Two small victories

Two small victories join the large one in Argentina.

1. A judge on the U. S. District Court for Massachusetts declared that the denial of federal rights and benefits to lawfully married Massachusetts couples under the Defense of Marriage Act (DOMA) is unconstitutional.

The laws in conflict are that it's legal to be married in MA; but a federal law (DOMA) says they can't have the same federal benefits as heterosexual couples (including survivors being able to collect social security benefits as do surviving spouses of heterosexual marriages). A suit in MA challenged this, and it seems clear on the face of it that legally married gay couples in those states are discriminated against by the federal law.

True, there can be legal arguments about which law trumps the other one. DOMA is a federal law and marriage is a state law. Some would say the federal law prevails. But the argument here is that one federal law violates another federal law -- equal protection.

Now a district court judge has said that at least this aspect of DOMA violates the Constitution. It will undoubtedly be appealed, but it is a major setback for Maggie Gallagher and her National Organization for Marriage. Maggie is sort of the Carrie Nation of the fight against gay rights. She doesn't go around taking an axe to saloons, but Maggie is fired up to stop gay marriage. She's got a national tour going right now, and they're headed for Atlanta. Her column used to be carried by the AJC. I always thought she was kind of silly, as well as being uninformed and prejudiced.

2. The recent law permitting same-sex marriage in the District of Columbia has been upheld by the DC Court of Appeals. It denied ballot access to a group that wanted to put same-sex marriage to a popular vote by defining marriage as between a man and a woman. Denial was based on the fact that it would "strip same-sex couples of the rights and responsibilities of marriages currently recognized in the District" and would "authorize discrimination" and violate the Human Rights Act.

This is similar to the situation in California but with the opposite outcome. The CA legislature and the DC council each legalized same-sex marriage. In CA, they did put a ballot initiative to overturn it, which was Proposition 8; and with huge money flowing in from out of state Catholic and Mormon religious groups, the initiative won. It was upheld by the CA Supreme Court in a case that essentially framed it as whether the people have a right to revoke a law by the ballot initiative process.

In DC, in contrast, the court has denied them similar ballot access, saying it would institute discrimination.

So in California, the state court said the people's vote trumps the prohibition of discrimination. In DC, their court said the anti-discrimination law trumps a voter initiative.

What a fascinating story this is going to be some day when someone writes the history of how attitudes and laws changed about gay marriage, and all the rocky bumps in the road to getting there.

Ralph