Supporters of gay marriage rally last January outside the federal courthouse in San Francisco. In California, a citizen mandated gay marriage ban, Prop 8, has been challenged in the courts. (Reuters)
A federal district court judge in Boston has overturned the federal ban on gay marriage, saying that it interferes with the states' right to define marriage.
Massachusetts was suing the federal government because it says the 1996 Defense of Marriage Act prevented gay married couples in the state from receiving benefits like Medicaid.
Judge Joseph Tauro drew on history in his ruling, writing that the states have set their own marriage since before the American Revolution and that marriage laws were considered 'such an essential element of state power' that the subject was even broached at the time of the framing of the Constitution."
Opponents of same-sex marriage condemned the ruling. Kris Mineau, president of Massachusetts Family Institute called Tauro's ruling "another blatant example of a judge playing legislator."
Mineau charged that "same-sex marriage activists have tried time and time again to win public approval of their agenda, and they have failed each time," and he predicted that on appeal, courts will uphold the federal government's right to define marriage.
So, when Mr. Mineau predicts that on appeal, courts will uphold "the federal government's right" to adjudicate on matters in which there is federal prerogative, is that sort of like upholding the federal government's right to rule on matters of immigration? Ahh, there's the rub.
What you have here, in the space of a week, are diametrically opposed factions on two different issues forced to choose which state has the right to do what.
In general, liberals critical of Arizona's controversial new immigration law will applaud the decision made by the Commonwealth of Massachusetts. Conservatives, strongly in support of Arizona's right as a state to order its own affairs, will oppose the ruling by the judge in Massachusetts as some kind of judicial fiat. And of course, the opinions of these critics are based on their politics instead of what's important: Fidelity to the law. You just can't make this stuff up.
So which shall it be conservatives? If you support the right of states to rule on matters of immigration, which we all know is a clear federal prerogative, do states then also have the right to rule on matters of marriage, which also can be argued as a federal prerogative?
There is a very legitimate concern that both of these issues have in common. When states make up their own laws on issues that affect all Americans, you run into all sorts of legal minefields. Can one state have a different set of marriage laws than another. Gays can legally marry in the Commonwealth, Iowa and in several New England states. What is their status in Montana, Wisconsin or Ohio, particularly with regard to federal entitlements granted to all spouses who marry?
In the same way, can we have 50 different sets of immigration laws when immigration is a matter that impacts all American citizens?
Without question, the federal government has dropped the ball on this matter, and on gay marriage as well. Both are such political hot potatoes that federal lawmakers haven't the courage to take them on. Perhaps Arizona's maverick attitude will prod federal lawmakers to finally do their jobs. Or perhaps a court will strick their effort down. We'll see.
But can you have this both ways. Do you who support what Arizona is doing also support the Commonwealth of Massachusetts its right to order its own affairs in the same way as Arizona has done?
And for liberals, this, too, runs the risk of putting them at cross-purposes. If you oppose the Arizona law, particularly if you oppose the law based on the argument that the Constitution provides for the federal government to address issues of federal consequence, then how can you support the ruling by a Massachusetts judge? Though the issues are different, are the procedural and legal arguments not similar?
Of course, we're speaking in generalities here. Certainly there are conservatives who think it's none of the government's business to interfere with someone so personal as marriage, and so gay marriage is the business only of the couple involved. Since the state of Massachusetts sanctioned gay marriage, there hasn't been a decline in heterosexual marriages nor have heterosexual marriages dissolved because one or the other partner in the marriage decided he or she wanted to be in a gay marriage, so the fears about the dissolution of a sacred institution are unfounded.
And of course, there are people on the left who feel Arizona is making the right decision --indeed, is doing little more than enforcing existing federal law.
So which is it? Or are we to be consistent with the letter of the law, are we to align ourselves according to ideologies in spite of the law, or are these two cases apples and oranges?
Comments
Thank you for pointing out the absurdity of the right-wing's contradictory argument!
My idea is to do away with the word "marriage" in any and all legal documents. Instead use "civil union". Change "husband" and "wife" to "spouse one" and "spouse two". This thereby eliminates the tricky matter of the definition of "marriage" to the religious community.
Great article with excellent points. Ideologues are going to see what they want to see, but I appreciate your fair presentation of the problems we're facing. I think that both Arizona and Massachusetts should be allowed to make their own laws in these examples. That said, when they make those laws they shouldn't expect the Federal Government to fund their decisions (ie Border Troops or Medicaid payments). Unfortunately everybody wants to make their own rules and have someone else pay for it. Too harsh?
So what now Brucie is commenting on his own articles? Weird man weird.
Sara says: My idea is to do away with the word "marriage" in any and all legal documents. Instead use "civil union". Change "husband" and "wife" to "spouse one" and "spouse two".
Think much of yourself? Your so doam important and powerful you freaks feel you can change the language we have used for centuries?
You people are incredible!
THREE more JustUs Department attorneys have come out to support of whistle blower Mr. Adams. This put to rest the lies of he was a disgruntled employee as some have alleged.
Still not a national story though?
Sara almost has it. Instead of going to the unnecessary expens of changing all those millions of documents that include the word marriage, and tying up courts and political air time, I have a much simpler solution that is also constitutional (so the right will like it) and equal (so the left will like it). Ready?
Eliminate government involvement in marriage by 100%. No licenses, no lawyers, no bureacracies, AND -- heaven be praised -- no posturing, pontificating politicians playing all sides against one another.
Then all you need is someone to officiate at the wedding who is willing to perform a ceremony and provide legal documentation that the ceremony took place (and possibly any terms stipulated at the time).
Done!!!
Darn. One tiny snafu here. The radical left will not like it because it will take away a source of needless by power-granting government intervention in private lives. (This includes the leftists who want to impose the 1 man 1 woman restriction too).
I disagree with the suggestion that the Massachusetts marriage cases and the Arizona immigration represent a conflicting principle. The 10th Amendment states that, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The ability to define marriage is not delegated to the federal government, and has practically and historically been a power reserved for the States. In contrast, control of the borders is delegated to federal government by the U.S. Constiution (Article IV, Section 4). Thus, a consistent application of the Law would logically find for the plaintiffs in the Massachusetts marraige cases, and against the State of Arizona in regards to its immigration laws.
Stan -- I'm with you on this. I've long argued that government should be out of the marriage business and that the only reason they're in it is because there's money to be made off it. Too cynical?
But we're not so lucky, so the questions I'm seeking answers for still remain. We're stuck with what we're stuck with right now. Are the legal constructs in the efforts by these two diametrically opposed states the same, and if so, should ideologues left and right agree either one way or the other in order to be consistent with what's most important, the law?
I find conflicts like this to be fascinating and for what it's worth, I've contacted several constitutional lawyers on this question and await there answers. (Oh, and again, yes: Get the damned government out of the marriage business.)
Yeah "twisted freaks" I heard that good looking Megyn Kelly had some member of the Black Pansy Party on her show today. Didn't see it but you know the sorry @ss piece of turd had an excuse for everything sexy Megyn questioned him about.
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