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Defense of Marriage Act ruled unconstitutional by appeals court

By David G. Savage, Tribune Washington Bureau –

WASHINGTON — Advocates of same-sex marriage won a major legal victory — and greatly increased the odds of a Supreme Court showdown on the subject — as an appeals court ruled that the government cannot deny tax, Social Security and other federal benefits to gay couples who are legally married in their home states.

The ruling struck down a major part of the Defense of Marriage Act, the law adopted in 1996 that denied federal benefits to same-sex couples. The Obama administration had urged the court to overturn the law, saying it violated the constitutional rights of gay couples.

The 3-0 decision by the federal appeals court in Boston sends the gay marriage issue toward the Supreme Court on two tracks.

One track directly involves whether gays and lesbians have a constitutional right to marry. In that case, a federal appeals court in San Francisco struck down California’s Proposition 8, which had reversed the state Supreme Court’s decision. The other track — the current case — involves whether gay couples, once legally married, have a right to equal treatment.

Both cases are likely to be appealed to the Supreme Court later this year. The judges in Boston made it clear they had that in mind, and seemed to be tailoring their opinion for Justice Anthony Kennedy. The 9th U.S. Circuit Court of Appeals also tailored its Proposition 8 opinion for Kennedy, who is likely to be the swing vote.

The Boston-based judges of the 1st U.S. Circuit Court of Appeals, two of whom are Republican appointees, sounded a state’s right theme in Thursday’s opinion. Marriage is a matter of state law, they said. And as such, they saw no valid justification for the federal government to “penalize” legally married same-sex couples by denying them the same benefits available to all other married couples. These include filing a joint tax return, obtaining family health care coverage for the spouse of a federal employee or receiving a survivor’s benefit from Social Security.

The Obama administration had reached the same conclusion last year and refused to defend this part of the law. House Republicans, led by Speaker John A. Boehner of Ohio, vowed to carry on the defense. They hired Washington lawyer Paul Clement to argue in favor of limiting federal recognition of marriage to a “legal union between one man and one woman.”

White House press secretary Jay Carney said President Barack Obama agreed with the court’s decision. The administration sent a lawyer to Boston to argue for striking down part of DOMA as a violation of equal protection.

“There’s no question that this (decision) is in concert with the president’s views,” Carney said.

Congress passed DOMA to prevent a gay marriage in one state from being accorded legal recognition in other states. This provision was not at issue in Thursday’s decision. Instead, the ruling arose from a challenge to the federal benefits provision filed by seven same-sex couples who were married in Massachusetts and sought equal benefits as a married couple.

The judges steered clear of strong wording or sweeping conclusions about the legal status of gays. They did, however, cite Kennedy’s 1996 opinion that struck down an anti-gay voter initiative in Colorado.

The Boston judges conceded their ruling was only a stepping stone.

“Only the Supreme Court can finally decide this unique case,” Judge Michael Boudin wrote. They put their decision on hold until the law’s defenders could appeal.

Clement pledged to do just that. “We have always been clear we expect this matter ultimately to be decided by the Supreme Court, and that has not changed,” he said.

Nonetheless, gay rights advocates hailed the ruling as another step toward full legal equality for gays and lesbians.

DOMA created “a classic double standard, whereby gay people were singled out for discrimination,” said Mary Bonauto, a lawyer for Gay & Lesbian Advocates & Defenders, the Boston-based group that sued on behalf of the seven same-sex couples. The lead plaintiff, Nancy Gill, is a postal worker who sought health benefits for her spouse. Massachusetts filed a similar suit against the government, stressing the state’s rights issue.

Suzanne Goldberg, a Columbia law professor, said the court’s opinion “helps to sound the death knell for DOMA. The 1st Circuit explained, clearly and simply, that denying same-sex couples the benefits of marriage will not support heterosexuals’ marriages.”

The National Organization for Marriage sharply criticized the ruling. “It’s obvious that the federal courts on both coasts are intent on imposing their liberal, elitist views of marriage on the American people,” said Brian Brown, the group’s president. “They dismiss the centuries-old understanding of marriage as a critical social institution that exists for the benefit of couples and their children.”

The Massachusetts state high court was the nation’s first in 2003 to declare gays and lesbians had a right to marry. Since then, more than 100,000 same-sex couples have wed legally there and in other states where gay marriage was legal, according to the court’s opinion. That includes Iowa, Connecticut, New Hampshire, New York, Vermont and, pre-Proposition 8, California. Two other states, Washington and Maryland, have passed gay-marriage laws that could face voter initiatives in November. The District of Columbia also permits same-sex marriage.

The opinion by Boudin, an appointee of President George H.W. Bush, was joined by Chief Judge Sandra Lynch, a Bill Clinton appointee, and Judge Juan Torruella, a Ronald Reagan appointee.

The broader right-to-marry issue is likely to reach the high court in the California case, now awaiting a possible review by the full 9th U.S. Circuit Court of Appeals.

A federal judge in San Francisco and a three-judge panel of the 9th Circuit struck down Proposition 8, the voter initiative that limited marriage to a man and a woman. Both decisions relied on the Constitution’s guarantee of equal protection of the laws.

Defenders of Proposition 8 asked the full 9th Circuit to review the panel’s decision. If that fails, they can appeal to the U.S. Supreme Court.

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And how do you know Christ wasn’t gay? I never read once in the New Testament a prohibition uttered from Christ’s mouth against homosexuality. He was an outcast who spent time with prostitutes, thieves and lepers. It’d be safe to bet that he also hung with homosexuals as well…no pun intended…really.

Soon, the likes of Mr. Vander Platts will see their drive to discriminate against others come crashing down. That is why we have our Constitution, to protect the rights of all people, and provide Equal Protection Under the Law, especially from the likes of Social Conservatives who prefere to send us back to the pre-civil rights era.

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