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Defense of Marriage Act unconstitutional, federal appeals court declares
By Robert Barnes

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

A unanimous panel of the U.S. Court of Appeals for the First Circuit said the act, which was signed by President Clinton and denies federal economic and other benefits for married people from same-sex couples married in states where it is legal, could not be justified under current precedents that protect minorities and other groups from discrimination.

For 150 years, Circuit Judge Michael Boudin wrote, the “desire to maintain tradition would alone have been justification enough for almost any statute . . . . But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”

The Obama administration had decided not to defend the act, known as DOMA, because it had concluded that the law was unconstitutional. It was a step along the way in Obama’s “evolution” on same-sex unions. In May, the president said publicly that he supported same-sex marriage but that the issue should be left up to the states.

The judicial panel noted that most Americans live in states that have either passed laws or amended their constitutions to express, as DOMA does, that marriage is legal only if it’s between a man and a woman.

“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,” Boudin wrote. “Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

The opinion did not address whether other states may be forced to recognize same-sex marriages performed in states where they are legal. And the judges said the case did not call upon them to address whether there is a constitutional right to marriage that must be available to gay couples.

The case, Gill v. Office of Personnel Management, was brought by seven same-sex couples married in Massachusetts and three surviving spouses of such marriages who were denied federal benefits and recognition. The decision said there were about 100,000 couples who would be affected.

“We have done our best to discern the direction” of court precedents, the opinion said, “but only the Supreme Court can finally decide this unique case.”

© The Washington Post Company

onto the Supreme Court they will go to finally settle it.

Good to hear it, it's about time.

Any information on the gay divorce rate?

Quote from: BackinJax05 on June 01, 2012, 01:08:18 AM
Any information on the gay divorce rate?

Knock yourself out:  http://www.census.gov/compendia/statab/cats/births_deaths_marriages_divorces/marriages_and_divorces.html

http://andrewsullivan.thedailybeast.com/2012/04/why-do-lesbians-divorce-more-than-gay-men-.html (http://andrewsullivan.thedailybeast.com/2012/04/why-do-lesbians-divorce-more-than-gay-men-.html)

It's complicated to get good statistics on the gay divorce rate. Many sources on marriage don't distinguish between gay and straight marriage. Additionally, gay marriage hasn't existed for long enough to determine what the long term will look like. However, by most measures, it appears that the gay divorce rate is significantly lower than the general divorce rate.

A report from UCLA about six months ago found that the yearly divorce rate for gay couples is 1%, compared to 2% for straight couples. Here's (http://www.huffingtonpost.com/frederick-hertz/divorce-marriage-rates-fo_b_1085024.html) an article on it. For straight couples, the lifetime divorce rate is much higher (around 50%), so presumably over time the same will be true of gay couples, but by all indications it will likely be significantly lower.

Another Federal Judge Finds DOMA Marriage Definition Unconstitutional

Echoing several other recent court opinions, U.S. District Court Judge Barbara Jones today ruled that the Defense of Marriage Act's federal definition of marriage is unconstitutional insofar as it forced Edie Windsor to pay estate taxes after the death of her wife, Thea Spyer, that would not have been owed had she been married to a man.

In deciding that the statute is unconstitutional under the lowest level of judicial scrutiny -- rational basis -- Jones, a Clinton appointee, wrote:

Regardless whether a more "searching" form of rational basis scrutiny is required where a classification burdens homosexuals as a class and the states' prerogatives are concerned, at a minimum this court "must insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the equal protection analysis. Additionally, as has always been required under the rational basis test, irrespective of the context, the court must consider whether the government's asserted interests are legitimate. Pursuant to those established principles, and mindful of the Supreme Court's jurisprudential cues, the court finds that DOMA's section 3 does not pass constitutional muster.

The ruling in Windsor's case, which was filed in the Southern District of New York, comes less than a week after a three-judge panel of the U.S. Court of Appeals for the First Circuit unanimously found DOMA unconstitutional under a type of rational basis analysis, affirming a decision earlier reached on more expansive reasoning by U.S. District Court Judge Joseph Tauro.

In a statement reacting to the decision released by her lawyers at the ACLU, Windsor said, "Thea and I shared our lives together for 44 years, and I miss her each and every day. It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."

Other federal trial-court judges, in addition to Tauro and now Jones, also have found Section 3 of DOMA to be unconstitutional.

U.S. District Court Judge Jeffrey S. White in California reached the same conclusion earlier this year in a case slated for appeals arguments before the U.S. Court of Appeals for the Ninth Circuit in September. On May 24, U.S. District Court Judge Claudia Wilken reached a similar decision in the class-action lawsuit, finding that Section 3 of DOMA and a provision of tax law unconstitutionally limit same-sex couples and domestic partners from participating in the long-term care plan offered by the California Public Employees Retirement System, or CalPERS. Additionally, a federal bankruptcy judge in California -- supported by several others -- also found that DOMA was unconstitutional insofar as it barred married same-sex couples from filing joint bankruptcy returns, a decision that resulted in the federal government no longer contesting such joint bankruptcy petitions.

Windsor's case was one of two cited by Attorney General Eric Holder in his February 23, 2011, letter to House Speaker John Boehner detailing the administration's legal conclusion that Section 3 of DOMA is unconstitutional.

The House Bipartisan Legal Advisory Group, led by the House Republican leadership, opposed Windsor's lawsuit seeking repayment of the $350,000 estate tax bill that she paid following Spyer's death. BLAG has hired Paul Clement, the former solicitor general under President George W. Bush, to represent it in court. DOJ, meanwhile, supported Windsor's suit in court filings.

The ACLU and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP are representing Windsor.

Rep. Jerrold Nadler (D-N.Y.), the lead sponsor of the law to repeal DOMA -- the Respect for Marriage Act -- issued a statement celebrating the decision.

"I congratulate Edie for this first offering of justice after she has had to endure so much injustice," he said. "Both the Constitution and basic commonsense tell us that no reasonable law would deny Edie and Thea Spyer, her late fiancée of decades, the very same federal protections and responsibilities that every other committed American couple is afforded."

He also took a swipe at BLAG and Clement, saying, "I am again gratified that Paul Clement and Speaker Boehner's BLAG have been unable to defend a law that is so thoroughly indefensible."

An appeal of Windsor's case, if sought by BLAG, would be heard by the U.S. Court of Appeals for the Second Circuit.

http://www.metroweekly.com/poliglot/2012/06/another-federal-judge-finds-doma-marriage-definiti.html