Judge Rules DOMA Unconstitutional, Tea Partiers Largely Pro-Gay-Marriage, But Don’t Get Too Excited About It

Yesterday, a federal judge in Massachusetts ruled that the Defense of Marriage Act (which federally defines marriage as between one man and one woman) is unconstitutional. Interestingly, this ruling is mostly based on states rights arguments, which is typically the bread and butter of conservatives, not us gaymos. Here’s what the judge had to say:

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment,” Tauro wrote in the opinion.

The case came about because gay couples in Massachusetts were being denied federal benefits, like health care, because they weren’t considered married by the federal government. This happened in San Francisco, too, btw, when people in Obama’s administration actually defied a federal judge to deny benefits to couples. Anyway, this could create a really interesting conflict for groups like the Tea Partiers.

Up to now, the 10th Amendment has been used almost exclusively by conservatives who want to limit the federal government’s power to protect our environment, restrict firearms, or punish racial discrimination. And it’s been a powerful rhetorical tool — it’s been used to good effect by the Tea Party, for example, in fighting health care reform and Wall Street bailouts.

But the DOMA case turns the ideology around. The 10th Amendment is being used for a politically progressive goal — to fight against federally mandated discrimination in an area of traditional state concern.

Andrew Sullivan of The Atlantic wrote a great little piece on this issue, espesh as it relates to the Tea Party, which you should read. Also there’s this sentence, with which I wholeheartedly agree: The incoherence of the Republicans and the cowardice of the Democrats are now exposed more than ever.

The whole Tea Party angle brings up this thing I have been trying to write about for days, actually — that the Tea Partiers are not the “racist, conservative, backward crazies” that liberals assume they are. These thoughts were prompted by an editorial in the Huffington Post about how the Tea Partiers are actually largely pro-gay marriage and abortion rights. Weird, right? I’m not going to tell you all the nuance of this opinion, because I’m not sure what I think about it. But you should read this article about Log Cabin Republicans and how maybe we should try harder to convince people that queers are normal.

Anyway, this court decision could have far-reaching effects for gay marriage in the US when it gets to a higher level. I could tell you about that now, but Jessica the lawyer has agreed to write about that in much more detail and with much more authority next week. So I won’t talk that so much.

Just kidding, I’ll say one thing about it. This article from Vanity Fair is about what happens if the case got to the Supreme Court, but the photo of two dudes in tuxes is too cute for me to not share with you. And also I like this swan analogy:

Sadly, I also know that, while Barack promised to work to repeal this dumb law back when he was campaigning for our pink votes (and those of our pink-proud supporters), his administration is now gearing up to appeal this decision at the circuit court level. Why? Apparently because it’s the job of the federal government to defend the laws it passes, regardless of whether or not they’re sucky and mean, just like it’s the job of a mother swan to defend her cygnets, regardless of whether or not they’re sucky and mean (and not nearly as cute as adorable little ducklings or goslings.)

That paragraph brings us to the next issue: the fact that Obama is probably going to try and defend the law, because that’s what he’s been doing since he got elected: defending DOMA. This “awkward dance,” as ABC News calls it, just got even more awkward. Even Joe Solomonese, president of the HRC, expects Obama to defend DOMA. This would maybe be more acceptable if the White House was also pushing for DOMA’s repeal in Congress.

Probably I will get a talking to for saying this, but I really wonder if Obama would’ve defended federal laws relating to slavery had he been president in the 1800s. I guess it’s his job to defend the law of the land, but it’s also his job to uphold the Constitution. If he thinks a law is unconstitutional, shouldn’t he just let the courts declare it as such? But then, I’ll never get elected president, and I guess that’s probs one of the reasons why.

Also! If you want to do something proactive, you can sign a letter to Obama telling him to cool his jets on appeal.

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Sarah lives in Chicago with her partner and her big white Great Dane. She is a lawyer by day and a beer brewer/bread baker/knitter by night. She & her partner are currently learning how to grow their own food, and eventually they hope to move to a small farm outside the city. In 2009-2010, before jetting off to law school, Sarah was Autostraddle's Managing Editor.

Sarah has written 127 articles for us.


  1. i think obama doesn’t like gays. I don’t mean that he’s a homophobe and that he hates us, obviously he doesn’t, but i think he just *doesn’t like us.*

    kind like that standoffish coworker you have, even though you’ve been working there for months and while said coworker has never done anything mean, you just get this feeling you know?

    … what was i talking about?

    • i think obama just has a lot of people asking him to do a lot of different things, and when it comes to gay rights, the us is completely divided. i think he just has a really hard job.

      • agreed. it’s not like the president can just sit in the oval office with his feet kicked up on the desk and say “damn, it feels good to be a gangsta”. he has a lot of people to appease and has to keep a weird balance of pleasing and displeasing people in order to keep his job.

        • well put!

          however i feel like given the speeches obama has made, he strongly believes in [for example] the repeal of DADT. i realize this is for a different post but i think he could just issue an executive order to do away w/ DADT. sarah made this point before, i know.

          i think i’m just expecting some big action from the obama administration, like “hey, we closed gitmo” and “hey, gays deserve the same rights as the average citizen and here’s me doing something about it!”

          i understand the point you make and i do agree w/ both of you, but during his campeign, obama told mccain [when mccain suggested they both suspend their campeigning to deal w/ the economic collapse] that the president has to be able to deal w/ a lot of things at once. and the man has like an army of smart people at his disposal, shouldn’t there be something by now?

          or perhaps there was something and i missed it b/c i stopped watching the news after i graduated high school.

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  3. You guys should stop complaining cuz one the health care we have now isnt as good as it was supposed to be. also the law has just been signed give it a try u guys are too hard on democrats they went to college and we voted for most of these people.so if u want to say u have the right to choose tell that to ur congress men or state official. as for obama people are just tryin to make it look like america made a mistake he has done things to help us and we had a full 8 years of a terrible president and i will be so as happy as ever when a obama fixes bush’s mistakes. You can find full medical coverage at the lowest price from http://bit.ly/chE6zp obama has to put up with the wo0rld judging his every move and trying to fix the mess we are in we are lucky anyone wants to be our president. STOP COMPLAINING AND GIVE HIM A BREAK. i wanna see one of yall do what he sas done. some people are just so ignorant.

  4. Totes didn’t read the comma in the title and saw Unconstitutional Teapartiers Largely Pro-Gay Marriage.

    And then i WTF’d for a moment, and re-read.

  5. Actually, I think they SHOULD appeal it, until it gets to the Supreme Court, so the Supreme Court can spank DOMA down permanently. This is one thing I disagree with HRC on, even though I am a financial contributor, and support most of the things they do. You don’t want a lower court to make a decision like this when another appeals court could strike it down.

    Politically, it is hard for POTUS to push Congress to repeal it right now. Not that he wants the homophobe vote, but he doesn’t want homophobes to be more motivated than liberals to vote in November.

    I am mostly straight btw. :-)


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