by Eric Rader
Contact President Obama and your members of Congress to urge quick repeal of DOMA:
President Obama: http://www.whitehouse.gov/contact
Find your House member: http://www.house.gov/
Sen. Carl Levin: http://levin.senate.gov/contact/
Sen. Debbie Stabenow: http://stabenow.senate.gov/email.cfm
Argentina is the latest country to grant equal marriage rights to same-sex couples, an issue that is far from settled in the United States. However, there are some hopeful signs of progress on gay marriage in this country.
Just two weeks ago, a federal district court in Massachusetts struck down the federal Defense of Marriage Act, a law that prevents the federal government from recognizing same-sex marriages or civil unions, thus denying citizens the right to various legal benefits typically given to married straight couples.
The Massachusetts court dealt with two separate cases involving DOMA. In one, the court ruled that DOMA violates the 10th Amendment reserved powers clause in the Constitution because it infringes on the right of states to pass laws on marriage. In a separate case, the court ruled that DOMA treats gay and straight couples differently, thus depriving same-sex couples of their 14th Amendment right to equal protection of the laws.
The Massachusetts decisions apply only in that state, but they may eventually be appealed to the U.S. Supreme Court.
While it is easy for LGBT people to agree with the results of these two cases, there are some questions about the 10th Amendment reasoning in the first case.
Since Massachusetts allows same-sex couples to marry, the court declared that DOMA infringes on the legal rights of the states, since a state could lose federal money if it allows same-sex marriage. This reasoning is often used by opponents of federal civil rights and progressive legislation to attempt to strike down laws that they believe are too intrusive in the affairs of the states.
It is clear that DOMA is wrong and needs to be struck down or repealed. However, there are often good reasons for the federal government to pass laws that apply nationwide, and such statutes could be undermined by the reasoning used in the first of the two Massachusetts cases.
The federal court's equal protection reasoning in the second case is more solid, and would be a preferable basis for guaranteeing equal marriage (and other) rights to all LGBT people. DOMA clearly creates two classes of American citizens – straight and gay – by extending federal protection to the first group while denying it to the second.
The court used the rational-basis test for equal protection in this case, basically ruling that the federal government has no legitimate reason for treating gay couples differently from straight couples. Though the Massachusetts court did not give protected legal status to sexual orientation or gender identity in this case, a stricter level of review than the rational-basis test, the court's equal protection reasoning is still a positive step forward in the law.
As we digest the two Massachusetts cases, a federal judge in California is deliberating over a same-sex marriage case challenging the constitutionality of that state's discriminatory anti-gay marriage law, enacted by the voters in 2008.
The tone of the proceedings in that case would seem to indicate a favorable result for equal marriage rights when the final decision is handed down. However, it is guaranteed that whichever side loses in California will appeal up the federal judicial chain, very likely sending this case to the U.S. Supreme Court.
The fate of same-sex marriage before the Supreme Court is very unclear. The court would likely be divided on this issue, with Justice Anthony Kennedy being the likely decisive vote on this issue. Justice Kennedy is generally considered to be more conservative on most issues, but has stood up for LGBT equality in past cases involving sexual orientation. Where Justice Kennedy might come down on the issue of marriage equality is anyone's guess. Elena Kagan, who will likely be confirmed to the Supreme Court this month, has not stated her opinion of DOMA, so it also unclear how she would vote if the Massachusetts cases make it to the high court.
These cases will not likely make it to the U.S. Supreme Court right away. It is important, however, for all of us to continue lobbying our elected officials to do that right thing on marriage equality. It's important to put pressure on Congress to repeal DOMA, negating the need for further legal action on that issue.
While it can sometimes seem that the struggle for equal rights is uphill, there is still hope. Argentina has now legalized same-sex marriage in our own hemisphere; it's time the United States followed suit.
