DOMA | Gay Marriage | Massachusetts

DOJ 'Reviewing' DOMA Decision

DojWhile the Department of Justice is expected to appeal yesterday's decision against DOMA by a U.S. district judge in Massachusetts, they have yet to officially do so, though a rep from the federal department says that they "are reviewing the decision."

Not surprisingly, supporters of DOMA are throwing out sensational phrases such as "judicial activism" and "rogue judge" like they always do when it comes to gay rights. 

Said Andrea Lafferty of the Traditional Values Coalition: "We can't allow the lowest common denominator states, like Massachusetts, to set standards for the country." Nice way to put down an entire state. 

You may remember Lafferty whom in a discussion about ENDA, stated that she thinks transgenders are confusing to children.

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  1. The decision actually needs to be appealed so it can be ruled on by higher courts. Otherwise, it only applies to Massachusetts.

    So don't freak when the DOJ appeals it. It's actually the right thing to do if we want DOMA declared unconstitutional (or want this result to help married couples in other states).

    Posted by: Dan E | Jul 9, 2010 10:45:01 AM

  2. They'll appeal it all the way to the Supreme Court, where it will be overturned in nothing flat.

    Posted by: Roscoe | Jul 9, 2010 10:45:49 AM

  3. It's actually unclear that it will be overturned; Justice Kennedy, who is the swing vote, has pretty consistently been pro-LGBT equality.

    Posted by: Dan E | Jul 9, 2010 10:51:55 AM

  4. If people like Andrea Lafferty and Maggie Gallagher are the best spokespeople the religious right can find, it's already over.

    Posted by: sjorgl | Jul 9, 2010 11:15:25 AM

  5. The traditonal values coalition is considered a hate group by the Southern Poverty Law Center, yet she is quoted by the AP as credible on this issue? Why didn't they ask for a quote from the Aryan Nation and the KKK too? Or at least Fred Phelps. Fair and balanced, right?

    As far as the oh so predictable talking point that this "needs to be appealed", give it a rest. Why didn't the plainiffs just ask the judge to rule against them in the first place so they could appeal? What world do you live in where losing=winning. It is just more propaganda to cover the cowardly ass of Obama and his DOJ. Enough already.

    Posted by: gaylib | Jul 9, 2010 11:21:28 AM

  6. @DanE So don't freak when the DOJ appeals it. It's actually the right thing to do...

    Yup! However, I wouldn't be surprised if the DOJ decides for the first time that they WON'T appeal the decision.

    Posted by: Keith | Jul 9, 2010 11:23:30 AM

  7. DOJ will appeal, but not because they want DOMA overturned as the previous writer suggests.

    DOJ, under the guidance and direction of Eric "George Wallace" Holder prefers to stand on the Courthouse steps and try to prevent entry of those uppity gays into normal society.

    Expect a full throated defense of DOMA by Obama and George Wallace in the 1st Circuit and beyond.

    Posted by: salemlawyer | Jul 9, 2010 11:34:52 AM

  8. @Gaylib, no, it's not "propaganda" to "cover" anyone's "cowardly" ass. I don't know or care what DOJ's motivation is if they appeal; what I know is that if they *don't* appeal, this decision only applies in Massachusetts. It won't affect married couple in Iowa or Vermont or New Hampshire or Connecticut or California.

    I'm of the opinion that those couples deserve the same consideration. There are two ways for that to happen: 1. Each state launches its own suit against DOMA, and we hope that the judges in each state agree with judge Trauro. All future states that pass gay marriage are forced to do the same thing, and DOMA remains the law of the land. or 2. This gets appealed so that the overturning of DOMA is either established nationally or it's not.

    Again, to be clear: if it's not appealed, this ruling impacts only those couples living in Massachusetts, and DOMA remains the law of the land.

    I, for one, don't want that. It needs to be appealed. I don't *care* what the motivation of Holder or Obama or whoever is in appealing it. It needs to be appealed.

    Posted by: Dan E | Jul 9, 2010 11:43:24 AM

  9. The case is binding nationwide unless another a court in another district rules differently. In almost all cases, there is a hold on the ruling until it is appealed. So, as a practical matter, only full appeals courts can rule on the constitutionality of a federal law, and federal laws are rarely ruled unconstitutional, even by the SC.

    Posted by: anon | Jul 9, 2010 12:06:21 PM

  10. ROCK crushes SCISSORS!

    Jeesh, when will this game be over. How can people claim to be Americans while knowingly using the law to make some less equal than others?!

    Problem is, that IS our history in the US.

    Posted by: stephen | Jul 9, 2010 12:08:57 PM

  11. Where is Lafferty from? Some advanced state like Texas, Mississippi or Oklahoma, no doubt. LMAO!

    Posted by: candideinnc | Jul 9, 2010 12:09:43 PM

  12. I have some earnest questions.
    1) Does this apply to federal questions such as immigration? so:
    1a) If I marry a non-US citizen in Massachusetts, will that affect his immigration status?
    1b) Can we file a joint federal tax return?

    2) Someone above said that "The case is binding nationwide unless another a court in another district rules differently." So if I marry same-sex in Connecticut, is the answer "yes" to 1a and 1b above?

    Posted by: me | Jul 9, 2010 12:26:46 PM

  13. We have relatively low divorce rates and crime rates in Massachusetts. The trashy weirdos in the rest of the U.S. would do well to try to imitate Massachusetts.

    Posted by: John | Jul 9, 2010 12:28:20 PM

  14. Dan, tell that to plaintiff Hillary Goodridge, who reacted this way about the possiblity of an appeal: "I would find it very disheartening that they would choose that course of action," Goodridge told Raw Story. "I want to see the president and his administration committed to full marriage equality." I agree with her. If you want it to be appealed, go file (and lose) your own god damn lawsuit.

    Posted by: gaylib | Jul 9, 2010 12:32:11 PM

  15. Feds have control over immigration not marriage. What ever is the end result won't have too much effect on what's going on in Arizona's suit. Also, even if DOMA is overturned, it will do nothing to recognize same-sex marriages in states that already have laws on the books making marriage only between a man and woman. We still have a ways to go.

    Posted by: Piper | Jul 9, 2010 12:40:56 PM

  16. But I can go to a state where gay marriage is legal and get married and have my marriage recognized by the federal government. You know, the part that really counts when it comes to immigration, social security, taxes, etc. If I live in Utah and they don't recognize my marriage, well good for them, I still have the benefit of federal recognition, and imo that's a lot more important.

    Posted by: gaylib | Jul 9, 2010 1:02:25 PM

  17. This ruling has the potential to drive a wedge between religious and social conservatives and the idealogical conservatives who tend to be more libertarian. Basically Section 3 of DOMA defines "married" or "marriage" as between a man and a woman everywhere taht those words appear in federal statute, regulation, guidance, policy, etc. This ruling says that the right to define married and marriage has always been a right of the states and is not within the purview of the federal government (without separate contitutional authority).

    At its core, this is a state's rights victory. It is also a gay rights victory because of the language and ruling based on the 5th Amendment. So now, the ideological/libertarian conservatives will have to reject the state's rights arguments that they have espoused for everything else under the sun if they want to oopose this ruling. This far from judicial activism. The was a conservative judicial ruling by legal standards. I would like to see traditional state's rights jurist and strict constructionists (like Scalia, and Thomas) come up with a way to overturn this. To do so they would have to completely turn their stated judicial philosophy upside down.

    Posted by: swellster | Jul 9, 2010 1:06:02 PM

  18. Lafferty's statement just shows how morally and intellectually bankrupt the anti-marriage equality side is. She doesn't want to follow the lead of the "lowest common denominator", Massachusetts, on issues of marriage? By what measure is MA the lowest common denominator on marriage? They have BY FAR the LOWEST divorce rate in the entire country. So please Ms. Lafferty, tell us what criteria YOU use to determine the highest standards of marriage?

    I'd like to point out that EVERY SINGLE ONE of the states with the highest divorce rates have anti-gay marriage amendments and nine of the top ten are in the Bible belt.

    Eight of the top ten lowest divorce rates have either marriage equality or civil unions. NONE have anti-gay marriage amendments.

    Do we REALLY want to look to the likes of Lafferty for direction on marriage? Her extreme hatred of gays, learned from her raging homophobe father Lou Sheldon, leaves her completely unable to view the world objectively.

    Posted by: TampaZeke | Jul 9, 2010 1:08:07 PM

  19. @Anon: no, it's not binding outside of Massachusetts. You're simply wrong.

    @Gaylib: Look, I'm not making the decision about whether it will be appealed or not. I'm just saying that for this to have the impact we really want it to have-- for it to effectively overturn DOMA-- it *must* be appealed. Otherwise, we're just going to have ongoing lawsuit after lawsuit, unless Congress overturns the law themselves, which isn't likely to happen any time soon given the utter lack of political resolve on LGBT issues Dems are showing.

    I feel for the plaintiffs, but if they don't think this will get appealed, they're living in a fantasy world.

    I couldn't possibly file a suit myself, as I live in a state where same sex marriage isn't allowed. But if I did, I would fully expect it to be appealed all the way to the top.

    All the sympathy in the world to the plaintiffs, but they must have entered this with their eyes wide open to the likelihood of appeal to the Supreme Court. Either that, or they're terribly naive *and* have a lawyer who kept them woefully under-informed.

    But seriously, stop treating me like I somehow want these plaintiffs to suffer. I'm merely delineating the realities of this ruling: it currently has limited scope and power, and will not change practices in states outside of Massachusetts.

    Posted by: Dan E | Jul 9, 2010 1:10:30 PM

  20. I laughed out loud when I read that quotation about Massachusetts yesterday. So absurd.

    The ruling does not apply nationwide, so I wouldn't be planning a sudden move to Utah, GayLib.

    Posted by: Paul R | Jul 9, 2010 1:11:52 PM

  21. "... lowest common denominator states, like Massachusetts"?

    Like, um, with cities like Boston, which became known as the "Cradle of Liberty" for the agitation there that led to the American Revolution and the independence of the United States from Great Britain? The state that was also a center of the temperance movement and abolitionist activity before the American Civil War? The place where they held that goddamned Tea Party Andrea Lafferty and her ilk like to claim they take their inspiration from?

    That "lowest common denominator state"? Hell, I'm from California, and even I know that you don't fuck with MA.

    Posted by: Anon | Jul 9, 2010 1:16:07 PM

  22. you missed my point entirely Paul. even if the ruling applies only to Mass, then why can I not just go marry there and carry my federally recognized marriage back to some cesspool like Utah? If they don't want to recongize it, yeah that sucks, but it is nothing compared to the federal recognition by mass sanctioned marriage would provide.

    Posted by: gaylib | Jul 9, 2010 1:27:47 PM

  23. I'm no legal expert, but all the commentary I'm seeing says that this isn't the greatest of reasoned decisions and is likely to be overturned on appeal. Of course we all want equality, but I want it on a rock-solid legal foundation, not some fudging for the cause from a sympathetic judge. And anyway, this isn't the case we're all waiting for...

    Posted by: clint | Jul 9, 2010 1:39:01 PM

  24. It will and must be appealed and here is why - each and every "benefit" the rulings say the Gov't must extend to same-sex Mass. couples is something that the Gov't will have to "give" or stop "taking." Such as, allow same-sex spouse to join federal employee health plan, pension plan, etc.; allow same sex surviving spouse to start drawing deceased spouse's social security; pay the death benefit under social security to surviving spouse; allow state to not pay Medicare tax on imputed income of health benefits extended to same sex spouse of state employee, etc.

    IF the gov't were to actually start paying or giving these benefits to JUST Mass. same sex spouses, you would clearly have yet an even more obvious constitutional issue - what about CA, CT, IA, DC, etc? So, to clear all this up, DOJ will and must appeal. Like it or not.

    Posted by: Sean | Jul 9, 2010 2:02:01 PM

  25. DOMA is a weird law and this ruling reflects that weirdness. Obviously, if you can't get married in TX then you can't apply for Federal benefits, so the ruling only logically applies to states where you can get married, and fully married, which is probably only MA (IA too?) However, this is a ruling on a federal law, not a state law, under administrative procedure, so the ORDER from the court only applies to the federal bureaucracies that service MA and residents of MA, and it could even be narrower than that. These Federal bureaucracies will need to appeal in order to have a consistent SOP in all 50 states, and they certainly aren't going to listen to a single federal judge unless the AG directs them too, and he's going to take his advice from them, so an appeal is inevitable.

    Here is a lengthy exegesis:

    Posted by: anon | Jul 9, 2010 2:34:13 PM

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