A portion of the Defense Of Marriage Act has been ruled unconstitutional by the Boston based 1st Circuit Court of Appeals.
The court ruled that the portion of the law which bars legally married same sex couples from obtaining the same benefits as their male/female counterparts was not permissable.
Judge Michael Boudin, a George H W Bush appointee wrote
“Many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”
I am sure there are some who will find this ruling upsetting, but I can’t see how the court could have done anything else in this case. If a state has same sex marriage then that marriage is as valid as any other and is entitled to the same rights and privileges.
The court did not rule on the portions of the law providing that one state does not have to recognize same sex marriages from another.
While this is a step of progress I am somewhat disappointed the court did not take a bolder step.
It has long been my view that the entire law fails on the basis of a principle called enumerate powers. Simply put the rule is that the Congress can act under the powers granted to it (or enumerated) in the Constitution.
The federal government has never had the authority to legislate directly on the issue of marriage, a traditional arena of state power. The Constitution does not grant it any authority on the issue (show me where the word appears in Article One).
Because of this I feel the entire law is a violation of the Enumerated Powers rule.
Further, I would also argue that the Full Faith and Credit clause also makes the section allowing one state to refuse to recognize marriages from another state also makes that section invalid. I know there are a line of cases which suggest otherwise but they were wrongly decided, based on pressure from the South to be able to refuse to recognize interracial marriages.
But it is a step in the right direction.