Posted by Brad @ 12:08 pm on February 24th 2012

DOMA Going Down

I’ve long maintained the the final fight in the marriage equality is going to be DOMA. The fact of the matter is, laws banning same sex marriage are federally unconstitutional. I don’t mean that as a moral or political judgments, I just mean a clean, objective reading of the 5th and 14th amendments, the case law surrounding separate but equal constructs, and the lack of evidence that any court has found convincing, where it exists at all, of material, quantifiable, and trumping harm caused same sex marriage that might prove a basis for a rational state interest in its banning. At the end of the day – and again, I am putting all other considerations aside, including the preferrability of, say, state discretion – the legality of laws banning same sex marriage is less a gut call and more an arithmetic problem. And the equation for banning based on justifications that satisfy constitutional requirements just doesn’t solve. This applies to state laws that run counter to state constitutions, but it also applies to state constitutional amendments that run counter to the federal constitution, and federal laws that do the same. I just don’t believe there is a way for any state, be it Massachusetts or Oklahoma to be able to ban same sex marriage in a way that is constitutional. Again, all other considerations aside.

Yesterday, a federal court came down against DOMA (the authoring judge was appointed by Bush in 2002, btw).

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.

Thus begins the chain of events that will lead to DOMA’s being entirely overturned, in parallel with the continued flood of judicial findings on state levels relating to marriage equality.

It is worth noting that the Obama administrations DOJ has decided to not actively defend DOMA in court any more.

It is finally worth noting that this decision came down yesterday and I only found the news in the weeds of some blogs. As blank writes:

Ten years ago, a decision like this would have been an excuse for a wave of antigay referenda. This week, it did not even rate a mention on the New York Times‘ front page. I just can’t shake my head often enough. DOMA is coming down. Here’s the only question left: Three years? Five years?

I think we get too caught up in the trees. The forest here is actually that gay rights has been the biggest civil rights breakthrough in my lifetime. And it has also been one of the most mainstream, nonviolent, and peaceful civil rights watersheds in the history of oppressed minorities breaking through. We forget that sometimes, but most shut-out groups only win their freedom with a lot of fire and bloodshed. Gay equality has come relatively easily. Not that it’s been easy, or without fire and bloodshed. But I think we lose perspective sometimes, always assuming our fights are the fightiest fights in history. On the contrary, at least when it comes to demographic civil rights, I think the human race has gotten smart very quickly this last hundred years.

In other gay marriage news, Maryland passed a marriage equality law yesterday, again to no fanfare or hub-bub. It now goes to the Governor, who is likely to veto it because only referendums count as democratic, I guess.

And, CATO has produced a fantastic video making the constitutional case for gay marriage. Watch it – I honestly have a hard time even understanding how anyone could think otherwise (again, other considerations aside).

Anyway, I am very comfortable predicting gay marriage will be legal in every state within my lifetime. Probably within the next six to ten years.

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