"Irrational Prejudice"

I’m on my way out of town right now, but a pretty huge development occurred yesterday that really needs mentioning before I go. In two decisions yesterday,  Commonwealth of Massachusetts v. HHS and Gill v. Office of Personnel Management, U.S. District Judge Joseph Tauro held section 3 of the Defense of Mariage Act (DOMA) unconstitutional.

The Defense of Marriage Act, which was passed back in the ’90s in a cynical play against a weakened President Clinton when same-sex marriage was barely on the horizon, prohibits the federal government from recognizing either state-sanctioned or non-state-sanctioned same-sex marriages and protects states from recognizing those performed in other states.

However, several states now fully recognize same-sex marriage, and it’s come to the fore whether this law is in fact constitutional. See, it is traditionally recognized that the constitution gives states the power to define and regulate marriage. Assuming no legitimate government interest in regulating such marriages, DOMA, then, would be an affront to the constitution. And that’s basically how Judge Tauro held in the two decisions. What’s spectacular is the particular language Tauro used in Gill (emphasis mine):

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. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals.  To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning.  And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

Sadly, I don’t have the time to go deeper in to the decisions, but Constitutional Law Prof Blog does a pretty good job. The big question now is whether the administration will appeal the ruling, and whether other district courts will bring similar cases, as Vermont, Connecticut and Iowa (et al?) are not affected by this ruling because they are not in the same federal court district.

I guess here is where I note that still-Attorney General Martha Coakley argued for Massachusetts. Wonder if this case will help progressives forgive her for such a terrible campaign last year.


One thought on “"Irrational Prejudice"

  1. Seems like this puts the Obama administration in an interesting position– would they really want to appeal this decision? More good analysis of the decision over at Slate (http://www.slate.com/id/2260039/), where Linda Hershman also points out the fun fact that Judge Tauro is a Nixon appointee.

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