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Case Is Made vs. US Marriage Law
Court hears gay group’s challenge
The case is widely considered the first serious legal challenge in the nation to the Defense of Marriage Act, and puts the Obama administration in the awkward position of defending a law that it says it opposes but believes is constitutional.
A victory by the plaintiffs would be a huge symbolic victory for gay-marriage proponents and would dismantle a controversial federal statute that affects more than 1,000 marriage-related benefits. alex-s Mary L. Bonauto, a lawyer for the Boston-based nonprofit Gay & Lesbian Advocates and Defenders, argued in US District Court that the federal government had always let states decide who was legally married until it passed the law in question.
"Your honor, the only thing that changed here was who was going to marry,'' Bonauto told US District Court Judge Joseph L. Tauro. Bonauto also led the lawsuit that resulted in the landmark 2003 decision by the state Supreme Judicial Court legalizing gay marriage in Massachusetts.
Bonauto said that because of the law, the federal government treats the plaintiffs - seven gay and lesbian couples and three men whose husbands have died - as second-class citizens. They are ineligible for numerous federal benefits that heterosexual couples receive, including health insurance for spouses of federal employees, retirement and survivor benefits under the Social Security Act, and eligibility to file joint federal income tax returns.
W. Scott Simpson, a Justice Department lawyer defending the government, countered that the Obama administration agrees that the federal law is discriminatory and supports its repeal. But Simpson said the department is obliged to follow the longstanding practice of defending federal laws signed by previous presidents as long as the statutes are constitutional, which, he contends, the Defense of Marriage Act is.
"This presidential administration disagrees with DOMA as a matter of policy and would like to see it repealed,'' he said, in a courtroom overflowing with supporters of gay marriage, including the 17 plaintiffs, who were allowed to sit in the jury box. "But that does not affect its constitutionality.''
Congress had a legitimate rationale to pass the federal law 14 years ago, he said, given that some states had begun discussing legalizing same-sex marriage. The statute, he said, preserved the status quo - marriage reserved strictly for heterosexuals - and prevented federal agencies from having to keep track of which states had legalized gay marriages and which had not.
Several supporters of the suit did not buy the government's argument, including the notion that President Obama, who has spoken repeatedly of repealing the federal law, had to defend it.
"I think the Obama administration, if they believe the statute is unconstitutional - which it clearly is - does not have a duty to defend it. In fact, they have a duty not to defend it,'' Shannon P. Minter, legal director of the National Center for Lesbian Rights, who took a flight from San Francisco to attend the arguments, said afterward.
The case is being watched by supporters and opponents of gay marriage and is widely expected to end up before the US Supreme Court, regardless of how Tauro, an appointee of the Nixon administration, rules.
A victory by the plaintiffs would not extend same-sex marriage beyond where it is legal - five states and the District of Columbia. Nor would it require states where gay marriage is not permitted to recognize the marriages of same-sex couples who wed in other states. But it would be a huge symbolic victory for gay-marriage proponents and would dismantle a controversial federal statute that affects more than 1,000 marriage-related benefits.
Critics of the suit also say the stakes are high.
Kris Mineau, president of the Massachusetts Family Institute and an outspoken opponent of same-sex marriage, said the lawsuit is a thinly veiled attempt to spread gay marriage to other states. He said voters in 31 states have passed ballot measures banning gay marriage and that proponents of the lawsuit turned to the courts because the tide of public opinion is against them.
"This is a wedge to try to defeat the DOMA unilaterally,'' Mineau said in a telephone interview. "And once the camel has its nose under the tent, it's not going to be content with a half a bite.''
The plaintiffs say the law violates the equal protection guarantee of the Constitution.
Dean T. Hara, a plaintiff who was married to retired congressman Gerry E. Studds from May 2004 until Studds died in October 2006, said the federal government denied him a $255 lump-sum death payment and thousands of dollars in benefits as the surviving spouse of a retired federal employee.
"We are not a country that was built on double standards,'' said Hara, a 52-year-old Boston financial adviser. He rejected arguments in the government's brief that Congress is entitled to respond "incrementally'' to changing social mores.
"I think that's the equivalent of going to Rosa Parks and saying, ‘You can move up one row of the bus at a time and eventually you'll get to the front,' '' he said outside the courthouse.
The federal government has asked Tauro to dismiss the suit, while the plaintiffs have asked to rule in their favor on summary judgment. Tauro praised the lawyers for their arguments and said he would take the matter under advisement.
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29 Comments so far
Show AllDOMA is undeniably a case of discrimination. One would think that our country would have forever forsworn discrimination after the Civil War but that has obviously not happened.
However, governments, whether local, statewide, or federal can discriminate legally. Just one example: in my State of Texas you cannot obtain a driver license under the age of 16 which clearly discriminates these citizens.
It has long ago been established that governments must show "compelling interest" why discrimination is necessary. Courts have traditionally required proof that most/all residents in the affected jurisdiction will suffer serious harm if the discriminatory law is not enacted. In the case of driver licenses the evidence was so overwhelming that nobody over the age of 16 complained.
It is therefore my opinion that the challengers make their case needlessly difficult by claiming that DOMA is broadly unconstitutionally. That, in my opinion sounds brave but is not necessary. They should focus on "compelling interest" and ask the DOJ/White House what the "compelling interest" of the federal government is to outlaw gay marriage. They should demand proof that scrapping DOMA will inevitably harm the overwhelming majority of our citizens in all States at a time when especially the younger generations no longer seem to mind. I bet that they can only produce a ton of stammering nonsense.
I have therefore no difficulty to characterize the position of the White House as one protecting biased and super-religious old farts. How shameful. How unconstitutional!
No amount of logic or legislation will solve this issue, until the psychotic fear is removed from the hearts and minds of the opponents of gay marriage.
See Ghazi!
The Obama administration is proving in spades that no one and no institution ever gives up power without a fight. To fail to defend this law, the executive branch would have to cede federal power over something (anything!) and give it back to the states. Obama has not rolled back any of the executive powers grabbed by Bush in violation of existing laws and the Constitution.
Marriage is a religious institution and all religions state that homosexuality is an abomination and deviance with the exception of Satanism and Wicca. Give them civil unions with the same rights (exception: adoption) that normal couples have.
If marriage is a "religious institution" then our constitution forbids governments to make laws that forbid gay marriages. You got yourself wonderfully hoisted on your own petard!
I love ad hominem pie.
The greatest stumbling block to recognition of gay marriage is the belief that "marriage is a religious institution". This is just not so. Marriage is recognition by the state of the contract entered into by two individuals. The solution that I would recommend is that the state no longer recognize religious ceremonies of marriage but rather only allow civil unions to be entitled to all the benefits of marriage. In Europe one must have a civil ceremony at the register's office for one's marriage to be deemed legal. If the parties then wish to have a religious ceremony they can do so. Religious ceremonies are not recognized by the state. Does anyone see how the way we do things here might be viewed as violating the establishment clause?
I don't know if you noticed this or not but we aren't Europe. The homosexuals can go to Europe and live there if they want a civil union. As for marriage not being religious in nature...all I can say to that is wow, you really have no clue of history at all.
Ghazi wrote: "I don't know if you noticed this or not but we aren't Europe."
The entire USA isn't even in Kansas anymore....and Toto will probably be soon be forced-fed Soylent Green Kibble if things get worse.
Marriage is a very legal thing and many things rely upon it for a lot of determination in matters in which religion plays no part.
Marriage within a religious sense is much more for the group-mind half-thinkers who want to be part of a clique and fit in with their immediate peers even if it means hobbling themselves with truly ancient disabling caveats upon their lives that were dreamt up by long dead men to control people, and moreso over women and children.
Religion is a delusional mystical lie force-fed to kids, passed down within families and groups under the guises of 'tradition' and 'proper ways of thinking'.
As soon as mankind rids itself of all the walking zombie beliefs of religion and then instead adopts a much more universal basic respect and goodness in treating ALL people in the existence we call life, the sooner we can look back on these sorts of periods in mankind's history for what they truly are, the garbage that held back humankind's progress for thousands of years.
Once and forever: marriage beyond the civil contract is what the couple thinks/believes it is and hysterical outsiders have no business forcing their medieval views on that couple.
Ah no actually it's not. I mean if you want to be like GW Bush and make stuff up as you go along then maybe it is but if you look at history it has always been a religious institution.
I and my wife do not consider our marriage of more than 40 years to be religious. Your mentioning of GW Bush is so ridiculous that I laugh out aloud. I did not make stuff up as I went along. This was my view even before we were married. I sucked it in with my mothers milk. When I married I was not asked whether I believe in any God; thanks Heaven!
Yes marriage in the past has been nearly always a "religious institution" except in some of Europe after Napoleon allowed it to be only civilian. And except in Russia and China after their revolutions. The world changes, get used to it. You are trying to impose your view on millions if not billions of couples worldwide. What a sad waste of energy. We are making history; you are not.
Rubbish. There is more to History then your own view of the World.
I will not list every example but in Ancient Rome and Greece marriage was seen as a Cultural institution. No "Church" or "Priest" had to oversee a marriage in Athens.
Amongst Aboriginals In Canada marriages were often arranged between clans and tribes by Mothers while their offspring still children and many of these were not even accompnaied by Ceremonies. It was not seens as "religous".
History is not limited to White Christians.
Marriage in Europe as overseen by the "Church" and "Religous Institutions" did not happen until medieval times
I'm not a Christian.
Ghazi: I have accepted your implicit suggestion to go back into the history of the organized forms of all major religions. What I always find, at least during the early stages, is: one man with many women, a.k.a. polygamy. And do not ask me to exempt Christianity because two of its early heroes: Constantine and Charlemagne practiced polygamy. Do you suggest that we allow polygamy again?
I am absolutely certain that every Arab ruler who legally practices polygamy is deeply convinced that every one of his marriages was concluded in "the eyes of Allah" hence is absolutely religious in nature. Now this leads me to a dilemma. Does Allah have "a better idea" (to paraphrase the automaker Ford) about marriage than today's Jaweh and the Christian God or is it the other way around?
I notice that essentially every Christian ruler had numerous extramarital affairs. What are your views of the affairs of FDR, JFK, and Bill Clinton? Should we simply admit that this is the way the world is?
I do not have to go far back into Christianity to understand why its organized religion claimed that marriage is really religious in nature. One word suffices: power. Huge power over the couples.
1. Refuse divorce even when it turns out that one of the partners is an idiot and the other partner did not know this before the marriage ceremony.
2. Practicing birth control which is not approved by the church is a sin and will land you eventually in hell if you do practice it.
3. Refusing to raise your children in your faith can result in excommunication, at least the threat of it.
In Europe the practice of "civil marriage first" was instituted everywhere when it did not exist by Napoleon in his struggle with the Pope for supremacy in civil matters. Are you suggesting that the Pope is supreme to our constitution, even supreme to the U.S. Supreme Court should it decide that legal gay marriage is an unalienable right?
If the religious tenets permit polygamy then yes they should be allowed to practice it. However we don't have freedom of religion here, just freedom from being Christian.
I actually prefer that couples continue to have the choice of a religious or a civil ceremony as long as the states and the federal government do not consider one of the two to be more deserving of protection than the other. The first step for every marriage is obtaining a marriage license. That is a non-religious "ceremony" which takes precedence over everything that follows.
In this context it is also abundantly clear that Ghazi muddies the waters by talking about "marriage" when the fundamental issue is: can a state refuse to issue a civil marriage license to a gay couple. If the answer is "no" as I believe it is, then the states have no constitutional power to demand that the follow-on must be a religious ceremony.
I'm fine with giving a civil union all the same rights as a religiously married couple EXCEPT that of adoption.
Ghazi, please get this into your addled brain. Marriage is a legal contract regulated by states in accordance with our constitution. "Religiously married couples" only exist in your uninformed brain but they do not exist constitutionally. Ergo, states cannot test "gay marriage" against your totally unconstitutional construct of "religiously married". Every one of your postings gets you into deeper and deeper legal muck. I wonder whether you have ever read and studied our constitution.
For supporters of gay marriage it is vitally important to understand the shenanigans of the opponents and have the correct answers to their misdirections and, occasionally, lies. That is the main reason why I have responded to every one of Ghazi's postings. The Ghazi's of this world will always come up with new garbage such as "EXCEPT adoption" immediately after "same rights"!
I wonder if you can debate without ad hominem pie.
You say I don't know the Constitution but I wonder, how do you feel about gun rights?
As for the except part at the end I'm sorry that I don't want a small child walking in on Adam and Steve as that would be far more repulsive and shocking to a child than Adam and Eve. I mean it's just gross.
I wrote that I WONDERED and not YOU DON'T KNOW...Start storing in your brain what you read and stop fantasizing to your advantage. My view on gun rights is none of your business in the context of this discussion and is a diversionary trick of a trickster. You are fully entitled to your view on adopted children and so am I but diverting the issue onto "a small child walking in on Adam and Steve" which is never going to happen because adoption is not "walking in on Adam and Steve" is just another one of your diversionary tricks. I would love to be a fly on the ceiling if you were allowed to make all of your published remarks orally as a witness against gay marriage before the Supreme Court.
At this time DOMA is a federal law. It states that marriage is a legal contract between a male and a female. If the supporters of DOMA can convince a majority of the Judges/Justices that the federal government can arrogate to itself a right which under our constitution is placed in the States DOMA will win in any court today but not necessarily in the future when you will be in a dwindling minority. California's proposition 13 is challenged in court among others on the grounds that it violates the equal protection clause of the constitution. I urge you to understand that these cases about marriage are not about religion/morality/sin/repulsive/gross or whatever you come up with but about what our constitution demands.
Speaking about "ad hominem", every one of your characterizations of gay persons is a vile ad hominem attack on them as a group.
It is relevant to your point of following the Constitution. Gun rights that is.
Well I'm sorry that you are offended that I dislike your group. Actually I'm not but whatever I like seeing your internet warrior rants.
Crowsnest, there is nothing about requiring a marriage license that is in accordance with our Constitution. It goes against the intent and purpose of the Constitution. I don't know if you are familiar with the 9th Amendment or not, but paraphrased, it says, "Even though certain rights are listed in the Constitution, it does not mean that other rights kept by the people should be denied or belittled."
This Amendment was written into the Bill of Rights to "prevent misconstruction or abuse of its power". (You will find the intent of the Bill of Rights in it's Preamble. A preamble is defined as the intent or reason that a legal document was written.) As long as a license is "required" by either the State or Federal Government, they are abusing their power according to the Constitution and the judges that support these whims of the people are acting in bad behavior and should be booted right out of their seat.
Marriage is a commitment between two people and not even the State should have access to this innate (self-evident, meaning obvious and needs no proof) right. Unfortunately, after the Civil War, people gave up this right and let the State turn it into a privilege by allowing them to license it because they didn't want interracial couples to marry. Prior to that, no license was needed and most people would have thought it silly to have to ask the State for permission to marry.
When you give your rights away out of fear, as in the case of the original reason for a marriage license, bigotry, expect at some point that someone will deem the "priviledge" revoked.
Almost everything that happens both during religious and non-religious marriage ceremonies is legally irrelevant and that includes the traditional "I do" as well as the "ringing". The only legally meaningful question which I have never heard pronounced is: "do you (man/woman) understand and accept the conditions of this contract"? The only legally binding act is the signing ceremony. Hence there is absolutely no legal distinction between a religious and a non-religious marriage as our constitution demands. It is obvious that Ghazi does not understand this. He is apparently living in the days of the Mayflower arrival.
Almost everything that happens both during religious and non-religious marriage ceremonies is legally irrelevant and that includes the traditional "I do" as well as the "ringing". The only legally meaningful question which I have never heard pronounced is: "do you (man/woman) understand and accept the conditions of this contract"? The only legally binding act is the signing ceremony. Hence there is absolutely no legal distinction between a religious and a non-religious marriage as our constitution demands. It is obvious that Ghazi does not understand this. He is apparently living in the days of the Mayflower arrival.
I think he confuses the "Party" that happens after so many marriages with "A Religous Ceremony"
There is nothing "religous" about the cultural traditions of throwing rice the bouquet being tossed over ones shoulder, the bride dancing with the groom and everyone getting tanked and suddenly thinking they can dance. ;)
Is this even a possibility? How about an internet generated amicus curiae in this case, supporting the plaintiffs' equal protection arguments, and countering Obama's take on constitutionality? Guess it would be multi-tasking in a sense: testing whether net neutrality is functioning, and testing what kind of impact such a friend of the court brief, with thousands of signatures, can have. Perhaps ACLU could write it, and numerous websites submit it for signatures.
This is such a silly fight. ALL people should be able to marry whom they want. It is not a religious act because then, we would have to decide which religion, and as some have pointed out, we do have a separation of church and state. If marriage is a truly religious act, then those who marry without a church wouldn't be legally married. Do those people know this?
Although our money does state" In God we trust," it doen't state which god, and this is so confusing. This monetary statement does seem to imply rendering unto Ceasar and God at the same time. I don't think that sounds very possible unless of course one is in a "propserity" religion,and God knows this would just open up another" can of theological worms."
OMG, I just had an epiphany. "Corporate persons" marry all the time when they merge. HA! What's good for the "corporate person" certainly shouldn't be denied to the populace at large. Comcast and NBC...two ALIKE corporate persons marry. AT&T has been practicing polygamy, haven't they? Why should "corporate persons" have different "merge" rights than the rest of us "persons?"
Since America seems to be founded more upon "Property" rather than anything else, we should just make this whole situation a business matter.
If some insist that only females and males may marry, then this is obviously discrimination. However, if we look at this as a "thing" to be bargined for, then it suddenly has great value. ( at least in America.)
***Heterosexual female, no longer married and not interested in experiencing this again, still retains the "right" to do it again. I have a" right" and someone else does not. What's your offer?"*****
I understand that someone once sold their "soul" on ebay; therefore, I should be able to sell my"right" to marriage to whom ever wants it.
In this time of great unemployment, we would be creating more employment: calligraphers; florists, wedding dress and tuxedo makers; caterers; and horse drawn carriages ( a new addition ( eliminating limos) since the dying of the Gulf.)
There would, of course, be a marriage tax ( to keep communities from imploding completely) and so the government would benefit, as well as the ENTIRE populace, and since this "marriage tax " is controlled by the state, then religion has nothing to do with it.
If religions felt that they had the "Divine Right" to control this, then they should certainly start paying taxes. Separation of church and state doesn't imply a "free ride" for churches, does it? Does the tea party know this? Now this would be something to picket about.Down with BIG religion, because they are not too big to fail either. To ignore this disparity of funding , well this would be discrimination against the American taxpayer, and we've certainly seen a lot of that lately.
Since there are so many children in foster care, then many of these newly married couples would provide a home for newly unwanted children. Religions do seem to tell people to be "fruitful and multiply" but they don't say much about the rest of the life of said "bundle of joy."
If there's money to be made ( and this is the American way) then surely we can " afford" to let all people marry equally, and then, at least in this area of life, we would truly get to see "Democracy in Action." What could be more American than that?
Now, Congress, this issue is quite easily solved, so get on it and vote. NOW, may we next get on with the ERA?