Some hasty stitches about Gill v. OPM (PDF – 44 pages) and Massachusetts v. Sibelius (PDF – 36 pages):
–Typically, when one thinks of DOMA's unconstitutionality, one thinks of Section 2, the so-called "repeal of Full Faith & Credit" provision (which even conservatives acknowledge is probably unconstitutional). Section 2 is not part of these lawsuits — only Section 3's "no nothing never" ban of recognition of same-sex marriage at the federal level was struck down.
–The brass ring of gay rights litigation (i.e., a federal ruling that sexual orientation is a suspect class entitled to intermediate scrutiny), is nowhere to be found in these rulings. That's unfortunate. More on that below.
Gill v. OPM:
–Judge Tauro rightly relies far more on Romer v. Evans and its core holding that mere dislike of gays is not a legitimate government interest. Indeed, Gill highlights how DOMA was explicitly passed for no real reason other than to express contempt, indeed disgust, for gays.
–Gill highlights, among the other federal benefits denied gay couples, spousal and survivor benefits under Social Security. Back when voluntary partial privatization of Social Security was a topic of discussion, I repeatedly pointed out that the status quo was severely detrimental to gays. That didn't stop gay liberals, like all liberals, to gush over how awesome Social Security was and how monstrous it would be to propose altering it in any way. Apology accepted.
–I also seem to recall pointing out that the recent "order" from the Obama Administration asking the federal government to explore ways to tap-dance around DOMA for purposes of employee benefits was either meaningless or unconstitutional. Judge Tauro seems to agree:
A basic tenet of statutory construction teaches that "where the plain language of a statute is clear, it governs." Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The … statute unambiguously proclaims that "'member of family' means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age." And "[w]here, as here, Congress defines what a particular term 'means,' that definition controls to the exclusion of any meaning that is not explicitly stated in the definition."
By making any effort to pretend that DOMA doesn't mean what it says and says what it means, the White House is failing in its duty to faithfully execute the laws.
–Going back to the standard of review, Judge Tauro simply gets it wrong (as any perpetually frustrated libertarian can tell you). Rational basis reviews means that any stated or imaginable "legitimate government interest" is permissible. Merely debunking the stated reasons is not enough: the challenger must show that no possible legitimate interest exists. That was not the approach Judge Tauro took (see Page 22), and that it why the case will be overturned on appeal.
–On the other hand, Judge Tauro's analysis of the government's asinine attempt to use "preserve the status quo" (i.e., as it existed in 1996) as a newly concocted "legitimate government interest" is very impressive. I especially liked this smack-down:
The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.
The entire point of DOMA was to scrap the status quo. To claim now that its purpose was to preserve the status quo is so stupid an argument that only the increasingly disingenuous Obama Justice Department could suggest it.
Massachusetts v. Sibelius:
–Regarding the Tenth Amendment case, Massachusetts v. Sibelius, I don't have much to highlight except to point out that one of the issues in the litigation was a cemetery plot — the same-sex spouse of a veteran simply wanted to be buried with his husband in a federally funded veterans cemetery. DOMA made that impossible (on pain of denial of federal funds). Last time I checked, the dead don't procreate. When they say it's "all about the children," they lie.
–On the merits, Judge Tauro relies on the so-called "rational basis with bite" Commerce Clause cases, Lopez and Morrison, while the DOMA challenge is based on Congress exceeding its power under the Spending Clause. That surely will be a focus of attack on appeal.
Politics:
–Speaking of attack on appeal, the aforementioned Obama DOJ has already announced that it is "studying" the ruling. One more time: There is nothing, absolutely nothing, in the Constitution that "requires" the Executive Branch to defend every, or any, federal law that is declared unconstitutional. The Obama DoJ tried that lie once before to calm the uppity gays over this litigation. Let's see if they try it again.
–Back to the Tenth Amendment argument. As I had said all through the great gay marriage tsunami of years past: States have no "rights." Only individuals have rights. States have powers — powers that they can and do abuse. The question of how social issues, especially gay marriage, will impact the Tea Party movement, is not only unanswered but has been insolently ignored by both those inside and outside the movement. That ends now. (And, as the race to make "yeah, but…" seem non-hypocritical begins, I think it will not end well for the Tea Partiers.)
–I certainly owe GLAD an apology. I didn't see these cases going anywhere (and I still see them overturned on appeal), and I am always skeptical of cases not coordinated, or at least endorsed, by Lambda Legal. Well done, folks.
–Finally, a gentle reminder that Nancy Pelosi is a bitch:
The Speaker strongly supports today's ruling that the Defense of Marriage Act violates the Constitutional guarantee of equal protection. We must continue to work against division and distraction in our country, and work toward the day when all American families are treated equally.