Is the Federal Ban on Gay Marriage Unconstitutional?

In 1996 the Federal government passed something called the Defense of Marriage Act (DOMA), which, depending on where your views on the issue fall, is either one of the most important and morally necessary laws of the 20th century or one of the most repugnant and morally reprehensible ideas since the Jim Crow laws. I’m in the latter. The idea that we would push through an Act that explicitly defines marriage based on one Holy book and its over-zealous group of adherents (yes, I’m talking about the Bible and Christians) makes me sick to my stomach, and reminds me of the separate drinking fountains of the 50’s. Like, whites drink here, blacks over there. Now, it’s straight people get married, gay people get civil unions. What a bunch of crap.

Which is why I am infinitely encouraged to hear the Judge Joseph Tauro of Boston has ruled that the federal ban on same-sex marriage is unconstitutional- why? Because it interferes with the right of a state to define marriage. Now, this is the kind of debate that will go on forever- federal jurisdiction vs. states rights, but I think it may have legs. 

Massachusetts argues that DOMA denies benefits to same-sex couples in the state, which is true, because a same-sex couple cannot get the benefits other married couples can get. The state went further to say that this forces them to discriminate against their own citizens, which I have to raise a glass to whoever the lawyer was that made this happen- great, true, and convincing argument. And the judge agreed:

"The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid," said Tauro.

The Tenth Amendment of the U.S. Constitution reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This is one of those that should go to the states, although a federal overturn of DOMA would be absolutely ideal. It’s fascinating that Washington D.C. actually allows gay marriage, but the governing body of our country contained within the district remains terrified of the political fallout of dealing with the issue.

Read any employment statement and you know that the Federal government goes to great lengths to make sure that there is not discrimination based on anything, at least not in the legal jargon, when people are getting a job. Why, then, are we ok with blatant discrimination around homosexuality in the military and in the world of marriage?

Being gay is well accepted in many industries, all over television, and decades past the Stonewall Riots in New York City that gave voice to gay rights along with civil rights around the country. Somehow we have decided that it’s ok to discriminate based on sexual orientation, but not on skin color. That leaves us halfway there. I hope this decision in Massachusetts sparks more debate and sets the law right.

Photo Credit: Fibonacci Blue