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The Plain, Irrational Truth About DOMA

The judge who yesterday struck down much of the federal Defense of Marriage Act is not a liberal activist or a promoter of some “homosexual agenda,” though he is no stranger to bold judicial rulings.

U.S. District Judge Joseph L. Tauro of Boston is a married 79-year-old grandfather, a former U.S. Army missile officer and a one-time federal prosecutor whom President Richard Nixon appointed to the federal bench in 1972. Tauro is the last of the 220 federal judges appointed by Nixon who remains on full-time duty. (Federal judges, who are appointed for life, take “senior status” when they retire, which allows them to continue hearing cases part-time as long as they care to do so.)

Tauro’s father, G. Joseph Tauro, retired in 1976 as chief justice of the Massachusetts Supreme Judicial Court. The elder Tauro is best remembered for a decision outlawing the death penalty in the Bay State on the grounds that the right to life is guaranteed under the state Constitution, but he was also well-respected as a fierce advocate of judicial independence.

With yesterday’s decisions, the son lived up to his father’s legal legacy.

In a pair of cases, one brought by the state of Massachusetts and the other by advocates for a group of same-sex couples who were married and reside in the state, Tauro eviscerated the Justice Department’s attempts to defend Section 3 of the 1996 legislation, which declared any same-sex marriage null and void for all purposes under federal law. He found that the law has no rational basis, and that it unconstitutionally violates individual citizens’ rights to equal protection under the law guaranteed by the Fifth Amendment. Further, he found that it violates Massachusetts’ powers to govern the domestic relations of its citizens, which he determined belongs to the state under the 10th Amendment.

“In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled,” Tauro wrote. “And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals.

“To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, ‘there is no reason to believe that the disadvantaged class is different, in relevant respects’ from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.

“As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

The Justice Department did not even try to defend the rationales that legislators put forth when they passed DOMA. No state at that time recognized same-sex marriage, though court action in Hawaii had by then raised the possibility for the first time. Presently, the District of Columbia and five states (Massachusetts, Connecticut, Vermont, New Hampshire and Iowa) permit same-sex marriage. California allowed same-sex couples to wed for several months in 2008 before voters there amended the state Constitution in a ballot initiative that is now subject to a separate legal challenge.

Congressional sponsors of DOMA contended that they wanted to encourage responsible procreation and child-rearing, defend and nurture the “institution of traditional heterosexual marriage,” defend traditional notions of morality, and preserve scarce government resources, Tauro wrote. The judge observed that, in each instance, the law either does not address the stated objective — individuals married to same-sex partners are already married and cannot marry someone of the opposite gender, for example — or found that the objective, such as preserving the traditional concept of marriage, is not within the federal government’s purview. He pointedly noted that, in New Hampshire, a 13-year-old girl and a 14-year-old boy can get married with parental consent, and that the federal government would recognize such a marriage even though no other state would permit it to occur.

Inevitably, the judge’s rulings turned to Loving v. Virginia, the 1967 Supreme Court decision that struck down laws against interracial marriage that then existed in more than a dozen states, and which found that marriage is a fundamental right.

The Obama administration argued that Congress had a legitimate interest in enforcing a consistent national definition of marriage at a time when that definition was in flux. But Tauro found that the decades-long legal and legislative battle over interracial marriage belies the government’s position that prior disputes about marriage had never before “become a topic of great debate in numerous states with such fluidity.”

The administration also argued that Congress could reasonably try to protect the “status quo” of marriage as it existed in 1996. But Tauro noted that the status quo at that time was that states, not Congress, decided who could be married and under what circumstances.

In the end, Tauro called it as he saw it: that DOMA was motivated and justified purely by “animus” (a polite legal synonym for “hate”) against an unpopular minority.

To put it in my own words: This legislation was born in popular prejudice, nurtured by politicians who saw an advantage in pandering to their constituents’ fear and hatred, and signed into law, in an election-year act staggering in both its cynicism and cowardice, by President Bill Clinton, who had previously portrayed himself as a friend of gays and lesbians.

Judges, and particularly judges with lifetime appointments to preserve their independence, exist to protect the rights of unpopular minorities who would otherwise be victimized. Tauro’s decisions yesterday fully satisfy that purpose and measure up to the highest standards of the federal bench.

He will not have the last word on an issue that is destined to reach the U.S. Supreme Court, but his rulings are a fine starting point for the judiciary’s examination of this shameful legislation. I think his father, who died in 1994, would have been proud.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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