides are now awaiting a decision in a major lawsuit to overturn the Proposition 8 same-sex marriage ban. That case (Perry v. Schwarzenegger) is predicated on the argument that the state's voter-backed ban of same-sex marriage violates the Constitution's due process and equal protection provisions.

If the plaintiffs are successful and the decision is sufficiently broad, that case would go further than the Massachusetts decision - it would essentially bring down both state and federal limits on same-sex marriage (and effectively make America a nation where all gay couples could get married). Like the Massachusetts decision, there is a decent chance that the California case will end up before the Supreme Court.

Robert George, a professor of jurisprudence at Princeton University as well as the chairman of the National Organization for Marriage, which works against same-sex marriage efforts, said in an interview with Hotsheet that he believes the Massachusetts decision was wrong. He cites examples in which the federal government recognizes marriage for various purposes, such as the filing of tax returns.

"I believe that the federal government does have the power to define marriage for purposes of federal law," he said - even if it doesn't have the power to define it for the purposes of state law.

George, founder of the American Principles Project, also suggests that the arguments in the two gay marriage cases essentially contradict each other. That's because, he argues, while the Massachusetts case is predicated on states' rights over federal rights, the California case is predicated on the reverse.

"It seems to, if you take the logic of the [Massachusetts] opinion, lead to the proposition that the Supreme Court or the federal judiciary would not have the power to, for example, overturn Proposition 8 in California, because that would constitute the federal government intervening on behalf of the state to define marriage," he said.

"So while there is lots of applauding of this decision by the advocates of same-sex marriage, the logic seems to undermine their position," he added.

But Jennifer Pizer, marriage project director of gay rights group Lambda Legal, says George has it wrong.

"Equal protection rules [in the Constitution] apply to both states and the federal government," she said in an interview. "The Boston litigation addresses Congress mistreating a group and Congress interfering with a state. The federal government statute has both of those problems. And Prop. 8 is about a state violating the rights of a group - one of those problems."

She added: "The basic idea here is that all government in the United States is required by the Constitution to treat people equally. And anti-gay marriage rules are not equal treatment. So if a state violates that principle, the state violates the Constitution. And if Congress violates that principle, Congress violates the Constitution."

"The decisions yesterday in the Boston cases reinforce the arguments made in the Prop. 8 litigation because defenders of these anti-gay rules in California and in the Boston litigation relied on some similar arguments," argued Pizer. "And so the conclusions in the Boston cases explain why those anti-gay arguments fail to justify marriage discrimination."

There is no clear timeline for when all this will be resolved - the Supreme Court has discretion over whether and when to take up either same-sex marriage case, and both cases could go away if Proposition 8 or DOMA are overturned by voters or Congress. One thing we do know: If the cases do reach the high court, they will likely yield landmark rulings that won't be forgotten anytime soon.

[black_howler]

The American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers state:

"There is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage."

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/Amer_Psychological_Assn_Amicus_Curiae_Brief.pdf

Thus, mental health professionals and researchers have long recognized that being homosexual poses no inherent obstacle to leading a happy, healthy, and productive life, and that the vast majority of gay and lesbian people function well in the full array of social institutions and interpersonal relationships.

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/Amer_Psychological_Assn_Amicus_Curiae_Brief.pdf

The research and clinical literature demonstrate that same-sex sexual and romantic attractions, feelings, and behaviors are normal and positive variations of human sexuality.

http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf

The longstanding consensus of the behavioral and social sciences and the health and mental health professions is that homosexuality per se is a normal and positive variation of human sexual orientation.

http://www.apa.org/about/governance/council/policy/sexual-orientation.aspx

[black_howler]

This was taken from another poster that shows why we need to legalize gay marriage. If you don't feel for this person after reading it, you simply aren't human.

"I am not sure what our President thinks of this dicission but coming from a poor family and knowing what discrimination is all about I would assume he would not care if "Gays" have equal rights. The whole reason why they are asking for rights to be considered married is from the same reason why I would be for it. My own life partner commited suicide in our home with a gun to his heart. After a 28 year union I was deprived to even go his funeral. We had two plots next to each other. But because we did not have a marriage cirtificate "(Legal Document)" of our union his mother had him cremated and his ashes taken back to Missouri where we came from. That is only one example how painful it is. His suicide tramatized me so much and her disregard for my feelings only added to my heartach. That happened on March 21 of 2007 and I still cannot type this without crying for the trauma I have to endure each day. Oh did I mention I am in an electric wheelchair for life? Yes I am and it is very diffacult to find another mate when you are 58 and in a wheelchair. "

[black_howler]

The National Library of Medicine pubs confirm that sexual orientation is natural, biologically induced in the first trimester of pregnancy, morally neutral, immutable, neither contagious nor learned, bearing no relation to an individuals ability to form deep and lasting relationships, to parent children, to work or to contribute to society.

From the American Psychological Association: homosexuality is normal; homosexual relationships are normal.

The American Academy of Pediatrics, American Psychological Asociation and American Psychiatric Asociation have endorsed civil marriage for same-sex couples because marriage strengthens mental and physical health and longevity of couples, and provides greater legal and financial security for children, parents and seniors.

America's premier child/mental health associations endorse marriage equality.

[black_howler]

For those of you claiming homosexuality is a "lifestyle", that is a false and ignorant statement. Homosexuality is not a choice. Just like you don't choose the color of your skin, you cannot choose whom you are sexually attracted to. If you can, sorry, but you are not heterosexual, you are bi-sexual. Virtually all major psychological and medical experts agree that sexual orientation is NOT a choice. Most gay people will tell you its not a choice. Common sense will tell you its not a choice. While science is relatively new to studying homosexuality, studies tend to indicate that its biological.

http://www-news.uchicago.edu/releases/03/differential-brain-activation.pdf
http://www.newscientist.com/channel/sex/dn14146-gay-brains-structured-like-those-of-the-opposite-sex.html
Gay, Straight Men's Brain Responses Differ
http://www.foxnews.com/story/0,2933,155990,00.html
http://www.livescience.com/health/060224_gay_genes.html
http://www.springerlink.com/content/w27453600k586276/
http://blogs.discovermagazine.com/80beats/2008/06/16/172/

There is overwhelming scientific evidence that homosexuality is not a choice. Sexual orientation is generally a biological trait that is determined pre-natally, although there is no one certain thing that explains all of the cases. "Nurture" may have some effect, but for the most part it is biological.

[black_howler]

To those of you using the Bible as a weapon against homosexuality, you are wrong. Homosexuality is not a sin. The Bible is constantly being taken out of context to support anti-gay views. Scholars who have studied the Bible in context of the times and in relation to other passages have shown those passages (Leviticus, Corinthians, Romans, etc) have nothing to do with homosexuality. These passages often cherry-picked while ignoring the rest of the Bible. The sins theses passages are referring to are idolatry, Greek temple sex worship, prostitution, pederasty with teen boys, and rape, not homosexuality or two loving consenting adults.


http://www.soulfoodministry.org/docs/English/NotASin.htm
http://www.jesus21.com/content/sex/bible_homosexuality_print.html
http://www.christchapel.com/reclaiming.html
http://www.stjohnsmcc.org/new/BibleAbuse/BiblicalReferences.php
http://www.gaychristian101.com/

Thats why Jesus never mentions it as well. There is nothing immoral, wrong, or sinful about being gay. Jesus, however, clearly states he HATES hypocrisy. If you preach goodness, then promote hate and twist the words of the Bible, you are a hypocrite, and will be judged and sent to hell. Homosexuals will not go to hell, hypocrites will.

This is very similar to the religious bigots of the past, where they took Bible passages to condone slavery, keep women down, and used Bible passages to claim blacks as curses who should be enslaved by the white man. People used God to claim that blacks marrying whites was unnatural, and not of God's will.

[mikhastur]

NOM's legal "expert" apparently either did not read Judge Tauro's opinion in MA v. HHS. Either that or he didn't fully understand it. Yes, the federal government attaches certain things to marriage [like tax filing status], but for what the **definition** of marriage is, it has always always always [up to DOMA] relied on state law to supply that definition. So what was "legally married" in one state [say between first cousins or between 14 year olds] but would not be legally married in other states, was accepted as married by the federal government as long as the couple in question had the requisite marriage certificate from a state government.

[marcoluxe]

You have this exactly right. Prof George is a NOM tool, and his statement is made to support a simplistic sound bite that, for the gullible, has a whiff of credibility, but still no substance. Princeton: this guy is hurting your reputation.

[MurdochSucks]

by MendezJohn July 9, 2010 10:07 PM EDT
"You shall not lie with a male as one lies with a female; it is an abomination." Lev 20:13.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
But homosexuality is not illegal, so why would gay marriage be? Also, by your scripture, it would be acceptable for lesbians to marry, but not gay men. Silliness from the bible.

[jrjrc]

Gay marriage is NOT a majority vs. minority issue, or a religious issue. This is an issue concerning EQUAL RIGHTS, and under the Constitution everyone is entitled to equal rights. If we made laws based on what the majority wanted, the voters would have banned freeing slaves, women the right to vote, interracial marriage, interfaith marriage, etc. etc. etc. Also, as far as religion is concerned, individuals have the right to believe anything you want to believe from a religious standpoint, but remember that everyone DOES NOT agree with your religious beliefs, and in a society that offers religious freedom, the use of the power of the state to enforce private religious sensibilities is an affront to ALL who would claim the right to worship according to the dictates of their own conscience. It seems that a lot of the opposition to Gay Marriage is based on hatred, prejudice, fear, misinformation, and ignorance. The bottom line is that if Straight people are allowed to get married, then gay people should have the SAME right AND benefits.

[lindakingwilliams]

How can something be unconstitutional that isn't even in the constitution?

When a Nation of morally good people, who make up the majority, are against a law that has been established in their country, How can the Government go forth and force that law on the people?

Fools rush in, where angels fear to tread. 50 years ago, one woman, who did not believe in God, opened the door to the Gov. to take control of this Nations spiritual welfare. The people of this Nation did not want this.
There was no Internet then. Most churches throughout the country banned together, through the years,trying to get God back into our schools. They were ignored.

This Country was buit on Freedom, God and Christian values.
We have two new genarations of voting age people now, whom half, have no knowledge of God, or at least, unaware of His power. But Satan is very aware. Men desiring men, as he should desire a woman, is nothing more then a confused spirit. Same concerning a woman with another woman. Closing God out, has left the door open to all kinds of wickedness ( spirits ) to take control of the minds of the Godless souls.

Look around you. Look at what is taking place in your cities. Every day, the News reports about what is going on and we just wonder, how could people be so evil. From the word of God, " We do not wrestle against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places."

We will never have change, for the good, without God's Spirit. Our school children need to learn what this Country was based on. They need to learn what is the meaning of what is written on our money. That need to learn what a conscience is.
I am not a religious person. I do not believe in any one faith. I believe in God. I am not saying that we need to push any religion on anyone. No matter where your from or who you are, Everyone's God is the same. He is Love, righteousness and everywhere. He is all-knowing, all powerful, truth and wisdom.

Now we have the means to bring the world together. We also have the means to bring this Country together. Through the Internet, we can make our voices be heard.

[GoodWolf]

"I am not a religious person"
________________

W.T.F.?!!

[GoodWolf]

"He is Love, righteousness and everywhere. He is all-knowing, all powerful, truth and wisdom."
___________________

Unfortunately, you exhibited absolutely NONE of the above in your commentary.

[apostasyusa]

It is true, that one who is faithful has faith that one has the knowledge of the existence of ones God. Belief in your faith is your right, and in our country we are free to believe what we wish, but we are not free to tell other people what they can or can't do simply based on our beliefs. Philosophical grounds are alone insufficient justification to disallow citizen's rights that others retain. Just because you limit your beliefs regarding the uses of our reproductive systems does not give you the right to limit what other may believe.

When millions of polygamists stand up and say they want the right to marry multiple people....then I will stand up for their rights too, but don't hold your breath because I don't see that many women wanting to share their husbands with others. Ever heard of women wanting to marry multiple men? NO...because it's a mans world and polygamy is a mans idea.

Republicans and Conservatives are hypocrites. They will rally against gay folxs but have no problem hiding Larry Craig in the closet. This is a perfect example of the absolute hypocrisy of the right-wing freakish Americans. They don't care who or what it is they're fighting as long as they are fighting something. The oppressive excessively religious or ideological, will always be able to challenge opposing philosophical standpoints, simply by giving ID a new name or finding in religious documents contradictions to the teachings of science. YOU NAME IT, They can challenge it!! The inveterate of our society, like religion, come in vicissitudes marked by generations; therefore philosophical changes in society usually happen over centuries. I think one state at a time the conservatives lose this battle and millions of dollars spent trying frivolously to oppress a minority of Americans.

One thing I've learned about today's conservative.....they have no idea about how to pick their battles. Can we just say...Iraq?