Judge: Federal Gay Marriage Ban Is Unconstitutional

Here comes the next Roe. The judge actually ruled in one of the cases that defining marriage as between a man and a woman was completely irrational. Obama’s justice dept. practically gave the case to the other side:


The article mostly focuses on the other case. Here is the one I mentioned:

I read this earlier today, and I’m outraged.

What I find interesting is what the judge said: " DOMA offends the 10th amendment"
The tenth amendment is The Don’t Tread On Me amendment that the tea party and right wing radical groups love to throw around.:thumbsup:

I came to the CAF for some calrity on this issue but IM really confused now.

Im guessing the FED judge said, re- the 10th amendment, given marraige is not mentioned in the constitution, the legailty of same sex is reserved for the states or the individual.

This means that its up to the states to say whether to allow or not and that DOMA is not applicable.

This would mean that in any place where the people have voted against SSM or where the legislature legislates that its ok, that state law is ok, but its up to each individual state.

This isnt a trick question, just a question from someone who is not a constitional (or otherwise) lawyer, trying to understand all the fancy words on the websites.

Also the right wing radical comment Im sure is looking to inflame what may have been an informative and enlightening thread,

I notice a lot of threads on CAF go that way…

If that’s his reasoning, then the judge is absolutely right. Now I wonder if the judiciary will apply that same logic to all the other abuses of federal power. I doubt it. The only way to protect marriage at the federal level is a constitutional amendment, apparently.

If his logic were only applied to Roe vs. Wade states would still be able to outlaw abortions within their jurisdiction :(.



Gay advocates are hailing a U.S. district court ruling in Boston, that could bring federal recognition to gay marriages from Massachusetts. On Thursday, the judge said part of the federal Defense of Marriage Act — or DOMA — is unconstitutional.

The case was brought by eight gay couples who argued the federal government was unfairly denying them basic perks that other married couples get — like social security benefits and certain tax breaks.

The couples argued the federal government has always deferred to states on who’s married — for example in terms of age or race — so if Massachusetts says they are married, they should be recognized as married.

U.S. District Judge Joseph Tauro agreed. He said when it comes to providing benefits, he could conceive of “no way” in which a couples sexual orientation is relevant.

Not an unwise decision from a position of supporting the unconstitutional DOMA. From that perspective, it is better to lose in a single State court than to allow an appeal to proceed to the Supreme Court with the authority to apply it’s ruling (and it certainly would rule against DOMA) nationally. The Supreme Court has chosen to hide under it’s bench on the issue for years but a direct challenge would force them to make a ruling.

What this is all about is that regulation of marriage is up to the states. That’s why there are no divorces in federal courts. Should the states have an unconstitutional law as to marriage on their books, then the federal courts can become involved. Like the laws against interracial marriage.

But, generally, the federal government should not make laws as to marriages, since that is an area left to state control, under the constitution.

OK, I’m confused. If DOMA (a federal law) is unconstitutional because of the 10th amendment and should be a state issue, then how can a state law banning same sex marriage come under federal review?

I need to make a correction. The judge ruled on ‘equal protection’ grounds under the 14th amendment. Basically, when federal laws treat two classes of people differently, such making of distinctions is subject to ‘strict scrutiny’, Here the judge said that the federal law had no connection to a ‘legitimate government interest,’ which is a requirement under ‘strict scrutiny’.

If you want to be bored, you can read the decision here:


State laws as to same sex marriages could come under federal *court *review if the laws violated someone’s constitutional rights.

The Judge felt that it was an issue of a separation of powers between Congress and the States. He ruled that Congress cannot make that decision on behalf of the States. The State can make the choice but whether or not the outcome of that choice is Constitutional is, ultimately, for the Supreme Court to decide. In otherwords, we’re talking about the act of making a choice (State legislature’s authority) vs what the constitutional validity of that choice is (Judiciary’s authority). A State can excercise it’s right to make a choice but it doesn’t have the right to enforce the wrong (unconstitutional) one.

The constitutionality of DOMA is supported in Article IV Section 1 of the US Constitution.

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The key part being that “Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

For reference:

DOMA Section 2
Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

DOMA Section 3
Definition of ‘marriage’ and ‘spouse’
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 a wife.

Your assessment is incorrect. DOMA is unconstitutional as marriage was determined to be a “basic civil right” by the Supreme Court (Loving v Virginia). It also ruled that Congress does not have the authority to define or change a right and that this authority is the exclusive province of the Judiciary (Boerne v Flores). Therefore, Section 3 of the DOMA is unconstitutional. The Supreme Court’s decision in Boerne v Flores also states that Congress must demonstrate a compelling State interest in exempting the government (both Federal and State) from it’s Fourteenth Amendment obligations. Congress has not so Section 2 is out the window.

Your assessment is incorrect. ‘Full faith and credit’ applies to laws of states being observed by other states. Plus, arguing for the constitutionality of the law is moot now.

Nope. That requires a gross misapplication of logic and a refusal to actually read Loving v. Virginia.

Marriage (the union of a male and a woman) was defined as a natural right that the law could not impede without reaching a standard of strict scrutiny. Loving v. Virginia dealt with a situation in which two things were true:

1.) the State of Virginia made natural marriage (cohabitation and sexual relations between a man and woman) a crime without a civil marriage license

2.) said civil marriage license would be denied to the union of a man and a woman if one was black and the other white

Ergo, the man and woman in question were having their natural right to join in a martial union (private, public, or otherwise) impeded by the government. The government had no basis that could pass the Strict Scrutiny standard and its miscegenation law was struck down as Unconstitutional. (Seriously, there argument was that the State had an interest in making sure blacks and whites shouldn’t interbreed!)

Meanwhile, restrictions on against bigamy and incestuous marriage stand to this day.

It takes disingenuous verbal gymnastics and abuse of history to attempt to imply that the justices in that case understood “marriage” to be anything other than the union of one man and one woman.

No, the States do not have the right to unilaterally redefine terms with established legal meanings for Federal law and the laws of the other States under the “Full Faith and Credit” clause. Massachusetts can no more change the definition of marriage and force the Fed and other States to give same-sex unions tax and benefit status than Massachusetts can redefine the definition of “slave trade” to include working for under $10-and-hour and abolish such wages under the Constitution’s provision abolishing the trade of slaves.

The only way this ruling survives scrutiny of appeal all the way up the the Supreme Court is if the Obama Justice Department even more overtly attempts to throw the case than they already have. That’s been the general trend for these court-run same-sex marriage rulings - the state authority as Defendant has declined to appeal the rulings based on 14th Amendment provisions to the Supreme Court because they are in collusion with the prosecution (as was the case in MA when I lived there).

This is because the standing precedent with the Supreme Court is Baker v. Nelson, which rules that failure to change the laws and benefits of marriage to extend beyond the union of one man and one woman does not violate the 14th Amendment.

  • Marty Lund

For a lawyer, you don’t read the Constitution much. I suggest reading the second sentence in Article 4, Section 1 again.

Your distortion of the facts proves the weakness of your argument.

I defer to Marty’s answer.

This statement is such a ludicrous misinterpretation of that case. The court has never made a blanket ruling that Congress does not have the authority to define or change a “right” and that this authority is the exclusive province of the Judiciary. Such a ruling would be in gross violation of the Constitution and certainly an outcome the Congress would never accept.

Congress, through Article IV Section1 of the Constitution, “may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Therefore, Congress passed DOMA through constitutionally enumerated powers.

Your argument on Section 3 is wrong as well. Section 3 defines marriage as it relates to provisions of federal law and federal law only. Congress has wide authority to clarify existing definitions in federal law through new federal law (in this case DOMA).

Ed Whelan, in his commentary on the ruling had this to say:

"This ruling strikes me as just plain nuts. Section 3 of DOMA merely defines what the words “marriage” and “spouse” mean in federal law. If Congress had the authority to enact the federal statutory provisions that contain the words “marriage” and “spouse”—and [Judge] Touro never suggests otherwise—then surely it had the authority to define what those words mean in those federal statutory provisions. The fact that it chose to do so in a single law rather than through separate definitional sections accompanying the more than one thousand provisions of federal statutes that use those words can’t have any bearing on the question of federal power.

DOMA doesn’t “induce Massachusetts to violate the equal protection rights of its citizens,” as Touro ludicrously asserts. All that DOMA means is that if Massachusetts wants to take part in federal funding programs that condition benefits on marriage as federally defined, it must, for purposes of those programs, comply with that condition. What Massachusetts is really seeking, and what Touro is commanding, is that federal taxpayers subsidize same-sex marriage in Massachusetts."


Regardless whose arguments are ludicrous or brilliant, or who hasn’t any idea how to interpret the applicable Articles of the Constitution, all this is just gas until the Supremes pass on the constitutionality of the DOMA. What’s the point of getting worked up, when none of us will have anything to say about the final ruling? :shrug: