Editors' Note: Guest blogger Dr. Carlos T Mock is a native Puerto Rican who resides in Chicago, IL and Three Oaks, MI. He has published four books and is the GLBT Editor for Floricanto Press in Berkley, CA.
Since Same-sex marriage in the U.S. began on May 17, 2004 in the State of Massachusetts; for 14 years courts and many Americans began to change their minds on the subject. However, the Federal government has clung to its official definition of marriage as only between a man and a woman. On Thursday, one of the most conservative federal judges, Judge Joseph L. Tauro--named by Reagan--in the same state where it all began, finally stood up and said there was never a rational basis for that definition. The outcome he reached is long overdue.
The unsustainable Federal definition of marriage is contained in the Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996. At the time, there was no legal same-sex marriage in the United States. But now five states and the District of Columbia issue licenses to all couples. Because of the federal law, thousands of couples in those states cannot receive the same federal benefits as opposite-sex couples, including Social Security survivor payments and spousal burials in national military cemeteries.
Even though there were two cases brought to the judge, Judge Tauro arrived at his conclusions from a case brought by a gay rights group, that the marriage definition violates the equal-protection provisions of the Constitution. There is no rational basis for discriminating against same-sex couples, he ruled, discrediting the reasons stated by lawmakers in 1996, including the encouragement of "responsible procreation" and traditional notions of marriage and morality. In this argument, he was helped by the Obama administration's obligatory but half-hearted defense of the law, which since last year no longer supports Congress's stated reasons.
In their wisdom, our Founding Fathers established a government ruled by separation of powers, with one branch specifically dedicated to protect the rights of minorities, like homosexuals--from the whims of the majority: The Judicial Branch of our government. Courts should generally give Congress wide deference in writing laws, but should not be afraid to examine them when challenged, to make sure they do not discriminate unfairly against an unprotected minority. The Defense of Marriage Act was passed and signed as an election-year wedge issue, and the brief debate leading up to it was full of bigoted attacks against homosexuality as "depraved" and "immoral." One congressman said gay marriage would "devalue the love between a man and a woman." Laws passed on this kind of basis deserve to be upended, and I hope Judge Tauro's equal-protection opinion, which, for now, applies only to Massachusetts, is upheld on appeal.
In his 2003 dissention of the famous Lawrence v. Texas case, Justice Antonin Scalia actually predicted this moment would arrive. That decision left laws prohibiting same-sex marriage "on pretty shaky grounds," he warned, since it undercut the traditional moral basis for opposing homosexuality. The Justice Department cited those words when it abandoned its defense of the law as related to procreation, which, in turn, helped lead to Thursday's decision. The process of justice can take years, but in this case it seems to be moving in the right direction.