Dear Kim Davis: This Christian Says "You're 100% Wrong."

Dear Kim, I know you are presenting yourself as a victim of persecution: persecution of religious folk who simply want to excercse their faith, persecution by a totalitarian judiciary that is imposing law on average citizens, persecution by a vocal and strident gay minority who are insisting on violating your sincerely-held beliefs, conscience, and deepest religious convictions. Think Again.

First, let me introduce myself to you. I am a Christian. I am a Gay man. I am an attorney who fully embraces the civil liberties enshrined on our Constitution.

Throughout your protestations, you have made fools of the majority of Christians in this country, you have made fools of the people of Kentucky, and you have employed a tortured and innovative interpretation of Constitutional Rights.

You, Madam Clerk, insist that you are being denied your right to live out your faith. I call Balderdash.

No one is telling you to marry a woman. No one is telling that you must engage in homosexuality. In fact, no one is even telling you that you should change your mind, your beliefs, or your most sincerely held religious convictions.

But when you are acting as County Clerk, you are not acting as Kim Davis - you are acting as an agent of the Government.

The First Amendment has a long, time-honored and cherished history in this country. It reads, in part (in case you haven't actually read it) as follows:

Amendent I: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Amendment XIV: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Taken together, this is very simple: Under Amendment I, the federal government may not impose a religion upon the nation, nor may it prevent private citizens from exercising their religion. Under Amendment 14, the prohibitions imposed on the federal government are extended to State governments.

A lesson in civics, dear: Counties are administrative units of States. When you act as County Clerk, you are acting under the authority of the State - not as a private citizen. You are therefore bound by a Constitution which mandates that States must abide by the same rules as the federal government when it comes to citizen's rights. And what are our rights? To not have a particular religion and it's doctrine 'established' as official policy.

As a private citizen, you may believe as you wish, protest as you wish, worship as you wish, and even campaign for a Constitutional Amendment to overturn Marriage Equality.

As an agent of the State, you may not impose or establish a religious test on the citizens. It's very, very simple.

But I'll take it even further: As a Christian, you need to stop speaking for the Church, speaking for God, and making grand pronouncements about what you believe the Bible requires as if your position is Infallible In fact, dear, your statements are erroneous at best, and blasphemous at worst: you have presumed to speak for God on the issue.

Millions of Christians in this nation support same-sex marriage. Numerous denominations have endorsed same-sex marriage, ordination of gays and lesbians, and full GLBT equality. For you to presume to 'declare' what is or is not biblical, or Christian, or "God's Position" on the issue is the worst form of arrogance: you presume to speak on God's behalf. Shame on you.

Your approach is not supported legally, Constitutionally, or theologically.

It's time to retire from public life, consider the damage you have done to other Christians and Kentuckians by association, and reconsider your self-righteous, self-aggrandizing motivations.It's bad enough you have made a fool of yourself and a circus of Rowan County - but in addition, you have betrayed your faith, your God, your public trust, and your Constitution.

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Episcopal Church Approves Same-Sex Blessings, Removes Transgender Bias

The Episcopal Church in the USA has just become the largest Christian denomination in America to approve Blessing Rites for same-sex marriage. In addition, the Church removed discriminatory barriers towards transgender individuals seeking to enter clerical service, specifically banning bias based on both “gender identity” and “gender expression.”

The Church, which has its roots in the Church of England, is meeting at its Triennial Convention in Indianapolis. It is comprised of two ‘chambers,’ a House of Bishops and a House of Deputies; the House of Deputies is itself comprised of clergy (priests) and elected laypersons from every diocese in America.  The measures had to pass muster with all three groups, and they did by large margins.

On Monday, July 9, the House of Bishops approved liturgical resources for blessing same gender relationships (known as Resolution A049)  by a lopsided vote of  111-41 with three abstentions. The new liturgy is considered provisional and its content will be reviewed over the next three years.

“That will mean different things in different locales,” Bishop Thomas Ely of the Diocese of Vermont said when discussing the resolution. “There is a place in this process for every Episcopalian regardless of their level of support for the material. Read it. Reflect upon it. Use it, but please don’t ignore it.”
Bishop Leo Frade of the Diocese of Southeast Florida evoked laughter and applause from both bishops and members of the crowded gallery when responding to an assertion that passage of the same-sex rites would drive Hispanics and Latinos from the church.

“The reality is that we, like everybody else, have gay children. We have gay parents. We have gay uncles. We are like everybody else. We process things the same way…you cannot generalize that Hispanics are going to run away from the Episcopal Church because we have a door that’s open. We are going to run from immigration that’s trying to deport us, but not from the Episcopal Church.”

With the approval of a same-sex blessing rite on Monday, the issue then was sent to the House of Deputies.  The vote, which took place in the last hour, broke down as follows:

Laity:  
Yes - 86
No - 19
Divided – 5 (meaning that the lay delegates in 5 dioceses split evenly, and so cast a single ‘divided’ vote)

Clergy:
Yes - 85
No - 22
Divided – 4 (same as above)


With that vote, the 2-million member strong Church approved same-sex Blessings.

Some in the media have questioned why the Church approved ‘Blessings,’ rather than calling it a “marriage rite,’ and have suggested a sort of second-class rite.  However, this misunderstands the current Episcopal approach to Marriage.

In much of the Episcopal Church, the clergy and bishops have urged a return to the original understanding of a division between the civil role and the spiritual/theological role of the Church in blessing unions.  Bishop V. Gene Robinson of New Hampshire, the first openly gay Bishop in the Church (whose election caused global repercussions within the Anglican Communion) urged churches in his diocese to consider conducting the civil “marriage ceremony’ in the rear of church buildings (representing governmental approval), and then arranging for the official Church spiritual Blessing at the altar in the front of the Church.  As the Church has no authority to change civil law, the liturgy approved is for Church use at the altar, regardless as to whether or not the civil law in that Diocese recognizes same-gender marriages. 


Deputies also adopted Resolution A050, authorizing a task force to study marriage. It calls for creation of a 12-member task force to study marriage, including needs for pastoral responses by clergy for same-sex couples in states where civil marriage is legal, as well as issues “raised by changing societal and cultural norms and legal structures.”

In addition, the House of Deputies agreed with the bishops to offer support for the transgender community by adding gender expression and identity to two canons that prevent discrimination. One makes clear that the ordination discernment process is open to them, and another guarantees their equal place in the life, worship and governance of the church.

Debate on Resolution D019, which addressed the canon titled “Extending the Rights of the Laity,” drew speakers who told of the need to make explicit the church’s welcome – using its slogan “The Episcopal Church Welcomes You” – to those who are transgender.

The Rev. Carla Robinson, deputy from Olympia, Washington, spoke as a transgender person of the importance of specifically including people like her. “By including gender identity and gender expression in this canon, you will rightly name us,” she said. “By naming us in this canon we as a church are continuing to incarnate the Christ-like welcome that is central to our way of faith, and to make it clear to the whole world that the gospel of God’s love in Jesus Christ is for everyone.”
Deputy Natalie Vanatta of Kansas said that as a lesbian her rights as a member of the church are protected under this canon, but they currently are not for transgender people. She said, “The trans community has stood and fought for the rest of the LGBTQ community time and time again, and I would not be living out my baptismal covenant if I did not do the same for them now.”

A vote by orders on this resolution was called, and 89 lay deputations and 92 clergy deputations (out of 109) voted yes.

The Episcopal Church – my Church -  has an official rite for the Blessing of Same Sex Unions.

Laus Deo!

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Federal Judge: DOMA is Unconstitutional; Congress acting "like an Ostrich"

In a brilliantly-crafted decision, Federal District Court Judge Jeffrey S. White of the Northern District of California has found DOMA Unconstitutional. His decision, while echoing and supporting a similar ruling by Massachusetts District Court Judge Joseph Tauro, goes even further than the July 2010 Massachusetts decision did.

The decision specificially declares that laws that discriminate on the basis of sexual orientation must be reviewed with the same scrutiny as laws that discriminate on the basis of race; trashed every arguement that Congress put forth in the passage of DOMA (including stating that "Congress cannot, like an ostrich, merely bury its head in the sand"); denied the right of Congress to impose its own version of 'morality' or "religion" on the issue; and compared DOMA to efforts to prevent interracial marriage.

And for icing on the cake, Judge White closed the decision by quoting U. S. Supreme Court Justice Anthony Kennedy, seen by most Court-watchers as the moderate, key swing vote when this issue eventually gets to the Supreme Court.

The 43-page decision has been reduced to its barest elements below and is worth a read.


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
KAREN GOLINSKI, Plaintiff,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and JOHN BERRY, Director
of the United States Office of Personnel Management, in his official capacity, Defendants.

BACKGROUND

The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit.

Ms. Golinski has been partners with Amy Cunninghis for over twenty years...On August 21, 2008, they were legally married under the laws of the State of California. Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which she purchases through her employer and which already covers the couple’s adopted minor child. The Administrative Office of the United States Courts (“AO”) refused to process her request on the basis that Ms. Golinski and her spouse are both women.

Defense of Marriage Act.

This action presents a challenge to the constitutionality of Section 3 of DOMA as applied to Ms. Golinski...Specifically, Ms. Golinski alleges that, by operation of Section 3 of DOMA, she has been denied certain marriage-based federal benefits that are available to similarly-situated opposite-sex couples, in violation of her rights to equal protection and due process as secured by the Due Process Clause of the Fifth Amendment.

In 1996, Congress enacted and President Clinton signed DOMA into law. Section 3 of DOMA, the only provision at issue in this matter, defines the terms “marriage” and “spouse” for purposes of federal law. Section 3 provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word
“spouse” refers only to a person of the opposite sex who is a husband or a wife.”

The legislative history reveals that Congress acknowledged the constraints imposed by federalism on the determination of who may marry, which has always been uniquely the province of state law. Nonetheless, Congress asserted that it was not “supportive of the notion of same-sex marriage,” and it embraced DOMA as a step toward furthering Congress’ interests in “defend[ing] the institution of traditional heterosexual marriage.” ...Although drastically altering the benefits structure based on state definitions of marriage and the federalist balance in the area of domestic relations, Congress did not hear testimony from agency heads about the effect of DOMA on federal programs, or from historians, economists, or specialists in family or child welfare.

Equal Protection Analysis and Standard of Review.

The “Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)

“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) . This principle embodies a commitment to neutrality where the rights of individual persons are at stake. Dragovich v. United States Department of the Treasury, 764 F. Supp. 2d 1178, 1188 (N.D. Cal. 2011). It is because of this commitment to neutrality that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny.

In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. To these groups of protected classifications, subject to a heightened scrutiny, the government is required to demonstrate that the classification is substantially related to an important governmental objective. Laws that do not burden a protected class or infringe on a constitutionally
protected fundamental right are subject to rational basis review. Under the rational basis review, a law must be rationally related to the furtherance of a legitimate governmental interest.

[Bloggers legal note: The above is a critical Legal issue. If a law is passed that discriminates against a group considered a 'suspect class' such as race, the government must prove that the discriminatory law is "substantially related" to an "important government objective." If it discrimninates against other groups, it only has to prove that there is a rational basis for the law, and that it "furthers a legitimate government interest."]

Level of Scrutiny

Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples.

Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasisuspect class entitled to heightened scrutiny, the Court must look at various factors. The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political
power of the subject class.

The Question of Level of Scrutiny is Still Open.

The Supreme Court and the Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasi-suspect). …No federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians. Therefore, the Court finds the question of what level of scrutiny applies to classifications based on sexual orientation is still open.

1. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination…

2. Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society…

3. The Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity.

4. Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.”

Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny.

[Blogger's legal note: in other words, sexual orientation must be seen similar to race or national origin. Heightened review of the law applies, and the government must prove that the discrimination is "substanbtially related to an important government objective."]

Application of Heightened Scrutiny to Justifications Proffered for DOMA.

Under heightened scrutiny, the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.”

[Blogger's Legal Note: Congress elucidated four reasons for the passage of DOMA, as described below]

1. The first reason proffered by Congress when enacting DOMA was to encourage responsible procreation and child-rearing…Even if this could be considered a legitimate interest, denying federal recognition of and withholding federal benefits from legally married same-sex couples does nothing to encourage or discourage opposite-sex couples from having children within marriage. Accordingly, the Court finds that the first proffered reason for the passage of DOMA does not provide a justification that is substantially related to an important governmental objective.

2. The second reason proffered by Congress when passing DOMA, was its asserted interest in defending and nurturing traditional, opposite-sex marriage…[T]he ostensible governmental objective of fostering opposite-sex marriages remains unaffected by the passage of DOMA…Nor does the denial of benefits to same-sex couples do anything to encourage opposite-sex couples to get married. Accordingly, the Court does not find that the second proffered reason for the passage of DOMA provides a justification that is substantially related to an important governmental objective.

3. The third reason proffered by Congress when passing DOMA was its asserted interest in defending traditional notions of morality. Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny…The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The
obligation of the Court is “to define the liberty of all, not to mandate our own moral code.” Accordingly, the Court does not find that the third proffered reason for the passage of DOMA provides a justification that is substantially related to an important governmental objective.

4. The final reason proffered by Congress for passing DOMA was the preservation of scarce government resources. However, there is no evidence in the record to demonstrate that the provision of federal benefits to same-sex married couples would adversely affect the government fisc[ally.] In addition, the preservation of government resources cannot, as a matter of
law, justify barring some arbitrarily chosen group from a government program. Plyler, 457 U.S. at 227, 229…Accordingly, the Court does not find that the fourth proffered reason for the passage ofDOMA provides a justification that is substantially related to an important governmental objective.

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

[Parallel with Anti-Miscegenation Laws]

Proponents similarly argued that the long-standing tradition of the separation of the races provided justification for prohibiting interracial marriage. The lower court in Loving v. Virginia found that God had created the races and placed them on separate continents in order that there “would be no cause for such [interracial] marriages.” 388 U.S. at 3. It was, at the time, a strongly-held belief among proponents of antimiscegenation laws that mixing the races was against God’s will,
flaunted a long history of tradition and, at its core, endangered the institution of marriage. However, in its holding in Loving, the Supreme Court found that although interracial marriage was a socially divisive issue and proponents of antimiscegenation held traditional and religious beliefs about the erosion of the traditional concept of marriage, Virginia’s racial classification violated the equal protection guarantee.

…[T]his Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law. Accordingly, the Court finds that Congressional caution in the area of social divisiveness does not constitute a rational basis.

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring)


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Court Nomination of Bruce Harris Should be Opposed

[MAY 25 UPDATE HERE]
In spite of the fact that the latest census reveals that 41% of the residents of New Jersey are minorities, the New Jersey Supreme Court remains an embarrassingly monolithic 100% white. In an effort to show sensitivity to issues of diversity, Governor Chris Christie recently nominated two new court members – Phillip H. Kwon, a Korean immigrant, and Bruce Harris, an openly gay black man. The nomination of Harris was initially greeted with excitement in civil rights circles, especially since Harris is both openly gay and partnered.

Unfortunately, Harris’ appointment is conditional upon his recusing himself from any same-sex marriage issues. Governor Chris Christie is on record as opposing same-sex marriage. Christie insists that Harris voluntarily offered to recuse himself, supposedly because three years ago he wrote to several state senators asking for their support of a same-sex marriage bill.

Whether this is Harris’ unsolicited offer or Christie’s requirement is immaterial: it is a dangerous (and illogical) precedent that enables the Executive and Legislative branches to stick its collective noses into the outcomes of judicial cases where it doesn’t belong.

Every Court nominee arrives at the bench with a history of advocacy, either through the legislative process, or through written judicial opinions. This is nothing new. What is new is the pre-emptive strike against specific judges from hearing certain issues.

When President Obama nominated the Hon. Sonia Sotomayor to the United States Supreme Court, there was a brief storm of opinion when she commented, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor, who was ultimately confirmed to the Court, was not suggesting that Latina women were somehow smarter than white men; rather, she was expressing a well-settled understanding that diversity is important in the legal system. Those who have struggled to answer a police officer’s question because they do not speak the language; a woman who has feared for her life in spite of a restraining order issued against her abusive boyfriend; an immigrant afraid to report a crime because of their residency status; and a gay man who is denied justice after being beat on the street by someone who then claims the ‘gay panic defense' - understand life and the American legal processes in ways that are different than those who do not have to deal with such issues. That is why diversity is important, especially in the Judiciary.

To be certain, Judges should recuse themselves from some issues. Title 28 of the United States Judicial Code set standards for judicial recusal, naming four specific occasions. A federal Judge must recuse himself:

1) "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"
(This would not apply to Harris, since there is no particular case with identified parties at hand)

2) when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome;
(This would also not apply to Harris, since there is no specific case at hand)

3) when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding. (This would not apply to Harris, since there is no particular case with any identified financial interests at hand)

4) in any proceeding in which his impartiality might reasonably be questioned.

This is the only criteria where, on its surface, Harris might be accused. A logical analysis, however, as well as history, shows this to be utter nonsense.

Having an opinion on a legislative issue (what “should be”) does not inply that impartiality on a judicial issue (how the law “is” to be applied) is compromised.

First of all, being gay does not disqualify Harris from ruling on marriage issues. If it did, his being a black man would also disqualify him from racial discrimination cases. Furthermore, if being gay disqualifies him from cases involving same-sex marriage, then being heterosexual or married would also disqualify most other judges, since the opponents of gay marriage claim that same-sex marriage harms traditional marriage. This would disqualify both gays and judges in traditional marriages, thereby creating the unacceptable situation of only allowing single judges to rule in such cases.

Second, Harris’ advocacy on behalf of gay marriage can not possibly be deemed to render him impartial in a legal case. As stated above, advocacy for legislative issues does not imply impartiality in Judicial cases. As proof of this, I offer none other than Reagan-appointed Supreme Court Justice Sandra Day O’Connor.

As a State Senator in Arizona, O’Connor not only advocated, but acually cast a procedural vote in favor of a bill to repeal the state's criminal-abortion statute. Later, she voted against a measure to prohibit abortions in Arizona state hospitals. In spite of this, no one ever suggested that O’Connor needed to recuse herself from abortion cases before the Court, and she was confirmed by a vote of 99-0.

Later, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), which upheld some restrictions on second trimester abortions, O’Connor not only participated, but wrote a concurring opinion in which she explicitly opposed overturning the landmark Roe v. Wade abortion decision. In 1990, she was the critical swing vote in Hodgson v. Minnesota, 497 U.S. 417 (1990), which looked at whether a state may require notification of both parents before a minor can obtain an abortion. Again, O’Connor not only participated, but provided the swing vote with the liberals in ruling 5-4 that a state could not do this, and then also provided the critical swing vote with the court conservatives in ruling 5-4 that such a law would be valid if there was a judicial by-pass in place of notifying both parents.

Never in the course or aftermath of these decisions was it ever suggested that Sandra Day O’Connor should have recused herself due to having a position on abortion issues as a state legislator.

The notion, then, that Harris should recuse himself from same-sex marriage cases simply because he favored same-sex marriage legislation in New Jersey is not only unprecedented, it is dangerous: it eviscerates the entire purpose of appointing a representative, diverse court, and calls into question a judge’s integrity before he or she has even had the chance to hear a case.

The caveat that Harris recuse himself is an unacceptable condition of his approval. If this is Christie’s doing, shame on Christie; if it is Harris’ offer, then shame on him.

Either way, this nomination deserves to be defeated as a rejection of the politics of control over judicial rulings.


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DOMA, Prop 8 and Appeals: Outcomes and Next Steps

Yesterday's holding by a Federal District Court Judge that DOMA is Unconstitutional is a big step...but not the end. This was a decision issued by a federal judge on a federal law, but only in a "local" (Massachusetts) case. The question remains of how we turn a Federal District Court holding into a national holding. It would be very unusual for the entire federal government to just roll over and say, "OK, we gotta change now, Congress was wrong on this" as a result of a single District Court holding.

In the best of all worlds, the decision would need to be appealed to (and affirmed by) the Appellate level (and maybe moved on certiorari to the Supreme Court) strictly on the 10th Amendement aspect of the holding, to create a national holding. The 10th Amendment specifically grants to the States the right to legislate in those areas not given Federal jurisdiction, and this was the legal basis for yesterday's decision: States, not the Federal Government, are the entities with authority to define Marriage. DOMA attempted to allow the Federal Government to ignore State Marriage laws that recognize same-sex unions.

Meanwhile, on the West Coast, another decision looms. California's Proposition 8 overturned same-sex marriage in that state, and the Proposition has been challenged on other federal grounds: this one, however, is not based on "State's Rights," but on the Equal Protection Clause of the 14th Amendment to the US Constitution. The specific holding of that trial - which could be released any day - may very well provide a second Federal ruling requiring clarification or appeal...which could accelerate the process.

I expect that, if appealed, the two cases would be joined at the Supreme Court.

Back to yesterday's DOMA ruling: This puts Obama in a very difficult position. On one hand, he could decide to support the Massachusetts District Court decision nationwide; this would be highly unusual, maybe even unprecedented. District Court level Judges issue rulings all the time, often contradictory with each other and almost never with national application overnight.

On the other hand, Obama's Justice Department could Appeal the Massachusetts ruling, thus angering the less-than-critically-thinking gay blogosphere that understands that it *won* at the District Court level.

Whatever Obama decides to do, he must articulate his reasoning WELL both publicly and "within" party and GLBT leadership so its clear what is going on.

BREAKING NEWS: Federal Court overturns DOMA!

From the Boston Globe:

Judge declares US gay-marriage ban is unconstitutional
July 8, 2010 05:21 PM
By Michael Levenson, Globe Staff

A federal district court judge in Boston today struck down a 1996 federal law that defines marriage as a union exclusively between a man and a woman, according to the office of state Attorney General Martha Coakley.

Judge Joseph L. Tauro, in a 36-page ruling that touched on the history of marriage laws, found that the federal Defense of Marriage Act violates Massachusetts’ right to recognize same-sex unions.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote. “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.”

We have argued in this blog strenuously and continuously that the Defense of Marriage Act is a violation of the 10th Amendment of the US Constitution. Family law, and the laws surrounding eligibility for Marriage, have ALWAYS been issues reserved to STATE governments, not the federal government.

Some states permit cousins to marry, while others do not; the federal government has historically and routinely accepted each individual state's declaration of what constitutes a valid marriage, even if that changes from state to state. DOMA was a clear violation of this principle...it also meant that legimately married same-sex couples were forced to lie on their Federal Income Tax, were ineligible for federal survivors benefits, and had to pay additional income tax if they places their spouse on their health insurance.

Ironically, conservatives - who normally support 10th Amendment States Rights arguements - ignored this violation....While Liberals - such as the regular posters on blogs such as Joe.My.God...constantly called me a "Tea-Partier" and "Right-Winger" because I used a 10th Amendment arguement against DOMA.

Well, Massachusetts Attorney General Martha Coakley made this arguement, and won her case in district court.

To be certain, this is not the end of the issue: this was a ruling at the Federal District Court level, which opens up the possibilities of appeals and wrangling before the Appeallate Court and even the US Supreme Court itself if the US Justice Department chooses to pursue this.

But time is in the side of Justice.