Federal Judge Declares Much of DOMA Unconstitutional

A district court judge has issued a ruling that could have wide ramifications for the question of same-sex marriage.

Via the WSJ’s Law Blog:  Federal Court Hands Major Victory to Gay Couples:

U.S. District Judge Joseph Tauro ruled that the federal Defense of Marriage Act, which prevents the federal government from giving pension and other benefits to same sex couples, is unconstitutional, reports the Associated Press.

Tauro wrote that the 1996 law ran afoul of the Constitution’s Tenth Amendment. “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.


Tauro also concluded that DOMA violates the Constitution’s equal protection clause.

The AP story has more detail:

In a ruling in a separate case filed by Gay & Lesbian Advocates & Defenders, Tauro ruled the act violates the equal protection clause of the U.S. Constitution.

“Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification the Constitution clearly will not permit,” Tauro wrote.

Well, I have been predicting since DOMA was passed and in signed back in 1996 that it would eventually be challenged in court and that it would likely be overturned and assumed the ruling would be based on some combination of the Full Faith and Credit clause in Article IV and the Equal Protection clause of the XIVth Amendment.

The Xth Amendment inclusion is interesting, as on one level it strictly places public policy over marriage in the hands of the states, which could, if it was the only ruling, have the effect of reinforcing the constitutionality of same-sex marriage bans that exist in many states.

Ultimately, however, the XIVth Amendment ruling will, I think, be the more consequential of the two for the long haul.

The entire process is an interesting one in terms of understanding how our system works and how long issues can be active before they are finally solves (and this is one is far from solved).


1)  In 1996 Congress creates legislation that: a)  allows states to ignore same-sex marriage from other states, and b) declares for federal purposes (e.g., taxes, benefits, etc) that marriage is only between a man and a woman.  This was done before any state actually allowed same-sex marriage.  As such, it was an attempt at political preemption with most people knowing that what it would do, probably, was create speed bumps on the inevitable road to same-sex marriage rather than stopping it.  This was a set of law suits waiting to happen.

2)  For any actual movement to happen, however, states had to start allowing same-sex marriage, which eventually happened.  Then, someone had to ask for federal benefits based on their martial status and have them denied.  That denial had to lead to a lawsuit.

3)  Eventually such a lawsuit was likely to result in a ruling like this one.  Judge Tauro is quite right when he states that Congress was purposefully disadvantaging a specific group, and so it has always seemed obvious to me that it violated the Equal Protection clause.

4)  Now we have to wait for several other shoes to drop:

a)  What will the appeals court say (as an appeal is inevitable)?  They could end this node of the debate.

b)  Will is make it all the way to SCOTUS?

5)  The next step in the process is for a gay couple to move from a state that allows gay marriage to one that does not, attempt to have that marriage recognized only to have the new state evoke the other portion of DOMA.  This will lead to another set of lawsuits, which will likely results in more Equal Protection arguments coupled with full faith and credit ones, and at that point we will likely come out of the process with a right to gay marriage.

Of course, this could take quite a few years.  Back in 1996 I remember telling classes that it would take at least a dozen years for it play out once a state made same-sex marriage legal.  It may, ultimately, take longer than that start-to-finish.

It is an interesting study in federalism and the role of the courts.

It should be noted that Jack Balkin believes that the cases demonstrate judicial overreach and are likely to be overturned on appeal.

FILED UNDER: *FEATURED, Law and the Courts, US Politics, ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. Michael Reynolds says:

    Hey, where are los tres pinheados and d’dartango?

    I’m clearly going to have to fill in for them.

    Okay, um, let’s see . . . marriage destroyed, liberals hate America, activist judges, Kenyan conspiracy. Then some insane rant off-topic, possibly involving choreographers. And just imagine Tangos’ inevitable racist statistics. Random cackling. And Sarah Palin.

  2. Trumwill says:

    Regardi equal protectiocould DOMA be modified to simply say that no state is obligated to acknowledge any marriage that would not be legal in its own state? If so, it wouldn’t inherently be targetting gays as it would also apply to marriages of youth and plural marriages if ever legally permitted in a specific state. If plural marriage ever was allowed, would the federal gov’t be forced to honor it with its own benefits? If not, how (other than arguing homosexuality to be natural (which I believe but which is not beyond dispute), neutral (ditto), and intractible (which I am less sure of on the fringes but am also not sure it matters there if it is intractible for even some) do you make the distinction?

  3. superdestroyer says:

    At least the militant homosexuals are open about their agenda. The first is that whatever one state does, then all the states have to do it. That means that Mass. or California get to set the laws for the other fifty states.

    Second, all the talk about human rights has been a huge smokescreen. The push for gay marriage has always been about government goodies and raw political power.
    The militant homosexuals can know get to all the government money they want and there is no way, either politically, regulatoryly, or legally to stop them. Since the homosexuals own the courts and the Democratic Party, the homosexuals will always get what they want.

  4. DavidL says:

    I am amused by the arguement thqt Congress can not legislate to favor one group overr another. Everything Congress does is done to favor some groups over others. Federal kidnapping statutes disfavor kidnappers. Obama Care favors the sick over the healthy. Ethanol mandates support farmers at the expense of motorists. All Congress does is to pick winners and losers. Shall we just disband Congresss?

  5. sam says:

    “the homosexuals will always get what they want.”

    Is it true that militant antihomosexuals wear their trousers on backwards for protection?