Federal Defense of Marriage Act Declared Unconstitutional

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gay marriage Federal Defense of Marriage Act Declared Unconstitutional

By DENISE LAVOIE (AP)

BOSTON — A key part of a law denying married gay couples federal benefits has been thrown out the window in Massachusetts, the first state to legalize gay marriage. The ball now lies in the White House’s court, which must carefully calculate the next move by an administration that has faced accusations it has not vigorously defended the law of the land.

President Barack Obama has said repeatedly that he would like to see the federal Defense of Marriage Act, known as DOMA, repealed. But the Justice Department has defended the constitutionality of the law, which it is required to do.

The administration was silent Friday on whether it would appeal rulings by U.S. District Judge Joseph Tauro. Spokespeople for the White House and the Justice Department said officials are still reviewing the rulings.

DOMA defines marriage as between a man and a woman, prevents the federal government from

gay marriage rally Federal Defense of Marriage Act Declared Unconstitutional

Suzuki / AP

recognizing gay marriages and allows states to deny recognition of same-sex unions performed elsewhere. Since the law passed in 1996, many states have instituted their own bans on gay marriage, and a handful have allowed the practice.

Tauro ruled Thursday in two separate cases that DOMA is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including health insurance and the benefits of filing joint tax returns.

The rulings apply only to Massachusetts, where same-sex marriage has been legal since 2004. But gay marriage supporters are hoping the rulings could prompt other states to file their own challenges to DOMA and could also give momentum to a bill pending in Congress that would repeal the law.

Many opponents and proponents expect that the Obama administration to appeal the rulings to the 1st U.S. Circuit Court of Appeals in Boston, and that the question of whether the law is unconstitutional will eventually be decided by the U.S. Supreme Court.

Many Obama voters, particularly among gays, will push for the administration not to appeal Tauro’s rulings, said former Assistant Attorney General Robert Raben. But the administration could set a dangerous precedent if it does not continue to defend the law, he said.

“You want the Department of Justice to stop because you won a case; I understand that,” said Raben, who worked at the department during the administration of President Bill Clinton, who signed DOMA into law.

“But you could have a conservative Department of Justice that won’t enforce hate crimes, that won’t enforce employment nondiscrimination acts, that won’t enforce the Ryan White Act, that won’t enforce all kinds of new protections for gays and lesbians because the attorney general doesn’t agree with them. That’s not a regime you want to live in.”

DOMA was enacted when it appeared Hawaii would soon legalize same-sex marriage and opponents worried that other states would be forced to recognize such marriages. Since 2004, five states — Connecticut, Iowa, New Hampshire and Vermont, in addition to Massachusetts — and the District of Columbia have legalized gay marriage.

Some gay marriage opponents say that despite the Justice Department’s legal obligations, it has purposely mounted a weak defense of the law.

“It’s not surprising that this judge got it wrong, because a sham defense was put up by the Obama Justice Department,” said Maggie Gallagher, chairman of the National Organization for Marriage.

But state Attorney General Martha Coakley, who filed one of the legal challenges to DOMA, said the Justice Department “made their best arguments.”

“We didn’t think that this was anything other than a legitimate adversarial proceeding,” Coakley said.

During court hearings, a Justice Department lawyer argued before Tauro that the federal government has the right to set eligibility requirements for federal benefits, including requiring that those benefits go only to couples in marriages between a man and a woman. Another lawyer said the federal law does not interfere with the rights of individual states to “experiment in the area of marriage.”

Under federal rules, there is an automatic 14-day stay of judgments in civil cases, so same-sex couples in Massachusetts won’t be able to file for benefits immediately, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders. If the Justice Department appeals Tauro’s rulings, the court would likely grant a stay while the appeal is pending, he said.

Buseck said he knows of only one other pending legal challenge to DOMA, in Oklahoma, where two gay couples are challenging both DOMA and the state’s constitutional amendment barring same-sex marriage.

Susan Barton and Gay Phillips, one of the couples in the case, were joined in a civil union in Vermont and have marriage licenses from California and Canada. Barton said she was encouraged by the Massachusetts ruling.

“We want to have the same benefits, rights and responsibilities of every other married couple that are citizens of the United States,” Barton said.

Associated Press writers Jesse J. Holland in Washington and Sean Murphy in Oklahoma City contributed to this report.

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