Part of the vile DOMA is struck down in U.S. District Court in Massachusetts -- what does it mean?

"[T]his court is convinced that 'there exists no fairly conceivable set of facts that could ground a rational relationship' between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection."

-- U.S. District Court Judge Joseph Tauro

by Ken

As you've no doubt heard, Judge Tauro, who sits on the federal bench in the District of Massachusetts, delivered rulings in two cases in which he carved a serious chunk out of the dreadful -- and, as usual with right-wing legislative initiatives, grotesquely dishonestly named -- Defense of Marriage Act. In the two decisions the judge, a 1972 Nixon appointee, kicked the stuffing out of Section 3 of the act, which contains the ban on issuing federal benefits to unacceptable marriages, ruling basically that it unconstitutionally infringes on powers that belong to the states.

WHAT WAS DECIDED?

I was amazed at the speed with which my favorite legal eagle, Adam B, got his analysis up on HuffPost. First he explains the background of the two cases:

Since May 17, 2004, over 15,000 marriage licenses have been issued to same-sex couples in Massachusetts.

Nancy Gill and Marcelle LeTourneau, along with six other same-sex married couples in Massachusetts, filed suit in 2009, claiming that DOMA denied them certain federal marriage-based benefits that are available to similarly-situated heterosexual couples in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

Massachusetts has a variety of benefits it grants to its citizens -- among other things, there's a state-administered health insurance program (MassHealth). There are also a pair of veteran's cemeteries in Agawam and Wichendon which are available for qualified veterans -- but Massachusetts was told by the federal government that if the benefits of these programs were extended to same-sex spouses, millions of dollars in otherwise-available federal aid would stop.

So the Commonwealth of Massachusetts, through Attorney General Martha Coakley, also filed suit in 2009 against the United States Department of Human Services and other federal officials seeking to hold unconstitutional the Defense of Marriage Act on the grounds that DOMA intruded on areas of exclusive state authority, as well as the Spending Clause, by forcing the Commonwealth to engage in discrimination against its own citizens in order to receive and retain federal funds in connection with these programs.

Then he delivers the news:

In a pair of opinions issued this afternoon (Gill, Commonwealth), The Hon. Joseph L. Tauro agreed with Gill and the Commonwealth and held Section 3 of DOMA -- the part forbidding federal benefits to same-sex couples -- to be unconstitutional.

DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that "there exists no fairly conceivable set of facts that could ground a rational relationship" between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.

And why is DOMA lacking in rational basis? Judge Tauro -- who, by the way, has served on the federal bench since his nomination by President Nixon in 1972 -- cuts down the reasons:

This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA. Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it "prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure," when afforded equal recognition under federal law.

Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.

And, relying on the Moreno/City of Cleburne/Romer cases of which I'm a big fan:

[T]his court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex. And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. 

"For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."

And finally, Congress attempted to justify DOMA by asserting its interest in the preservation of scarce government resources. While this court recognizes that conserving the public fisc can be a legitimate government interest, "a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources." This court can discern no principled reason to cut government expenditures at the particular expense of Plaintiffs, apart from Congress’ desire to express its disapprobation of same-sex marriage.

Yes, but what about the wacky new reasons which the Obama DOJ offered to support DOMA?

In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the "status quo," pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of "marriage" and "spouse" under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits.

In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may constitutionally employ in the face of a changing socio-political landscape.

[T]his assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.

There can be no dispute that the subject of domestic relations is the exclusive province of the states. And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law. The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest.

By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process. Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law.

And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire. Though this court knows of no other state in the country that would sanction such a marriage, the federal government recognizes it as valid simply because New Hampshire has declared it to be so.

And, so, in conclusion:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, "there is no reason to believe that the disadvantaged class is different, in relevant respects" from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

I pray that the Attorney General recognizes that DOMA is indefensible, and declines to appeal.

WHAT HAPPENS NEXT?

With this last bit Adam B has his tongue firmly planted in cheek. He knows it's all but automatic that the Justice Dept. appeal. It's generally considered its obligation to defend challenged federal laws, and the Obama DoJ has not only done so where DOMA (and other right-wing horrors) is concerned but has supported it with a creepy zealousness that a lot of us have found, well, vile and disgraceful. (It's one thing to do your legal duty. It's another to provide appeals courts with an ideological fervor that provides appellate jurisdictions with all the language they need for out-of-hand dismissal of any challenge to the act.)

Now we have to be careful about what Judge Tauro ruled. Unlike the head on Adam B's post, "Federal Court Holds DOMA Unconstitutional." Um, no, not really. Again, it was only Section 3 of the dreadful DOMA that was called into into play by the Massachusetts cases.

Also, there is disagreement as to the ruling's prospects in the inevitable appeal. I've seen commentators argue that Judge Tauro's ruling is so law-specific that it seems impervious to challenge, whereas Jack Balkin, who includes in the title of his post "Be Careful What You Wish For Department," is convinced that both decisions will be overturned, and he's not all that regretful since he considers the legal reasoning basically the kind of "Tenther" constitutional assault we're so intent on keeping the Right from unleashing.

WHY IS THE RULING SO NARROW?

As a matter of fact, the petitioner in one of the two cases, Gay & Lesbian Advocates & Defenders (GLAD), intentionally crafted its complaint as narrowly as possible. GLAD has a splendid webpage detailing the background, strategy, and precise scope of the suit.

Here is perhaps the most immediately pertinent chunk:

What This Case Does and Does Not Do.

This case only addresses DOMA Section 3. It seeks to end discrimination by the federal government against people who are validly married and ensure they are not denied rights, protections and responsibilities afforded to other married persons.

If GLAD’s lawsuit is successful, then DOMA Section 3 could not be applied to federal tax laws, Social Security laws, benefits programs for federal employees, retirees and their surviving spouses, and the regulations and practices governing issuance of passports in states where people can marry. It would establish an important principle that could be used in other cases and in advocating repeal.

If a non-resident couple were married in Massachusetts or Connecticut and their home state did not recognize their marriage, then, as a general matter, a favorable result in this case will not allow them to seek federal legal protections.

By design, this lawsuit is limited to particular programs and does not seek to invalidate DOMA Section 3 in its entirety. The U.S. Supreme Court has made clear that it strongly disfavors attempts to strike a federal law in its entirety and prefers to evaluate cases with concrete examples of how a federal law as applied violates constitutional rights.

This case is only about the relationship between the federal government and a class of people who are married by their states. While the federal government must follow state determinations of marital status, states remain free to establish their own marriage policies and recognition laws. This lawsuit has no impact on any state’s marriage licensing or recognition laws – whether those laws allow same-sex couples to marry or not.

This is not a case seeking a federal constitutional right to marry that would override any state’s marriage law or amendment.

This case does not address Section 2 of DOMA and its “permission slip” to states to establish public policies regarding marriages of same-sex couples.

In short, if DOMA Section 3 is declared unconstitutional in GLAD’s lawsuit, no state would, as a result, be required to issue marriage licenses to same-sex couples and no state would be required to recognize and respect a Massachusetts marriage of a same-sex couple.

To be continued, no doubt.

#

Minnesota GOP finds a guv candidate modeled, not on Virginia's Gov. "Slick Bob" McDonnell, but on AG Ken Cuckoonuts

MN's certified-Tenther GOP guv candidate Tom Emmer

by Ken

Still searching for a link to that Rachel Maddow Show clip with Ira Furman doing his impromptu Mr. Science-style demonstration of the totally counterintuitive basic principle of "lift" that makes flight possible, I was wandering around the Maddow blog looking for the entrance to the attic when I stumbled across a blogpost from this afternoon by Laura Conaway which seems a logical sequel to my post earlier today about Virginia's uneasy wingnut tandem of Gov. "Slick Bob" McDonnell and AG Ken Cuckoonuts:

Minnesota GOP picks really wacky guy for governor -- no federal laws?

By Laura Conaway - Mon May 3, 2010 2:36 PM EDT

Holy smokes -- the Minnesota Republican Party has picked a tenther candidate for governor, State Rep. Tom Emmer, who makes Virginia's Ken Cuccinelli look like Eleanor Roosevelt or something. From TPM:

Emmer was first elected to the Minnesota House of Representatives in 2004. He is a co-author of a proposed state constitutional amendment that would, to borrow the words of Nigel Tufnel, turn the Tenth Amendment all the way up to 11, with Minnesota preemptively nullifying all federal laws unless a state supermajority consents to them. Here is the key quote from the amendment's text: "A federal law does not apply in Minnesota unless that law is approved by a two-thirds vote of the members of each house of the legislature and is signed by the governor. Before voting to approve a federal law, each legislator must individually affirm that the legislator has read the federal law and understands it."

The best part? Emmer got the blessing of Gov. Tim Pawlenty, who's aiming at the Republican presidential nomination in 2012.

Here's more from Eric Kleefeld's TPM post (which includes video clips!):

State Rep. Tom Emmer picked up the official Republican endorsement at the party's convention this weekend, and he also walked away with the backing of Pawlenty himself. "We don't have any doubt about what Tom Emmer stands for or what his values are," Pawlenty said at the convention. "He is strong. He is steadfast. He is clear. ... He is going to be the next governor of the state of Minnesota." Emmer also has the support of Sarah Palin, who praised him just before the convention got underway as a "hockey dad" who once played for the University of Alaska-Fairbanks -- a move that may have been a tipping point, according to the Star-Tribune.

Emmer was first elected to the Minnesota House of Representatives in 2004. Just this past March, he was a co-author of a proposed state constitutional amendment that would, to borrow the words of Nigel Tufnel, turn the Tenth Amendment all the way up to 11, with Minnesota preemptively nullifying all federal laws unless a state supermajority consents to them. Here is the key quote from the amendment's text: "A federal law does not apply in Minnesota unless that law is approved by a two-thirds vote of the members of each house of the legislature and is signed by the governor. Before voting to approve a federal law, each legislator must individually affirm that the legislator has read the federal law and understands it."

Last September, Emmer proposed another state constitutional amendment that would prohibit any individual or employer mandate to carry health insurance in the state of Minnesota, if one were to eventually pass at the federal or state level (as it did eventually pass at the federal level).

* * *

"There have been some questions about the Tenth Amendment," Emmer acknowledged, "and we all know that states have the rights to assert their Tenth Amendment powers and affirm those rights in the state constitution." As for the skeptics, Emmer said that his amendment would protect Minnesotans from federal encroachment on health care, in the same way that the First and Second Amendments have protected freedom for the last 220 years."

* * *

In another amusing Emmer moment, a year ago he tore into a Democratic state representative for wanting to copy elements of environmental science and regulations from California and Europe, which the Dem in question felt were superior to the status quo in Washington or Minnesota. To Emmer, this was an example of liberals hating America:

"Oh oh, hey by the way, we also apparently have to look at this country and be extremely critical of the United States of America, and start kissing the rear end of the people on the other side of the Atlantic," Emmer said mockingly. "That's ridiculous, and I'm sick and tired of hearing it. I'm hearing it out of Washington, now I'm hearing it here. This is a great country, Rep. Knuth."

Well done, Minnesota GOP! Looks like you've found a winner! And we can just feel the excitement oozing out of Governor Tim's pores! (That's a joke. As far as I know, nothing has ever been known to ooze out of the governor except his unaccountable personal ambition -- unaccountable in that he's such a total nonentity.)

#

This Time I Really, Really, Really Won't Get Fooled Again-- Sorry It Had To Happen On Your Watch, Mr. Obama

In 1992 the Democratic presidential primary field didn't excite me much. I thought Tom Harkin, Jerry Brown and Paul Tsongas were all ok. Basically, as long as it wasn't one of the corrupt DLC reactionaries-- Bill Clinton or Bob Kerrey-- I was ok. I was disappointed that my fellow Democrats had put me into that same ole uncomfortable position of picking the lesser of two evils-- and Clinton was certainly far lesser an evil than George H.W. Bush. I dutifully went to the polls and voted for someone I knew would be another crappy president. When the far right set about to destroy his presidency I managed to work myself up and forget how truly awful he was and see as much good in him as I could.

The far right is doing that again, quite predictably. And Obama is as crappy a vison-free, weak centrist and corporate shill as Clinton ever was. Let them tear him apart. I'm done with these assholes.

Today I spent a lot of time in my car. I could really feel why suburban commuters get angry at life and, encouraged by Hate Talk Radio, wind up consistently voting against their own families' interests. Commuting is a real hell on earth. As I sat still on the 710 Freeway from Compton I strained to listen to NPR over the din of noisy trucks belching cancer-causing black death into the air. I caught a trashy woman who sounded perfect for a KKK-woman's auxiliary group explaining why she was keeping little Johnny away from school next week when Obama plans to address the nation's children. She acknowledged that even if he won't be overtly brainwashing the children with liberalism, there would be subliminal messages. She really used that phrase. I'm positive the idea of an African-American in the White House is enough of a subliminal message to drive her insane. But screw it; he can fight his own battles. That's what he pays Rahm Emanuel to do-- the same Rahm Emanuel who Bill Clinton used to violently shove NAFTA down enough Democrats' throats so that a hated Republican bill that didn't pass under Bush, was one of Clinton's big first term "accomplishments."

Yesterday Greg Sargent pointed out that the White House polling memo seemed to go out of its way to omit the fact that Mr. Obama's constituents support a public option, even if his campaign donors don't. Between Afghanistan and his sellout on health care, all the hope for change will be dead by next week.

[V]irtually every poll cited in this memo also found strong support for the inclusion of a public plan.

* The memo cited a CBS poll from September 1st, saying it found strong support for action. What does it say on the public plan? Sixty percent support, 34% oppose.

* The memo cited a CNN poll done through August 31st, saying it found deep public dismay with the system. What does it say on the public plan? Fifty-five percent support, 41% oppose.

* The memo cited a Kaiser poll from August 11th, saying it found overwhelming support for consumer protections. What does it say on the public plan? Fifty nine percent support, 38% oppose.

Needless to say, they certainly didn't mention yesterday's Daily Kos poll, which shows strong support for the public option in every region of the country but the backward former slave-holding states of the Old Confederacy-- and there is even a plurality of support there (47 % favor, 46 oppose)! Nationally, 81% of Democrats and 57% of Independents (and 26% of Republicans) favor a public option. Isn't that bipartisan enough for Mr. Obama. Or by bipartisan does he only count crooked Inside the Beltway politicians who have accepted gigantic bribes from Insurance companies and the Medical-Industrial Complex? People don't count? Then don't count on people. And see how much leeway progressives-- inside and outside Capitol Hill-- are going to give you on your disgraceful policies in Afghanistan going forward. Let's see how much you can depend on the alliance between Republicans and Blue Dogs Rahm is working with. Wednesday will be the first day of the rest of Mr. Obama's political life.