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The Defense of Marriage Act (DOMA) is Unconstitutional

A federal district court judge sitting in Boston, Massachusetts has recently ruled that Section 3 of the Defense of Marriage Act, which establishes the federal government's definition of marriage as "between one man and one woman," is unconstitutional. The context of the fight is important, however, in understanding the subtleties and potential outcomes of this ruling. First of all, let me say that personally, and to the extent that I speak for my law firm, we are fully in support of full...

A federal district court judge sitting in Boston, Massachusetts has recently ruled that Section 3 of the Defense of Marriage Act, which establishes the federal government's definition of marriage as "between one man and one woman," is unconstitutional.

The context of the fight is important, however, in understanding the subtleties and potential outcomes of this ruling.

First of all, let me say that personally, and to the extent that I speak for my law firm, we are fully in support of full equal marriage rights across the United States.

In order to be a lawyer in New Jersey, and indeed, I presume in every State of the Union, an attorney must swear an oath to uphold and defend the Constitution against all enemies, both foreign and domestic. Anyone who seeks to interpret the Constitution for religious reasons, or in support of narrowly political points of view, is, in my view, an enemy and we must protect the Constitution against those people. I can understand non-lawyer religious bigots, zealots and crazies arguing against full equal marriage rights, even though, when pressed, not one of these people can explain how opening marriage to others affects their marriage.

I cannot understand, however, or, more properly, can't stand, when attorneys, who have sworn this oath, put aside the oath and pick up a religious book and argue that the religious book, and not the Constitution, ought to ground civil law.

Now that that is out of the way, let's talk about this ruling and what it actually means.

The judge was ruling that each State has the right to define marriage on its own and that the federal government's attempt to usurp that power was an unconstitutional "over-reaching."

In the context of Massachusetts, therefore, this was a "good" ruling, in the sense that the Commonwealth of Massachusetts has already stated that it wishes to define marriage in terms of civil rights rather than in terms of gender or religious rights. On the other hand, to the extent that this ruling survives through the appellate process and even through and including the Supreme Court, it doesn't necessarily mean good times are ahead across the entire Untied States.

Put bluntly, since I don't have to worry about upsetting people in conservative States, there are States in this country where people have backward ways of thinking, where religious policy infiltrates and poisons civil policy, and where people feel afraid of any sort of change or granting of civil liberties to gay human beings. In those States, I have no doubt that, if this ruling in Boston survives the process, they will seize upon it as an opportunity to "protect" marriages against the "gay agenda."

That having been said, I am not sure whether or not this ruling will survive the appellate process. The next step is the circuit court of appeals, which may or may not adopt the district court's ruling and/or reasoning for that ruling. Even if the circuit court does so, the next step of course would be the United States Supreme Court, which is currently "right leaning."

So I don't know how to feel about this ruling, really. On the one hand, it's a good thing for the people of Massachusetts and it's a good thing for any State which, if this ruling survives, chooses to use it in order to fairly and decently define marriage for the people of a particular State. On the other hand, I can see, if it survives, this ruling being used as a weapon by conservative States.

I am a straight person who is married with a family. My marriage is not threatened by broadening the definition of marriage to include two people of the same sex who are in love. If someone paid me 10 million dollars, I couldn't make any good faith argument that my marriage would be in any way affected by such an opening of the definition. I therefore question the integrity and honesty of anyone who attempts to make that argument against civil and equal rights.

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