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The DoMA decision

July 8, 2010 |  5:35 pm

I'm always glad to see same-sex marriage take a step forward, but there's still a measure of irony in a federal judge's ruling today in Boston that the federal Defense of Marriage Act is unconstitutional because it interferes with states' authority to regulate marriage. The act stipulates that the federal government does not recognize same-sex marriage. States are free to make their own decisions on the matter, but they also are free not to recognize such marriages performed in other states.

Meanwhile, we're still waiting for a federal judge in San Francisco to rule on whether Proposition 8 is unconstitutional, but the argument there is practically the reverse of the one in the DoMA case. Opponents of Proposition 8 say that recognizing marriage only between a man and a woman violates the U.S. Constitution, which is effectively arguing for federal authority to require states to allow same-sex marriage. In fact, the Boston judge ruled in a separate but related case that DoMA also violates the equal-rights clause of the Constitution.

One issue involves the powers of Congress, the other a possible case of federal unconstitutionality. But you could understand someone getting confused about who holds the marriage reins. Obviously, if the Constitution (as interpreted by the federal courts) mandates that states must stop discriminating against homosexuals in marriage laws, states have no authority to ignore it, any more than they should have the right not to allow couples of different races to wed. It's a day the editorial board would like to see. 

-- Karin Klein

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