Judge rejects gay marriage curb

Ruling in Hub calls US law unconstitutional, infringing on state’s right

By Michael Levenson
Globe Staff / July 9, 2010

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A US district court judge in Boston yesterday declared unconstitutional a 1996 law that bars federal recognition of same-sex marriage.

Judge Joseph L. Tauro, ruling in two separate challenges to the Defense of Marriage Act, declared that the law “induces the Commonwealth to violate the equal protection rights of its citizens’’ and “plainly intrudes on a core area of state sovereignty, the ability to define the marital status of its citizens.’’

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,’’ Tauro wrote.

Massachusetts Attorney General Martha Coakley, who brought one of the two challenges, said the decisions would apply only to the approximately 16,000 same-sex couples who have married in Massachusetts since gay marriage became legal here in 2004. They will now become eligible for the same federal benefits extended to married heterosexuals, she said.

“Judge Tauro’s decision does not technically apply to other states,’’ Coakley said. “It doesn’t change anything in terms of how they treat marriage or how they’re treated by the federal government.’’

But opponents as well as proponents of same-sex marriage predicted that the Obama administration will appeal the rulings to the US Court of Appeals for the First Circuit in Boston and that the constitutionality of the law will be decided by the US Supreme Court. During an appeal, it is likely that the law would remain in effect, lawyers said.

The law was defended in court by lawyers from the US Justice Department, even though President Obama supports repealing the law and has called it discriminatory.

In a hearing before Tauro in May, a Justice Department lawyer argued that Congress and President Clinton, who signed the law, had a legitimate interest in preserving marriage as a heterosexual institution.

Yesterday, a Justice Department spokeswoman, Tracy Schmaler, declined to comment on Tauro’s decision, saying only, “We’re reviewing the decision.’’

Opponents of same-sex marriage condemned Tauro’s ruling and predicted it will be overturned on appeal.

“The fact that the judge could, with a straight face, conclude that after several millennia there is no rational reason why Congress might want to define marriage as one man and one woman, even though it has existed that way for thousands of years, is irrational,’’ said Bruce Hausknecht, judicial analyst for CitizenLink, the political arm of the group Focus on the Family.

Kris Mineau, president of the Massachusetts Family Institute, called Tauro’s decision “another blatant example of a judge playing legislator.’’

“We believe it’s an egregious decision by obviously an activist judge, and it runs counter to previous federal decisions in other districts,’’ he said. “The federal government should have the right to determine [who receives federal] benefits.’’

Tom McClusky, senior vice president of the conservative Family Research Council, argued that Tauro’s decision “results from the deliberately weak legal defense of DOMA that was mounted on behalf of the government by the Obama administration, which has called for repeal of the law.’’

Gay-rights activists cheered the ruling, saying it affirms that same-sex couples are entitled to the same federal spousal benefits and protections as other married couples.

Gay and Lesbian Advocates and Defenders, which brought one of the challenges on behalf of seven married same-sex couples and three individuals whose same-sex spouses have died, argued in its lawsuit that the law denied married gay people their constitutional right to equal protection in the form of federal benefits.

“We made, really, a very simple claim, that DOMA violates their equal protection rights,’’ said Mary L. Bonauto, civil rights project director at GLAD, speaking in a conference call with reporters yesterday. “The Constitution requires the federal government to treat identically- or even similarly-situated people similarly, and DOMA essentially took just this one small class of married couples and denied them protections across the board.’’

One of the plaintiffs was Nancy Gill, a 22-year employee of the US Postal Service who could not cover her spouse, Marcelle Letourneau, on her family health and vision insurance plans, forcing the couple to pay more for insurance.

Gill said she heard about the decision yesterday as she was making dinner and let out an exuberant “woo-hoo!’’

“I am so happy I can’t even put it into words,’’ she said.

Governor Deval Patrick said those who challenged the law “clearly made a compelling and effective case against discrimination and, in the process, helped to guarantee that all of our citizens have access to the same protections and benefits.’’

“This ruling is a victory for equal rights and affirms the hard work we have done over the years to ensure that the citizens of our Commonwealth can marry anyone they love,’’ he said in a statement.

Tauro drew on history in his ruling, writing that states have set their own marriage laws since before the American Revolution and that those laws were considered “such an essential element of state power’’ that the subject was not even broached at the time of the framing of the Constitution. Tauro wrote that, for many years, laws barring interracial marriage were at least as contentious as the current battle over gay marriage.

“But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states,’’ Tauro wrote.

“That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.’’

Tauro also rejected one of the primary arguments for the federal marriage law, writing that “denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.’’

Lisa Wangsness of the Globe staff contributed to this report. Michael Levenson can be reached at

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