Four Arguments Against Same-Sex Marriage Rejected Today in a Massachusetts Court

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07/09/2010 2:32 PM |


Judge Joseph Tauro of Massachusetts’s US District Court today essentially ruled that the Defense of Marriage Act is unconstitutional. The case, Gill v. Office of Personnel Management, concerned couples married under the state’s same-sex marriage law, and denied federal benefits, for healthcare, retirement and other assorted federally administered plans, by DOMA’s definition of marriage as exclusively between a man and a woman. Judge Tauro found, overwhelmingly, for the plaintiffs, finding “‘no fairly conceivable set of facts that could ground a rational relationship’ between DOMA and a legitimate government objective.”

This is a major precedent for gay civil rights—it declares that the federal government must recognize state laws permitting gay unions, and demolishes many of the legal (and civil) justifications for denying gay marriage. The House Judiciary Committee’s preliminary Report on the Defense of Marriage Act named four objectives for the act, Judge Tauro notes, before going on to debunk each in turn. They were:

“(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.”

1. The Defense of Marriage Act encourages responsible procreation and child-bearing.

Judge Tauro finds no support for “the notion that denying federal recognition to same-sex marriages might encourage responsible procreation,” obviously. He cites “a consensus… 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.” (His citations include the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child
& Adolescent Psychiatry, and the Child Welfare League of America.) But even if this were not the case, he continues, “Such denial [of same-sex marriage] does nothing to promote stability in heterosexual parenting,” rejecting the standard corruption-by-social-osmosis argument, before moving on to note that, of course, “an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.”

2. The Defense of Marriage Act defends and nurtures the institution of traditional heterosexual marriage.

In response, Judge Tauro offers a modified version of the “surely straight couples won’t stop loving each other because of gay marriage” argument: “denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.” (There’s no citation here, because there was obviously no compelling amicus brief arguing that this could possibly be the case.) “What remains, therefore,” he continues, “is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable”. The concept of equal protection is quickly invoked.

3. The Defense of Marriage Act defends traditional notions of morality.

Here, Judge Tauro quotes John Paul Stevens, dissenting in Bowers v. Hardwick, in which the Burger Court upheld the constitutionality of state anti-sodomy laws: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”. (The Stevens dissent actually continued: “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”)

4. The Defense of Marriage Act preserves scarce resources.

Judge Tauro notes that, while saving money is a legitimate government interest, he can “discern no principled reason to cut government expenditures at the particular expense” of same-sex couples due benefits, except “apart from Congress’ desire to express its disapprobation of same-sex marriage.” This, obviously, is not a legitimate reason to deny benefits to people legally married in the state of Massachusetts. (He also notes, in a brutal footnote, that Congress didn’t actually care about this reason, actually rejecting a proposed financial-impact study before voting on the bill.)


The Obama administration’s Justice Department had to defend the act in this case, though admitting they opposed it as a matter of policy; in overruling their defenses of the act—basically, the DOJ argued that this aggressively assertive way of defining marriage was a way to keep the federal government out of a debate happening on the state level—Judge Tauro also offered some compelling jurisprudential rhetoric in favor of allowing gay marriage. At Slate, Linda Hirshman unpacks the implications.