Boston Federal Appeals Court: Down with DOMA

On September 21, 1996, President Bill Clinton signed a law intending “to define and protect the institution of marriage.” The law, known as the Defense of Marriage Act (DOMA), received majority votes in both houses of the 104th Congress and contains two short sections detailing the federal government’s stance on the definition of marriage as well as marriage recognition among different states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. […] In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Amidst the heated 2000 election season, the Republican Party endorsed the law, declaring that “…’marriage’ [is] the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages.”  That year, the Democrats did not comment on DOMA, likely out of embarrassment that such a discriminatory bill passed under President Clinton.

In 2004, President George Bush announced his support for a constitutional amendment banning same-sex marriage. “Marriage,” Bush said, “cannot be severed from its cultural, religious, and natural roots without weakening the good influence of society.” He characterized the Massachusetts and California legislation supporting same-sex marriage as “creating confusion on an issue that requires clarity.” Changing the definition of ‘marriage’ in a few states, Bush argued, “could have serious consequences throughout the country.”

After 16 years of appeals, immigration cases, state referendums, support, regret, and debate, DOMA still feebly reigns supreme, though 6 states and the District of Columbia have passed legislation allowing the marriage of same-sex couples since then, beginning with Massachusetts in May 2004.

Thus far, the only “consequences” I’ve seen include all the couples in love that are now able to marry. In my home of Massachusetts, I’ve never thought twice about whether the gay kids at school will eventually get married and raise families; they will, I’m sure of it. Since middle school, I’ve followed the debates that have sprung up over same-sex marriage, from the passing of Prop 8 in California to President Obama’s recent endorsement of gay marriage. And you could try (and fail) to argue that those are among the “serious consequences” President Bush was talking about. But 50 years from now, any politician who now supports DOMA (if they’re still alive) will be fighting to prove to the public that they never discriminated against gay people, just like Ron Paul tried to tell everyone that he wasn’t a racist back in the day (too soon?).

I’m pretty sure the first person I knew to be gay was my 6th grade Social Studies teacher, Mr. Allsbrook. He was originally from North Carolina and had attended UNC; I’ll always remember us making fun of him when he called the ‘grill’ a ‘barbie’. Mr. Allsbrook led our middle school AIDS Walk team every year, and to this day is one of the best teachers I’ve had. He was a pillar of our community back in middle school, and I still remember what he taught us about the world we inhabit. It never occurred to me that Mr. Allsbrook should have more obstacles in life than anyone else. But the more I learned, the more I realized that my favorite 6th grade teacher was being denied basic rights. And, when Massachusetts legalized same-sex marriage that year, I wasn’t fully aware that, even if Mr. Allsbrook married, his union wouldn’t be recognized by any other state. And that was 8 years ago.

But today, a bit of that changed here in Massachusetts. This morning, a Boston federal appeals court declared DOMA unconstitutional.

Massachusetts Attorney General Martha Coakley cited a “consequence” of the ruling, but not the kind President Bush had in mind. In a statement, Coakley said, “Today’s landmark ruling makes clear once again that DOMA is a discriminatory law for which there is no justification. It is unconstitutional for the federal government to create a system of first- and second-class marriages, and it does harm to families in Massachusetts every day.”

Some proponents of Section 3 of DOMA (in which a same-sex marriage in one state does not have to be recognized by another state) argue that upholding traditional marriage is a 10th Amendment issue. In the final decision of the three-member panel, Appeals Court Judge Michael Boudin wryly agreed, writing, “…many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.”  Judge Boudin then sent a copy of the decision to Mitt Romney with the postscript: “You should see a doctor cuz you just got BURNED! (Good thing the state of Massachusetts has got you covered on health insurance.)”

Section 3 of DOMA is unconstitutional according to the Boston federal appeals court. If United States history has anything to prove, it’s that Massachusetts has been the first of many to instigate change in this country. This better be a sign, then, that other states will follow the course that Massachusetts has set out on, and just like Don’t Ask Don’t Tell and bans on interracial marriage, DOMA will be a thing of the past. So when Mr. Allsbrook gets married in Massachusetts, he and his husband should be able to move back to North Carolina as a married couple under the law, “consequences” be damned.

The Three Year Anniversary of Justice Sotomayor’s Nomination to the Court

Justice Sotomayor

Justice Sotomayor was nominated for the Court three years ago.

Three years ago today, President Obama nominated Judge Sonia Sotomayor to the Supreme Court.  The nomination was the President’s first Supreme Court appointment and marked the historic induction of the first Hispanic judge to the Court.  Sotomayor succeeded Justice David H. Souter, having announced his retirement earlier that year, and was sworn in by Chief Justice John G. Roberts, Jr., in August 2009.

On August 6, 2009, the Senate voted 68-31 in favor of the appointment of Judge Sotomayor: 31 Republican no votes to 57 Democrat, 2 Independent, and 9 Republican yes votes.  Republicans in the Senate displayed similar reasoning for voting against the new judge, generally disagreeing with, among other things, Justice Sotomayor’s prior judicial decisions, her interpretation of the Second Amendment, and her purported use of judicial activism to use her personal beliefs to mold the law.

Senator Jim DeMint (R – South Carolina) announced in a press release: “Unfortunately, Judge Sotomayor has not inspired confidence that she will consistently base her decisions on our Constitution and laws. For these reasons, I plan to oppose Judge Sotomayor’s nomination, because all Americans deserve fair and equal treatment based on the Constitution and laws as written.”  Senator David Vitter of Louisiana cited judicial activism in his decision, noting, “The Constitution is clear that Supreme Court justices must interpret the law and not legislate from the bench. I’m not certain that Judge Sotomayor will be able to refrain from legislating from the bench, and more important, I believe President Obama is counting on her to do so based on his own past statements in support of an activist judiciary.”

The Second Amendment debate surfaced in the opinion of many Republican Senators, including Senator Kay Bailey Hutchison of Texas, who in 2008 co-led an amicus curiae favoring a strict interpretation of the Second Amendment.  In July 2009, Senator Hutchison expressed her reservations about Judge Sotomayor’s Second Amendment views: “I remain concerned about [Sotomayor’s] views on the Second Amendment. I cannot reconcile her opinion that the Second Amendment is not an individual right protected from state infringement with the Supreme Court’s Heller decision.”

Since Justice Sotomayor’s confirmation by the Senate, she has served as the third female justice in the history of the court and is one of three women on the Roberts court today.  One of four left-leaning judges, Justice Sotomayor has maintained a voting record exemplifying her liberalism; for example, in such landmark cases as McDonald v. Chicago, Citizens United v. FEC, and Berghuis v. Thompkins, Justice Sotomayor voted in line with her liberal cohorts.  Justice Sotomayor notably authored the dissent opinion of the Court for the case of Berghuis v. Thompkins, which Justices Stevens, Ginsburg, and Breyer joined.

On this day in 2009, many liberal Obama supporters felt proud and hopeful that the conservative Court may soon shift toward progress instead of toward partisan decision-making and suffocatingly strict interpretations of the Constitution.  Today, with a court of five conservatives and four liberals, a major argument scheduled for June, and a presidential election in November, it’s harder to feel confident in the Supreme Court.  Gleaning from Justice Sotomayor’s comments during the healthcare hearings in late March, which by all means may have simply been her effort to play Devil’s advocate, I’m willing to predict that the justice will support the constitutionality of the Affordable Care Act.

“We get tax credits for having solar-powered homes,” Justice Sotomayor began, questioning a witness from Florida. “We get tax credits for using fuel-efficient cars. Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us?”  Later during the hearing, Justice Sotomayor argued, “There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life that some may rail against,” but a necessity nevertheless.

If Justice Sotomayor abides by her words at the debates, and stands by the man who nominated her for the Court, I think she will vote to uphold the current healthcare law next month.  In short, I’m not too worried about Justice Sotomayor’s inclinations toward the Affordable Care Act.  It’s the rest of the Court I’m worried about.

Obama gives the “I do” in support of gay marriage

President Obama announced earlier today on ABC that “same-sex couples should be able to get married.”  He described his changing views over the years as an “evolution,” citing the influence of First Lady Michelle Obama and his daughters Sasha and Malia, as well as gay members of the Armed Forces and his own staff.

I first heard of the President’s statement from three different news outlets as they notified me via my phone.  A few seconds later, I logged onto Facebook, where the first dozen posts on my news feed featured President Obama and his decision on same-sex marriage.  My first reaction to the whole thing was positive.  I felt, as did many liberals, that it was about time that our President take a solid stance on something as polarizing as gay marriage.  Everyone’s reactions seemed to overflow with emotions like happiness, relief, and gratefulness.

But after a few minutes, I was overcome with frustration.  Why had our President taken such a lame stance on gay rights?  Why has Obama taken such a lame stance on…everything?  For me, these past three and a half years under the Obama administration have been particularly unsatisfying as a Democrat, even more so as a liberal.  From trying unsuccessfully to “reach across the aisle” to Republicans, who weren’t willing to compromise in the slightest, to negotiating the renewal of the Bush tax cuts to the point of capitulation, President Obama hasn’t truly put his foot down on any major issue.  (The exception would be the Affordable Care Act…but with the number of concessions on the Democrats’ part, and the fact that most Republican congressmen have vowed to overturn it, it can’t quite be considered a pure win.)

This immediately reminded me of Season 1 of West Wing, in which the Bartlet administration remains frustratingly neutral on a number of issues which arise during President Bartlet’s first year in office.  In one of the last episodes of that season, Chief of Staff Leo McGarry stands up to the President, arguing that the White House has been too cautious and not aggressive enough with its agenda. After a bit of contentious dialogue, President Bartlet agrees, “This is more important than reelection. I want to speak now… Do you have a strategy for all of this?”  And McGarry replies: “I have the beginnings of one.” He scribbles something on a legal pad as he asserts, “We’re gonna try that for a little while.”  On the pad, McGarry’s written in all caps, LET BARTLET BE BARTLET.

The parallel is obvious.  If only Rahm Emanuel had pushed President Obama to embody his potential political strength back in 2009 by writing LET OBAMA BE OBAMA on a legal pad, our country would be a very different place today.  And clearly this is a political choice–it’s unlikely that President Obama has just decided to support gay marriage.  It was probably a conscious choice of the Administration to not let Obama say anything about it because it would’ve been too divisive of a move for a first-term president.  However, it’s unlikely that there are enough single-issue voters out there for whom gay marriage can make or break the deal.  Chances are, if someone is anti-same-sex marriage, they aren’t going to vote for Obama in November anyway.  What’s more, Obama’s official support of gay marriage will only make many members of the Democratic Party more comfortable because it shows that we have a president who is not as willing to bend to the demands of the other side so easily.  It’s a step in the right direction…or the left direction I suppose.

In my opinion, President Obama should have been more firm in his beliefs for the past three years instead of toeing the line and trying to appease members of the Republican Party, most of whom have not reciprocated his effort to compromise. Supporting gay marriage is an important step for this administration, but I feel that President Obama has a long way to go before he proves his strength in standing up for exactly what he believes, even if it angers the other side.  As Chief of Staff Leo McGarry once said: “Listen up.  Our ground game isn’t working… If we’re gonna walk into walls, I want us running into them full speed.”