BOSTON (BP)–In a landmark decision that could force the United States to recognize “gay marriage,” a U.S. district judge July 8 overturned part of the 1996 Defense of Marriage Act, ruling that the government cannot constitutionally distinguish between traditional marriage and same-sex “marriage.”
Judge Joseph L. Tauro’s ruling on a pair of lawsuits out of Massachusetts invalidates Section 3 of the act, which says that for the purpose of federal law, marriage “means only a legal union between one man and one woman as husband and wife.”
It is the first ruling of its kind; if upheld, it will place the United States alongside the 10 or so other countries worldwide that recognize homosexual “marriage.” It would force the government to recognize “gay marriages” from Connecticut, New Hampshire, Vermont, Iowa and Massachusetts, and by extension grant federal benefits, such as tax breaks and federal employee spousal insurance, to same-sex couples.
“Four to five years ago when we were encouraging the passage of the federal marriage amendment, many people criticized us and said that we were crazy, that the Defense of Marriage Act was sufficient and that we were just trying to rally the troops and get out the vote,” Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, told Baptist Press. “What we said would happen has happened. We said that sooner or later a federal judge somewhere was going to strike down all or part of the Defense of Marriage Act.
“The only way,” Land added, “for the nation to protect itself from same-sex marriage being foisted upon it by imperial judicial fiat is to pass a marriage amendment that defines marriage as being between a man and a woman. Judges can’t strike down amendments.”
Land predicted that the case will end up before the U.S. Supreme Court and result in a 5-4 decision one way or the other, with Justice Anthony Kennedy — who has voted with the liberal bloc in recent cases involving homosexuality — casting the deciding vote.
The Justice Department, which has the responsibility of defending the law, has not announced whether it will appeal. President Obama opposes the law, and legal conservatives have complained for months the Justice Department was putting forward a weak defense by refusing to use the best arguments in defense of the law. In 1996 the House said the law was needed to encourage responsible procreation and mother-father homes. Some state courts have cited those reasons in refusing to legalize “gay marriage,” but the Justice Department chose not to use that line of reasoning.
“Children do best with a mother and a father and the government has a legitimate interest in promoting that ideal,” Dale Schowengerdt, an attorney with the Alliance Fund, told Baptist Press. “The disappointing thing is that the government explicitly disavowed the interests … that Congress referenced [in 1996]. It’s very disappointing, especially in light of the fact all the courts that have upheld the definition of marriage relied on those bases.”
Schowengerdt said that some of the attorneys currently working in the Obama Justice Department also served in the Bush Justice Department. During the Bush years, he said, the department used arguments based on procreation and child-rearing. Yet those same attorneys now have been told to abandon the best legal argument to defend DOMA, Schowengerdt said.
“Regardless of where you fall on the political spectrum, lawyers should make the arguments that other courts have ruled in favor of,” he said. “That’s a no-brainer. … But that’s what, under this administration, the attorneys have had to do.”
The ruling just adds to what could be a banner summer for homosexual activists, despite the fact that a same-sex civil unions bill was vetoed in Hawaii. Homosexual groups are hopeful that a federal judge in a high-profile West Coast case soon will strike down California’s “gay marriage” ban. They also are optimistic a congressional bill repealing the military’s Don’t Ask, Don’t Tell policy will pass. On the pop culture front, NBC’s “Today” program reversed course July 8 and announced it will allow same-sex couples to participate in its “Modern Day Wedding Contest.” The Today show even said it is a “longtime supporter of the LGBT community.”
The Defense of Marriage passed in ’96 by margins of 84-15 in the Senate and 342-67 in the House and was signed by President Clinton. But ever since, homosexual activist groups have targeted the law, viewing it as a major impediment to “gay marriage” legalization in all 50 states.
Section 3 of the law, Tauro argued, violates the Constitution’s equal protection principles and the constitutional guarantee that states are sovereign.
“Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves,” Tauro wrote. “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.”
The two lawsuits — one by the Massachusetts attorney general and the other by the homosexual group GLAD (Gay & Lesbian Advocates & Defenders) — did not seek to strike down the law’s other major section that gives states latitude in defining marriage, and Tauro’s ruling did not address the constitutionality of that section. GLAD is the same group that successfully sued in Massachusetts and Connecticut to legalize “gay marriage.”
The DOMA suits argued that the Defense of Marriage unconstitutionally denies same-sex couples the federal benefits of marriage.
“[T]he court simply affirmed that our country won’t tolerate second-class marriages,” Mary Bonauto, GLAD’s civil rights project director, said in a statement. “… This ruling will make a real difference for countless families in Massachusetts.”
Yet conservative legal groups responded to Tauro’s ruling by asserting the government has a legitimate interest in defining marriage between one man and one woman.
Brian Raum, senior counsel of the Alliance Defense Fund, noted that “it was a condition of statehood” that marriage be defined as one man, one woman “during the polygamy battle in the 19th century.”
Mathew D. Staver, founder of the legal group Liberty Counsel, said the federal government “can rationally conclude” that traditional marriage is “superior to same-sex unions.”
“Indeed, history and common sense show that marriage between a man and a woman has a procreative component absent from same-sex unions,” Staver said. “Moreover, children do best when raised by a mom and a dad. Same-sex unions permanently deprive children from experiencing male and female parenthood. This activist decision must be appealed, and when appealed, I am confident it will be reversed.”
Maggie Gallagher, chairman of the National Organization for Marriage, wondered if the judge wants to “start another culture war.”
“Does he really want another Roe v. Wade?” Gallagher asked. “The simple fact is that the right of the federal government to define marriage for the purposes of its federal law and federal territories has been clear since the late 19th century, when Congress banned polygamy. Only an incompetent defense could have lost this case. We expect to win in a higher court.”
Tauro was nominated by President Nixon.
Michael Foust is an assistant editor of Baptist Press.