DOMA has faced its first court test and has been found constitutional by a federal district judge in Florida. Here’s the opinion.
This is good, kind of, because any signal that courts will uphold DOMA will take even more pressure off the Senate to pass the FMA. (One of the reasons Bush is going to stop pushing for the FMA right now is that most of the Senate thinks DOMA makes the FMA unnecessary.) If a court strikes down DOMA, the fundamentalist Christian right is going to have a massive spazz attack and we’ll be that much closer to a constitutional ban on gay marriage across the entire nation.
Even so, as I mention in the post linked above, the U.S. Supreme Court would probably uphold DOMA. So again, we seem to have reached a tentative equilibrium right now under which same-sex marriage is a state-by-state issue. In a couple of decades things will get better, because young people support gay marriage in much greater numbers than their elders, and people will see that just because there’s gay marriage in some states, doesn’t mean the world falls apart.
The problem here is that DOMA still affects residents in Massachusetts or any other state that might choose to legalize gay marriage.
While their state will recognize their marriage, the Federal government will not in issues like social security, name changes, passports, Federal taxes, and many other issues.
For example, the DOMA would force two gay married residents of MA to file their state tax forms as “married” and their Federal tax forms as “single.” So which are they?
And as gay marriage become increasingly legalized abroad (including in Canada, just a footstep away), this is going to become a more serious international issue. Especially given the global economy that we are moving toward.
I wouldn’t be surprised to see large multi-nationals steering clear of locating factories, offices, or installations of any kind in the US because of concerns of how their gay employees, married or not in their home countries, would be treated here.
And tourism? Would a gay couple want to visit a country where they would not be allowed to enter as a married couple? Why would the US want to shoot itself in the foot in this way regarding gay people and their families?
If we’re saying it’s a state issue, so be it. But the Federal government shouldn’t then negate those states’ rights with an over-reaching act like DOMA. And the same goes for a Constitutional amendment.
You can insist that a duck is a turkey if you want. That’s fine. But then you’re not allowed to take out your gun and hunt it during duck season.
I agree with you completely. DOMA sucks. But if it’s a choice between having same-sex marriage in some states or in no states, I’ll take the former. I was trying to describe things as I see them playing out.
We are fast becoming one of the most backward nations in the world.
“I wouldn’t be surprised to see large multi-nationals steering clear of locating factories, offices, or installations of any kind in the US because of concerns of how their gay employees, married or not in their home countries, would be treated here.”
Will the last person to leave the United States please turn out the light.
On the one hand I understand that to keep fighting the good fight (even though it seems we’re mildly sedated with both hands tied behind our backs), we have to address strategy issues around DOMA and the FMA and so forth. It’s the prudent thing to do, and it means we stay involved.
On the other hand, I think that the current power structure (and this includes Democrats, who have long since disavowed themselves of liberalism on the whole) will not tolerate fully-legalized, socially normative gay marriage. Ever. Not given the current climate.
If DOMA goes unchallenged, then gay marriage will remain illegal in most states. If gay marriage is legalized in more than, say, 10 states, then FMA will be pushed. If DOMA sees a credible court challenge, FMA will be pushed. FMA is the big stick that allows the current administration to speak so softly on gay marriage right now, which is a fantastic tactic since it lures in drunk sorority sisters like Andrew Sullivan, who just think Bush is like this totally awesome guy and like such a sweetheart and he just makes me feel so safe and warm and I know he’d never hurt me, ad nauseum.
So great — we get to keep working to minimize the damage. But this seems like disease management with a high mortality rate. Hope is not inspired.
the problem with even caring about this case is that the Ellis Rubin, the attorney representing the gay couple is a complete arrogant incompetent, with no background in civil rights, who clearly was over his head and clearly submitted a very poor argument and brief to the court.
read between the lines, and you realize that even if the judge was going to decide for the government, the judge called the government’s brief “well written”, whereas the plaintiff’s attorney used some gimmick of calling a set of civil rights cases the “dynamic dozen”. this, to an attorney, is an immediate sign that the court , regardless of the outcome, didn’t have a whole lot of respect for the attorney who showed up that day.
if you get down to the nitty-gritty of the opinion, you realize that the judge says the only way that the plaintiffs will win is if they can show there is no rational basis for the states governmental interest of DOMA in the 11th circuit: it encourages stable relationships where married men and women will have children. the goverment, under this standard, just has to sit quiet and let the plaintiffs prove this on their own. instead, as the court notes, this lawyer, as noted by this judge, only seemed to argue to just repeatedly argue that the case should be decided on something higher than rational basis.
if you are going to file these cases, you need to know what you are doing, and even if you lose you need to give yourself a fighting shot.
i have no sympathy for these lesbians in florida. in fact, they should lock themselves up in their home in florida and not be allowed the rights and benefits the commonwealth of massachusetts tried to give them because they only created a setback by going forward with this stupid case with a stupid lawyer. had they spoken with any gay civil rights group with some degree of professionalism, they would have been told “um, you are hurting us, please dont do it”
the lesson that needs to be taken from this case is that gay people should stop doing stupid things like going to court with bad cases and screaming about injustice without getting many many opinions from lawyers who might actually know what they are doing.
Like “D” (and it’s ok, D, you can start referring to yourself as David again :) ), I’m pissed at the couple for bringing this case in the first place. With gay rights litigation, we have to be very careful that we’re using only the best test cases, and that the lawyers know what they’re doing. (Though I haven’t actually read the decision yet.)
John, there is hope. Again, things are moving in our direction. It will just take time, unfortunately. I see this not as a compromise of principles but as a tactical decision, a realization that things could backfire. They’re hanging the FMA over our head like a goddamn sword of Damocles. But it won’t always be this way.
For what it’s worth, I work at a national gay civil rights nonprofit. Ellis Rubin was approached by several such organizations and asked to PLEASE not file such a poorly-contructed federal challenge, and especially not in the very unfriendly district in which he filed it. Rubin wasn’t hearing any of it. The guy is a self-important nutjob, pure and simple. Back in the day, he represented Anita Bryant. Now he claims he’s had a change of heart. Frankly, I’m not so sure. His actions are so destructive to the true advance of LGBT equality that I can’t help but wonder if this is all a clever attempt to sabotage all the hard work the national LGBT legal groups have been doing towards securing marriage for same-sex couples.
There are several other equally ill-advised federal DOMA challenges in the early stages right now. In many of them, the national groups have practically begged these people not to file their suits. This isn’t the time for such challenges, and if one of them makes it up to the Supreme Court it will cause a serious setback. It took 17 years to get Bowers v. Hardwick overturned, after all.
And in the meantime, Ellis Rubin is vowing that he’ll appeal.
Thanks for your perspective, Chris. I hadn’t realized what an ass the guy was. And Google has led me to this, which basically says what you say.