This is not just a bad ruling from a judge; it is a sign of the deceit and collusion of Pres. Obama’s Justice Department in sabotaging the defense of DOMA.  This was a sham trial, between two parties who both wanted the government to lose this case.

I don’t get the political decision behind defending DOMA in court.  Defending DOMA in court doesn’t strike me as a move that will gain you any votes, especially when you say that you oppose it.  If this is the issue you vote on (like Brown and Maggie Gallagher), you won’t be voting for Obama regardless of what he does.  Then there is the fact that I think Brown’s logic is just plain wrong.  The administration would not need to go through the motions of a trial if their goal is really to see it defeated.  They could simple choose not to defend DOMA, or at the very least do it with less gusto (say, dropping any comparisons to incest).

On the issue of a federal marriage amendment, I say go for it.  It doesn’t even poll well with people who oppose same-sex marriage (a 2006 ABC poll found a 16% gap between opposing same-sex marriage and supporting a Constitutional amendment).   Such a bold move, I think, alienates a lot of people who are in the middle on this issue.  I think it polls the way it does because it strikes people as a) overkill and b) even more mean-spirited than denying rights on a state-by-state basis.

As another side note, NOM also started their “Summer for Marriage Tour” in Maine.  Based on the photo sent out by NOM, I’m not so sure they needed the microphone.  Hopefully the crowd of about 50 speaks to their waning influence.

The Associated Press covered the story and gave a peculiar (read:inaccurate) description (emphasis added):

U.S. District Judge Joseph Tauro said the law, the Defense of Marriage Act, interferes with the right of a state to define marriage and therefore denies married gay couples some federal benefits. He ruled Thursday in favor of gay couples’ rights in two separate challenges to DOMA, which the administration of President Barack Obama has argued for repealing.

Not sure you’d exactly call last June’s DOMA brief arguing for repeal.  In fact, while Obama called for the repeal of DOMA during the campaign, the White House is now not answering whether or not he finds DOMA to be constitutional and the Justice Department has defended it.  As Joe Sudbay and others have pointed out, the decision to defend DOMA again will create a lot of anger as we approach the 2012 election.

BREAKING NEWS: Boston Federal Judge Strikes Down DOMA!

Better yet?  This judge, who will undoubtedly be called an activist liberal, was appointed by Richard Nixon.

For once, Brown is remotely accurate.  For those who are legally inclined, the ruling is here [.pdf].  For the rest of us, Lisa Keen’s recap is here.

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

In Commonwealth of Massachusetts v. Health and Human Services, Tauro considered whether the federal law’s definition of marriage — one man and one woman — violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others. In Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders (GLAD), a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law…

You may recall a bit of buzz when Senator Kerry supported the challenge from Attorney General Coakley.  The background on the GLAD case is here.  This effort was led by Mary Bonauto, who I’ve praised before.  Here’s the key point fo the challenge:

Section 3 of DOMA applies to the federal government only. It overrides a state’s determination that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs, even though the federal government has always deferred to state determinations of marital status. Under this law, “the word ‘marriage’ means only the legal union of a man and a 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.” This law requires all federal departments and agencies to disrespect the valid state-licensed marriages of same-sex couples but not other married couples. As a result, only married same-sex couples are denied all rights, protections and responsibilities associated with marriage at the federal level [my note: i.e. tax benefits].

And as a slight digression from the excitement here, check out my favorite line from Brown’s email:

Despite the explicit language in DOMA that the law was designed to protect children’s right to their mothers and fathers, the judge disavowed that DOMA has anything to do with responsible procreation.

“Responsible procreation.”  Not sure what that is.  Are two loving individuals who wait to make a conscious effort to have children and raise them engaging in “responsible procreation?”  Or only two people who can produce a child biologically–regardless of their intent to start a family or even see their partner again?  If you want to address “responsible procreation,” don’t come after two people who are making a commitment to each other and jumping through hoops to have children.  Try targeting one night stands or deadbeat dads.

Here’s the quote from the judge’s ruling, via The Family Equality Council, that addresses parenting:

A consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. Denying their parents federal benefits of marriage, said the court, “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure.

Like all this progress?  Sign the Freedom to Marry Pledge here.

I’m naturally an optimist, but here is why I say this.  Yes, this has the potential to derail many of Obama’s plans, including health reform.  Oddly though, it seems that people have already forgotten what this administration has faced to date.  First, we relied on moderates like Susan Collins, Olympia Snow and Arlen Specter for passage of the stimulus.  Then Specter switched parties which gave the Democrats “60″ votes.  How much good did that do?

When came time to debate health reform we faced Olympia Snowe’s central role in getting a bill out of the Finance Committee which fell short of what progressives had outlined.  Then what happened?  Democrats got Liebermaned (I think I’m coining that).  After that?   We were put in a full (Ben) Nelson.  As Matt Yglesias points out, even Democrats who didn’t cause problems for health reform obstruct other progressive policies.

My point is only that having 60 Senators caucusing with the Democrats has produced some less than desirable results.  I get the incredibly sad irony that it was Kennedy’s seat that is torpedoing the (relatively) comprehensive health reform we thought we had.  It’s also tough to see exactly what reforms will end up passing.  I’ll leave that to people who have a better whip count.  It will inevitably be less than I want, but it should still be something.

One other observation:

I’ve heard a lot of grumbling now that issues of LGBT rights have no chance of passing now.  I have to wonder though, what did the 60 vote supermajority get us before?  The Hate Crimes Bill passed with bipartisan support because it was folded into the defense authorizations bill.  Other than that?  We’re not looking at much success.  A repeal of Don’t Ask, Don’t Tell?  Not passed.  The Employment Non-Discrimination Act?  Still waiting.

My point isn’t to say that it can’t get worse, so we shouldn’t bother.  My point is to say that we need to stop thinking of and describing some of these issues as “progressive” issues that will only pass when Democrats can drive it through.  The repeal of DADT is supported by a majority of Americans.  Further, the Employment Non-Discrimination Act has bipartisan support in the Senate and House.  We may not get the leadership we’d hope for from the White House, should they decide to play it safe for the midterms, but it is not unfathomable to imagine it being pushed through without White House leadership.  Sure, support from Democrats is often easier than Republicans, but we shouldn’t completely write off all Republicans.  The pressure needs to be felt by Reid and Pelosi.  Will we get a repeal of the Defense of Marriage Act?  No.  Could movement be made on DADT or ENDA?  I don’t think we should give up.

If Polis were from a state that recognizes same-sex marriage, I can’t help but wonder if this would be a case that could challenge the Defense of Marriage Act in the courts in a way that would certainly grab headlines.  Polis v. the United States would be quite the case to watch.

• A sense of timing on the repeal of Don’t Ask, Don’t Tell (as well as ENDA and DOMA).
• A call for marriage equality (which I didn’t expect)

It’s a great thing to see the President out there recognizing these truths, but we do really need to step it up (as he asked of us) “to hold his feet to the fire.”  What is key to me, though, is that we also hold the feet of legislators to the fire who need to step up the way that Jerrold Nadler and Patrick Murphy have for DOMA and Don’t Ask, Don’t Tell.

Tonight, somewhere in America, a young person, let’s say a young man, will struggle to fall to sleep, wrestling alone with a secret he’s held as long as he can remember.  Soon, perhaps, he will decide it’s time to let that secret out.  What happens next depends on him, his family, as well as his friends and his teachers and his community.  But it also depends on us — on the kind of society we engender, the kind of future we build.

I believe the future is bright for that young person.  For while there will be setbacks and bumps along the road, the truth is that our common ideals are a force far stronger than any division that some might sow.  These ideals, when voiced by generations of citizens, are what made it possible for me to stand here today.   These ideals are what made it possible for the people in this room to live freely and openly when for most of history that would have been inconceivable.  That’s the promise of America, HRC.  That’s the promise we’re called to fulfill.  Day by day, law by law, changing mind by mind, that is the promise we are fulfilling.

And there’s no more poignant or painful reminder of how important it is that we do so than the loss experienced by Dennis and Judy Shepard, whose son Matthew was stolen in a terrible act of violence 11 years ago.  In May, I met with Judy — who’s here tonight with her husband — I met her in the Oval Office, and I promised her that we were going to pass an inclusive hate crimes bill — a bill named for her son.

This struggle has been long.  Time and again we faced opposition.  Time and again, the measure was defeated or delayed. But the Shepards never gave up.  They turned tragedy into an unshakeable commitment.  Countless activists and organizers never gave up.  You held vigils, you spoke out, year after year, Congress after Congress.  The House passed the bill again this week.  And I can announce that after more than a decade, this bill is set to pass and I will sign it into law.

Soon after the protests at Stonewall 40 years ago, the phone rang in the home of a soft-spoken elementary school teacher named Jeanne Manford.  It was 1:00 in the morning, and it was the police.  Now, her son, Morty, had been at the Stonewall the night of the raids.  Ever since, he had felt within him a new sense of purpose.  So when the officer told Jeanne that her son had been arrested, which was happening often to gay protesters, she was not entirely caught off guard.  And then the officer added one more thing, “And you know, he’s homosexual.”  Well, that police officer sure was surprised when Jeanne responded, “Yes, I know.  Why are you bothering him?”

And not long after, Jeanne would be marching side-by-side with her son through the streets of New York.  She carried a sign that stated her support.  People cheered.  Young men and women ran up to her, kissed her, and asked her to talk to their parents.  And this gave Jeanne and Morty an idea.

And so, after that march on the anniversary of the Stonewall protests, amidst the violence and the vitriol of a difficult time for our nation, Jeanne and her husband Jules — two parents who loved their son deeply — formed a group to support other parents and, in turn, to support their children, as well.  At the first meeting Jeanne held, in 1973, about 20 people showed up.  But slowly, interest grew.  Morty’s life, tragically, was cut short by AIDS.  But the cause endured.  Today, the organization they founded for parents, families, and friends of lesbians and gays  has more than 200,000 members and supporters, and has made a difference for countless families across America. And Jeanne would later say, “I considered myself such a traditional person.  I didn’t even cross the street against the light.  But I wasn’t going to let anybody walk over Morty.”

Full transcript below (via Pam’s Houseblend)

<hr>Thank you so much, all of you.  It is a privilege to be here tonight to open for Lady GaGa.  (Applause.)  I’ve made it.  (Laughter.)  I want to thank the Human Rights Campaign for inviting me to speak and for the work you do every day in pursuit of equality on behalf of the millions of people in this country who work hard in their jobs and care deeply about their families — and who are gay, lesbian, bisexual, or transgender.  (Applause.)

For nearly 30 years, you’ve advocated on behalf of those without a voice.  That’s not easy.  For despite the real gains that we’ve made, there’s still laws to change and there’s still hearts to open.  There are still fellow citizens, perhaps neighbors, even loved ones — good and decent people — who hold fast to outworn arguments and old attitudes; who fail to see your families like their families; who would deny you the rights most Americans take for granted.  And that’s painful and it’s heartbreaking.  (Applause.)  And yet you continue, leading by the force of the arguments you make, and by the power of the example that you set in your own lives — as parents and friends, as PTA members and church members, as advocates and leaders in your communities.  And you’re making a difference.

That’s the story of the movement for fairness and equality, and not just for those who are gay, but for all those in our history who’ve been denied the rights and responsibilities of citizenship — (applause) — for all who’ve been told that the full blessings and opportunities of this country were closed to them.  It’s the story of progress sought by those with little influence or power; by men and women who brought about change through quiet, personal acts of compassion — and defiance — wherever and whenever they could.

It’s the story of the Stonewall protests, when a group of citizens — (applause) — when a group of citizens with few options, and fewer supporters stood up against discrimination and helped to inspire a movement.  It’s the story of an epidemic that decimated a community — and the gay men and women who came to support one another and save one another; who continue to fight this scourge; and who have demonstrated before the world that different kinds of families can show the same compassion in a time of need.  (Applause.)  And it’s the story of the Human Rights Campaign and the fights you’ve fought for nearly 30 years: helping to elect candidates who share your values; standing against those who would enshrine discrimination into our Constitution; advocating on behalf of those living with HIV/AIDS; and fighting for progress in our capital and across America.  (Applause.)

This story, this fight continue now.  And I’m here with a simple message:  I’m here with you in that fight.  (Applause.)  For even as we face extraordinary challenges as a nation, we cannot — and we will not — put aside issues of basic equality. I greatly appreciate the support I’ve received from many in this room.  I also appreciate that many of you don’t believe progress has come fast enough.  I want to be honest about that, because it’s important to be honest among friends.

Now, I’ve said this before, I’ll repeat it again — it’s not for me to tell you to be patient, any more than it was for others to counsel patience to African Americans petitioning for equal rights half a century ago.  (Applause.)  But I will say this:  We have made progress and we will make more.  And I think it’s important to remember that there is not a single issue that my administration deals with on a daily basis that does not touch on the lives of the LGBT community.  (Applause.)  We all have a stake in reviving this economy.  We all have a stake in putting people back to work.  We all have a stake in improving our schools and achieving quality, affordable health care.  We all have a stake in meeting the difficult challenges we face in Iraq and Afghanistan.  (Applause.)

For while some may wish to define you solely by your sexual orientation or gender identity alone, you know — and I know — that none of us wants to be defined by just one part of what makes us whole.  (Applause.)  You’re also parents worried about your children’s futures.  You’re spouses who fear that you or the person you love will lose a job.  You’re workers worried about the rising cost of health insurance.  You’re soldiers.  You are neighbors.  You are friends.  And, most importantly, you are Americans who care deeply about this country and its future.  (Applause.)

So I know you want me working on jobs and the economy and all the other issues that we’re dealing with.  But my commitment to you is unwavering even as we wrestle with these enormous problems.  And while progress may be taking longer than you’d like as a result of all that we face — and that’s the truth — do not doubt the direction we are heading and the destination we will reach.  (Applause.)

My expectation is that when you look back on these years, you will see a time in which we put a stop to discrimination against gays and lesbians — whether in the office or on the battlefield.  (Applause.)  You will see a time in which we as a nation finally recognize relationships between two men or two women as just as real and admirable as relationships between a man and a woman.  (Applause.)  You will see a nation that’s valuing and cherishing these families as we build a more perfect union — a union in which gay Americans are an important part.  I am committed to these goals.  And my administration will continue fighting to achieve them.

And there’s no more poignant or painful reminder of how important it is that we do so than the loss experienced by Dennis and Judy Shepard, whose son Matthew was stolen in a terrible act of violence 11 years ago.  In May, I met with Judy — who’s here tonight with her husband — I met her in the Oval Office, and I promised her that we were going to pass an inclusive hate crimes bill — a bill named for her son.  (Applause.)

This struggle has been long.  Time and again we faced opposition.  Time and again, the measure was defeated or delayed. But the Shepards never gave up.  (Applause.)  They turned tragedy into an unshakeable commitment.  (Applause.)  Countless activists and organizers never gave up.  You held vigils, you spoke out, year after year, Congress after Congress.  The House passed the bill again this week.  (Applause.)  And I can announce that after more than a decade, this bill is set to pass and I will sign it into law.  (Applause.)

It’s a testament to the decade-long struggle of Judy and Dennis, who tonight will receive a tribute named for somebody who inspired so many of us — named for Senator Ted Kennedy, who fought tirelessly for this legislation.  (Applause.)  And it’s a testament to the Human Rights Campaign and those who organized and advocated.  And it’s a testament to Matthew and to others who’ve been the victims of attacks not just meant to break bones, but to break spirits — not meant just to inflict harm, but to instill fear.  Together, we will have moved closer to that day when no one has to be afraid to be gay in America.  (Applause.) When no one has to fear walking down the street holding the hand of the person they love.  (Applause.)

But we know there’s far more work to do.  We’re pushing hard to pass an inclusive employee non-discrimination bill.  (Applause.)  For the first time ever, an administration official testified in Congress in favor of this law.  Nobody in America should be fired because they’re gay, despite doing a great job and meeting their responsibilities.  It’s not fair.  It’s not right.  We’re going to put a stop to it.  (Applause.)  And it’s for this reason that if any of my nominees are attacked not for what they believe but for who they are, I will not waver in my support, because I will not waver in my commitment to ending discrimination in all its forms.  (Applause.)

We are reinvigorating our response to HIV/AIDS here at home and around the world.  (Applause.)  We’re working closely with the Congress to renew the Ryan White program and I look forward to signing it into law in the very near future.  (Applause.)  We are rescinding the discriminatory ban on entry to the United States based on HIV status.  (Applause.)  The regulatory process to enact this important change is already underway.  And we also know that HIV/AIDS continues to be a public health threat in many communities, including right here in the District of Columbia.  Jeffrey Crowley, the Director of the Office of National AIDS Policy, recently held a forum in Washington, D.C., and is holding forums across the country, to seek input as we craft a national strategy to address this crisis.

We are moving ahead on Don’t Ask Don’t Tell.  (Applause.)  We should not be punishing patriotic Americans who have stepped forward to serve this country.  We should be celebrating their willingness to show such courage and selflessness on behalf of their fellow citizens, especially when we’re fighting two wars.  (Applause.)

We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford — for our military’s integrity — to force those willing to do so into careers encumbered and compromised by having to live a lie. So I’m working with the Pentagon, its leadership, and the members of the House and Senate on ending this policy.  Legislation has been introduced in the House to make this happen.  I will end Don’t Ask, Don’t Tell.  That’s my commitment to you.  (Applause.)

It is no secret that issues of great concern to gays and lesbians are ones that raise a great deal of emotion in this country.  And it’s no secret that progress has been incredibly difficult — we can see that with the time and dedication it took to pass hate crimes legislation.  But these issues also go to the heart of who we are as a people.  Are we a nation that can transcend old attitudes and worn divides?  Can we embrace our differences and look to the hopes and dreams that we share?  Will we uphold the ideals on which this nation was founded:  that all of us are equal, that all of us deserve the same opportunity to live our lives freely and pursue our chance at happiness?  I believe we can; I believe we will.  (Applause.)

And that is why — that’s why I support ensuring that committed gay couples have the same rights and responsibilities afforded to any married couple in this country.  (Applause.)  I believe strongly in stopping laws designed to take rights away and passing laws that extend equal rights to gay couples.  I’ve required all agencies in the federal government to extend as many federal benefits as possible to LGBT families as the current law allows.  And I’ve called on Congress to repeal the so-called Defense of Marriage Act and to pass the Domestic Partners Benefits and Obligations Act.  (Applause.)  And we must all stand together against divisive and deceptive efforts to feed people’s lingering fears for political and ideological gain.

For the struggle waged by the Human Rights Campaign is about more than any policy we can enshrine into law.  It’s about our capacity to love and commit to one another.  It’s about whether or not we value as a society that love and commitment.  It’s about our common humanity and our willingness to walk in someone else’s shoes:  to imagine losing a job not because of your performance at work but because of your relationship at home; to imagine worrying about a spouse in the hospital, with the added fear that you’ll have to produce a legal document just to comfort the person you love — (applause) — to imagine the pain of losing a partner of decades and then discovering that the law treats you like a stranger.  (Applause.)

If we are honest with ourselves we’ll admit that there are too many who do not yet know in their lives or feel in their hearts the urgency of this struggle.  That’s why I continue to speak about the importance of equality for LGBT families — and not just in front of gay audiences.  That’s why Michelle and I have invited LGBT families to the White House to participate in events like the Easter Egg Roll — because we want to send a message.  (Applause.)  And that’s why it’s so important that you continue to speak out, that you continue to set an example, that you continue to pressure leaders — including me — and to make the case all across America.  (Applause.)

So, tonight I’m hopeful — because of the activism I see in this room, because of the compassion I’ve seen all across America, and because of the progress we have made throughout our history, including the history of the movement for LGBT equality.

Soon after the protests at Stonewall 40 years ago, the phone rang in the home of a soft-spoken elementary school teacher named Jeanne Manford.  It was 1:00 in the morning, and it was the police.  Now, her son, Morty, had been at the Stonewall the night of the raids.  Ever since, he had felt within him a new sense of purpose.  So when the officer told Jeanne that her son had been arrested, which was happening often to gay protesters, she was not entirely caught off guard.  And then the officer added one more thing, “And you know, he’s homosexual.”  (Laughter.)  Well, that police officer sure was surprised when Jeanne responded, “Yes, I know.  Why are you bothering him?”  (Applause.)

And not long after, Jeanne would be marching side-by-side with her son through the streets of New York.  She carried a sign that stated her support.  People cheered.  Young men and women ran up to her, kissed her, and asked her to talk to their parents.  And this gave Jeanne and Morty an idea.

And so, after that march on the anniversary of the Stonewall protests, amidst the violence and the vitriol of a difficult time for our nation, Jeanne and her husband Jules — two parents who loved their son deeply — formed a group to support other parents and, in turn, to support their children, as well.  At the first meeting Jeanne held, in 1973, about 20 people showed up.  But slowly, interest grew.  Morty’s life, tragically, was cut short by AIDS.  But the cause endured.  Today, the organization they founded for parents, families, and friends of lesbians and gays  – (applause) — has more than 200,000 members and supporters, and has made a difference for countless families across America. And Jeanne would later say, “I considered myself such a traditional person.  I didn’t even cross the street against the light.”  (Laughter.)  ”But I wasn’t going to let anybody walk over Morty.”  (Applause.)

That’s the story of America:  of ordinary citizens organizing, agitating and advocating for change; of hope stronger than hate; of love more powerful than any insult or injury; of Americans fighting to build for themselves and their families a nation in which no one is a second-class citizen, in which no one is denied their basic rights, in which all of us are free to live and love as we see fit.  (Applause.)

Tonight, somewhere in America, a young person, let’s say a young man, will struggle to fall to sleep, wrestling alone with a secret he’s held as long as he can remember.  Soon, perhaps, he will decide it’s time to let that secret out.  What happens next depends on him, his family, as well as his friends and his teachers and his community.  But it also depends on us — on the kind of society we engender, the kind of future we build.

I believe the future is bright for that young person.  For while there will be setbacks and bumps along the road, the truth is that our common ideals are a force far stronger than any division that some might sow.  These ideals, when voiced by generations of citizens, are what made it possible for me to stand here today.  (Applause.)  These ideals are what made it possible for the people in this room to live freely and openly when for most of history that would have been inconceivable.  That’s the promise of America, HRC.  That’s the promise we’re called to fulfill.  (Applause.)  Day by day, law by law, changing mind by mind, that is the promise we are fulfilling.

Thank you for the work you’re doing.  God bless you.  God bless America.  (Applause.)

Below are a few of the most memorable speeches.  David Mixner and Cleve Jones were both incredibly moving and reflected the history of the movement that many of us of the “Prop 8 generation” cannot begin to fully comprehend.  This context is key for all of us to understand moving forward.

I felt there was a good mix of criticism of President Obama and also understanding of the position he is in and the role we must play in the push for equal rights.  We can’t expect them to be delivered to us, but we need to pressure our existing policymaker allies and make new ones.  We’re lucky to have a true friend in the White House, but that isn’t enough for immediate action (more on Obama’s saturday night speech to the HRC).

There were also a good number of digs made at Barney Frank who had previously said that “the only thing they’re going to be putting pressure on is the grass,” not the policymakers who work in the Capitol.  What I think he underestimated when he said this was the role it could play to rally a base that is still wounded in the post-Prop 8 world.  To me, this was as well worth the time and energy of the organizers if only for the sense of community and camaraderie that it created.

I was disappointed in the lack of discussion of the referendums in Maine and Washington.  I feel like there is a lack of energy around these two races and can’t help but wonder if it is for fear of putting our emotional eggs in one basket (or two).  A lot of people were really burned in the wake of Prop 8, and I question if people are afraid of the outcome in Maine and Washington.

Here are are my favorite speeches from the day (and a few of my pictures).  I’m disappointed to not have the speeches of the four young people aren’t online yet–they were truly remarkable.

There are probably thousands of photos of this dog on Flickr right now

David Mixner on the need to remember our history and “the shoulders of giants” on which we stand:

Cynthia Nixon:

Cleve Jones (after an intro speaker):

Julian Bond in 2 parts (as eloquent and inspiring as always):

Dustin Lance Black:

More video is available here

The Defense of Marriage Act was passed in 1996 as a response to a Hawaii Supreme Court decision, which applied strict scrutiny to the sexual orientation class.  As it appeared Hawaii would legalize same-sex marriage, DOMA was intended to shield other states from being forced to recognize Hawaii’s same sex-marriages.  The act allows states to recognize out of state same sex marriages, but definitively notes that states are not forced to.  DOMA also defines “marriage” as reserved for opposite sex couples on the federal level.

Within the federal courts, judges have refused to create precedent on the law, and the Supreme Court has consistently refused to review it–essentially deferring to Congress on the matter.   With President Obama’s known (but slow to act) opposition to the law and Democrats controlling both houses of Congress, this reluctance might be a blessing in disguise.  If the court were to rule on DOMA, with its conservative make up, it could strike a significant blow to gay marriage.  Allowing time to pass before the court addresses DOMA could allow either Congress to repeal the act, or the make-up of the Court to change.

Because of the reluctance of the Court to review DOMA it is unlikely that Massachusetts’ recent lawsuit will ever see the High Court Docket, but just in case, here are the main arguments against it:

Fundamental Liberty Interest–Marriage has been defined by the court in Loving v. Virginia as “one of the ‘basic civil rights of man,’ fundamental to our very existence.”  An argument could be made that DOMA restricts this right and should be held to a strict scrutiny test.  With the implication in Lawrence that morality is no longer a legitimate government interest, its holding could be extended to wipe out DOMA as unconstitutional.

The Iowa Approach–Just like in Iowa, where they classified sexual orientation with an intermediate scrutiny, an argument could be made following Lawrence that sexual orientation as a class prompts a higher level of scrutiny and therefore DOMA should be ruled unconstitutional.

Full Faith and Credit–Article IV Section 1 of the Constitution requires that states recognize, “public acts, records, and judicial proceedings” of the other states.  This would seem to include marriage licenses as it includes other types of licenses and contracts.  DOMA’s wording inherently contradicts this clause of the constitution and is perhaps the most obvious argument against the constitutionality of DOMA.

Two weeks ago (June 26th) marked the six-year anniversary of the Lawrence v. Texas (539 U.S. 558) decision, a landmark case for gay rights in the United States.  As a reminder of that decision, and to really understand the law behind and surrounding DOMA a here is a quick Constitutional Law primer.

The Supreme Court has created constitutionality tests for laws that govern specific groups of people (or “classes”), and specific rights (or “fundamental liberty interests”).  Often these classes are defined by characteristics, which delineate groups such as race, gender, or sexual orientation.  The tests typically fall into two categories, strict scrutiny and rational basis.  Strict scrutiny requires a higher level of justification to rule that a law discriminates against one class of people, and cases that call for a strict scrutiny review are often deemed unconstitutional.  Rational basis grants extensive leeway to lawmakers as long as the law serves a “legitimate state interest;” therefore, these laws are often considered constitutional.  Typically which standard of review the court decides to use determines the outcome of the case.  Although the court has sometimes employed an intermediate scrutiny that falls between rational basis and strict scrutiny, the Court has been reluctant and vague in defining it.

If the court determines a specific right (i.e. the right to privacy) as a “fundamental liberty interest” the court applies strict scrutiny, and if not, rational basis review.  When dealing with a “class” of people, the court has sifted out different groups for different tests.  Laws involving race, religion, or national origin receive strict scrutiny while laws dealing with gender receive intermediate scrutiny.  To determine whether a group should receive strict scrutiny the court looks to if the group is 1) “discrete” or “insular” minority with 2) an immutable trait and has a 3) shared history or discrimination and 4) lack the political power to protect themselves.

When it comes to sexual orientation, the Court has been all over the map.  In 1986, in Bowers v. Hardwick (478 U.S. 186), the court defined the right to homosexual sodomy.  The court said this was not a “fundamental liberty interest” and upheld the law banning it because the state’s regulation of morality was a rational basis for the law.  Ten years later in Romer v. Evans (517 U.S. 620) the court struck down a Colorado law, which made it illegal for municipalities to offer special protections to sexual orientation.  In his opinion, Justice Kennedy signaled a change in the courts attitude towards homosexuals and seemed almost appalled by the law.  Romer though, left the question of sexual orientation as a class up in the air.  It appeared that Kennedy had used a heightened and tougher rational basis review to strike down the law without overturning Bowers.  This approach was unorthodox and left the issue of sexual orientation as vague and ambiguous.

Finally in 2003, Kennedy, again writing for majority, overturned the Bowers ruling in the Lawrence decision.  The Court said that adult, consensual, intimate conduct was protected and hinted that morality was no longer a legitimate state interest.  Again a heightened rational basis review was used but at the same time conspicuously avoiding the language of a “class” or of a “fundamental liberty interest”.  This approach prompted Justice Scalia in dissent to note, this was “an unheard-of form of rational-basis review that will have far-reaching implications.”  Regardless, it signaled an increase in protection for sexual orientation under the Constitution.  Kennedy was cautious though, and backed away from legitimizing gay marriage specifically.

Perhaps more curious was Justice O’Connor’s concurrence (essentially a second opinion which doesn’t carry the legal weight of the decision of the majority), which looked at sexual orientation as a class and cast some doubt on laws that differentiate between heterosexuals and homosexuals.  Despite this, O’Conner too stated that if the protecting traditional marriage would pass a rational basis review.  Still, it was this argument made by O’Conner that was expanded in the recent Iowa decision to legalize same-sex marriage.

Part 2 continues here…

A special thank you shout-out to Steve, second year law student #2.

Senator John Kerry threw his support behind the lawsuit filed earlier today by Massachusetts Attorney General Martha Coakley which challenges the constitutionality of the Defense of Marriage Act. Senator Kerry also supported the lawsuit filed in March by 15 Massachusetts residents in coordination with GLAD. In 1996, Senator Kerry was the only Senator running for reelection who voted against DOMA, and he has continued to speak out against DOMA and its harmful effects ever since.

The full release is below the jump.  You can view the entire Massachusetts complaint here. (h/t Nick)

KERRY SUPPORTS A.G. COAKLEY’S LAWSUIT FILED TODAY CHALLENGING DOMA

BOSTON – Senator John Kerry threw his support behind the lawsuit filed earlier today by Massachusetts Attorney General Martha Coakley which challenges the constitutionality of the Defense of Marriage Act. Senator Kerry also supported the lawsuit filed in March by 15 Massachusetts residents in coordination with GLAD. In 1996, Senator Kerry was the only Senator running for reelection who voted against DOMA, and he has continued to speak out against DOMA and its harmful effects ever since.

“The courts have always been the last resort for those seeking justice under the law, and I am proud to stand with Attorney General Coakley and wholeheartedly support her efforts to right a wrong that passed the Senate over the objections of both of Massachusetts’ Senators,” said Senator Kerry today .

“In 1996, I voted against the so-called Defense of Marriage Act not just because I believed it was nothing more than a fundamentally political ploy to divide Americans, but because it is unconstitutional. Thirteen years later, I still defy you to find a single Senator who can credibly argue that it is within the Senate’s power to strip away the word or spirit of a constitutional clause by simple statute. DOMA should never have passed and should never have become the law of the land. Unconstitutional and fundamentally unfair, today the human cost is especially clear and compelling. Denying same sex couples the same rights and protections under the law as enjoyed by opposite sex couples has absolutely nothing to do with defending marriage. This lawsuit is a necessary step in ensuring everyone in Massachusetts can live their lives and raise their families secure in the knowledge that their commitment to each other doesn’t make them any less an American than their heterosexual families, friends and neighbors,” Kerry continued.

The following is an excerpt from Kerry’s speech on the floor of the United States Senate in 1996 in which he first argued that DOMA was unconstitutional:

“I oppose this legislation because not only is it meant to divide Americans, but it is fundamentally unconstitutional, regardless of what your views are. DOMA is unconstitutional. There is no single Member of the U.S. Senate who believes that it is within the Senate’s power to strip away the word or spirit of a constitutional clause by simple statute.

“DOMA would, de facto, add a section to our Constitution’s full faith and credit clause, article IV, section 1, to allow the States not to recognize the legal marriage in another State. That is in direct conflict with the very specific understandings interpreted by the Supreme Court of the clause itself.

“The clause states–simple words–`Full faith and credit shall be given’–not `may be given,’ `shall be given’–`in each State to the public Acts, Records and judicial Proceedings of every other State.’ It says: And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

“It doesn’t say no effect. It doesn’t say can nullify. It doesn’t say can obviate or avoid. It says it has to show how you merely procedurally prove that the act spoken of has taken place, and if it has taken place, then what is the full effect of that act in giving full faith and credit to that State.

“I think any schoolchild could understand that allowing States to not accept the public act of another is the exact opposite of what the Founding Fathers laid forth in the clause itself. Let me repeat: Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

“Now, if we intend to change it–and that is a different vote than having the constitutional process properly adhered to. But it seems to me that what Congress is doing is allowing a State to ignore another State’s acts, and every law that Congress has ever passed has invoked the full faith and credit of another State’s legislation.

“All of these laws share a basic common denominator. They all implement the full faith and credit mandate. They do not restrict it. Not once has it been restricted in that way. For example, the Parental Kidnapping Prevention Act of 1990 provided the States have to enforce child custody determinations.