Thursday, October 14, 2010

Why DoJ appealing the DOMA decision could be a GOOD thing

Lots of the gay press is upset that the DoJ is going to appeal the DOMA decision in Massachusetts. Let's review: two cases from the Bay State addressed the unequal treatment of legally married Massachusetts residents by the federal government. (The federal government considers legally married gay couples to be unmarried cohabiting couples and therefore ineligible for any federal benefits e.g., pensions, etc)

Judge Tauro found that the clause of DOMA that applies to federal recognition of such marriages to be unconstitutional. Basically he said that the US can't treat gay citizens married legally in their home state differently from their straight neighbors. Married is married.

But here's the rub. Right now, this ruling only applies to Massachusetts. It does not affect anyone else. Which is great, for the Massachusetts couples, but for this legally married lesbian Californian, doesn't change anything.

The only way this will affect anyone else is (you guessed it) the appeals process. If our side wins the next step, then it applies to all the states in the First District. I'm sure those married in New Hampshire and Vermont would appreciate that. And of course, if it goes further to the Supremes....

So rather than wring your hands that the DoJ appealed, consider that that's the ONLY way to take down this odious law nation-wide. More from this GLAD FAQ.

The legislative branch no longer participates in government. They exist only in a sound-bite campaign mode of obstructionism and grandstanding. We cannot expect them to do anything. THe only hope is the courts, because the judiciary appear to be the only branch of government that still functions.


NancyP said...

That was my thought as well.
The arguments that the DOJ can present are bound to be weak.

The only problem is that the SCOTUS is stacked against us. None of the conservatives stepped down, which means that Kennedy is once again the swing vote. It will take quite a while for the case to work its way upward, and I don't foresee Roberts, Scalia, Alito, or Thomas either stepping down or being carried out anytime soon.

IT said...

IT's not clear that Kagan will be a friend. Her first two votes, she went with the conservatives.

NancyP said...

No, I peg Kagan as competing with Kennedy for the swing spot.