"A thumb on the scales"
June 1, 2012By Dick Polman
Good news: The federal Defense of Marriage Act - the anti-gay Clinton-era law that defined marriage as a union of man and woman - seems destined to become as obsolete as the videocassette.
DOMA was dealt a major blow yesterday, when, for the first time ever, a federal appeals court struck it down as unconstitutional. The vote was 3-0, and the judge who wrote the ruling is a Republican appointee. He was joined in that ruling by another Republican appointee. The ruling upheld a lower federal court decision that had declared DOMA to be unconstitutional; that decision, back in 2010, was written by a Republican appointee.
It's refreshing whenever Republican judges ignore social conservative dogma (i.e., that gays are lesser human beings) and focus instead on their "states' rights" principles. Federal appeals judge Michael Boudin, a George H. W. Bush appointee, did so yesterday. He identified the '96 law's fatal flaw:
States have long established their own marriage rules, their own criteria for granting civil licenses - but DOMA trampled on those states' rights, by setting a federal marriage standard and penalizing the gay citizens who violated that federal standard. Legally-married people are entitled to more than 1,110 federal perks, including Social Security survivor benefits, guaranteed family and medical leaves, and the right to file joint tax returns - but DOMA decreed that legally-married gays were not entitled to any of those perks.
Judge Boudin wrote yesterday that it's unconstitutional to deny equal protection to legally-married gays who live in states where gay marriage is permitted. A wise ruling indeed, because, after all, is it not a Republican principle that power should flow to the states and not to Washington? One virtue of states' rights, Boudin wrote, "is that it permits diversity of governance based on local choice" - and this principle "applies as well to the states that have chosen to legalize same-sex marriage."
Another key passage: "DOMA intrudes extensively into the realm that has from the start of the nation been primarily confined to state regulation - domestic relations and the definition and incidents of lawful marriage - which is a leading instance of the states' exercise of their broad police-power authority over morality and culture...No precedent exists for DOMA's sweeping general 'federal' definition of marriage for all federal statutes and programs."
It was unconstitutional, he wrote, for Congress "to put a thumb on the scales" and favor the states that bar gay marriage. Or, to put it in more colloquial terms, Washington should butt out of the marriage business, and refrain from dictating a one-size-fits-all concept of morality.
Social conservatives, who hate "big government" unless it seeks to intrude in the bedroom, can't be happy that so many Republican appointees have taken a sledgehammer to DOMA. But it's about time. The law was rushed to passage during an election year - Boudin mentioned in his ruling that no extensive hearings were ever conducted - because Republicans wanted to woo the right-wing base and Democrats were afraid they'd lose politically if they defended gays. President Clinton signed the bill and even bragged about it in campaign ads on Christian radio stations.
How far we've come since. Naturally, the Supreme Court (specifically, swing vote Anthony Kennedy) will have the final say, but the trend line seems clear. Despite the last-ditch efforts of House Speaker John Boehner to hire attorneys to defend DOMA in court (at a cost to taxpayers of $1.5 million), saying no to DOMA on states' rights grounds has become a very Republican position.
So John Edwards was found not guilty yesterday. Shocking! That federal trial was ill-conceived from the start. I dearly hope that my newspaper column today, analyzing the verdict, will be the absolutely final thing I will ever feel compelled to write about America's Cad.
Follow me on Twitter, @dickpolman1