About 150 years ago, this country went to war with itself over the right of the federal government to impose laws and restrictions on the states. The most celebrated result of our Civil War was the end of institutional slavery, opening the doors for equal civil rights of all men (which were allegedly recognized in 1776). So it is somewhat of an irony that the most recent triumph for minority rights - the (at least temporary) striking down of a key section of the federal Defense of Marriage Act - was based on the proposition that the feds can not simply work their will on the states.
The old south Confederacy needed slaves to ensure that King Cotton kept their economy going, and chose succession rather than knuckle under to Washington. In a case of might truly making right, the Union enforced the Constitution with an overwhelming army, and re-established the federal government's supremacy.
We fight our battles somewhat differently today. No sense in wasting another 625,000 or so citizens.
Massachusetts has permitted same-sex marriages since 2004, but DOMA barred federal recognition of those nuptials, including social security benefits, joint income tax filing, immigration (sponsoring a spouse), family medical leave, veterans' family burials, housing, and US government programs and benefits to employees and retirees.
Earlier this month, ruling on separate cases brought by the Commonwealth of Massachusetts, and married gay and lesbian couples, United States District Court Judge Joseph L. Tauro, sitting in Boston, determined that Section 3 of DOMA violates both the 10th and 14th Amendments to the US Constitution. The 10th decrees that powers not granted to the national government, nor prohibited to the states by the Constitution, are reserved to the states or the people. Because DOMA interferes with Massachusetts' right to define a marriage, it is an improper use of federal power.
The 14th, popularly known as the Equal Protection Clause, mandates that laws must apply equally to all. By denying benefits to participants in lawful same-sex marriages, DOMA improperly discriminates against them.
Tauro, who has served on the federal bench since his nomination by President Nixon in 1972, concluded that there was no "rational basis" for the ban, and that it forced Massachusetts to discriminate against a class of its own citizens. "This court is convinced that there exists no fairly conceivable set of facts that could ground a rational relationship between DOMA and a legitimate government objective."
The ruling currently applies only in Massachusetts. But New Hampshire, Vermont, Connecticut, Iowa, and Washington DC all allow same-sex marriages, and New York, Rhode Island, and Maryland recognize such marriages, but do not perform them. If Tauro's ruling stands, it will dramatically advance the civil rights of same-sex couples everywhere.
In addition to creating an apparent conflicting situation for States' Rights, Tauro's ruling has put both President Obama, and constitutional conservatives, in strange positions. Obama called for the repeal of DOMA during his 2008 campaign, but his Justice Department argued in favor of it before Tauro. The Department's attorney, Scott Simpson, admitted that the administration opposed the act, but stated that the feds still had to defend its constitutionality. Obama now must decide if they will appeal.
Meanwhile, conservatives like Tea Partiers, who oppose both federal involvement in local issues, and gay marriage, are stuck in a Catch-22. If they indeed want States' Rights, they get Massachusetts law, an eviscerated DOMA, and expanded rights for same-sex couples. Not exactly what they had in mind.
Judge Tauro may be a little ahead of the country's 2010 social conscience curve, and his ruling could be reversed by either the First Circuit Court of Appeals, or the more conservative US Supreme Court. But Tauro has made the road much easier for the plaintiffs. The feds would now have to show that there is a "rational basis" for treating same-sex marriages differently than heterosexual couples in a state that regards both equally, which, legally, will be difficult.
It is interesting to see how our view of States' Rights, and discrimination, has changed. When it came to determining how a state could define rights based on skin color, from the Civil War through the 1964 Civil Rights Act to the present day, the feds' decision has always been final. But when the discrimination has to do with the gender of a marriage partner, Washington (at least for now) gets no say at all.
Blame it on (or credit it to) the political and social scene of the times. What is the country ready for? What is the mood of society? What is "right" for today? Like the pop-rock lyrics of Ecclesiastes, "To everything there is a season". In terms of gay rights, Argentina (in spite of vigorous opposition from the Vatican) just joined the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, and Iceland in legalizing same-sex marriages. Many other countries have legislation pending, and/or honor those marriages.
The catalyst is often one forward-thinking person, a person in a position of influence. Abraham Lincoln and his Emancipation Proclamation. Early 1900's women's-rights reformer Margaret Sanger. John F. Kennedy's 1963 civil rights speech. And now, like it or not, Judge Joseph L. Tauro.