A federal appeals court in Boston found on Thursday that the Defense of marriage Act (DOMA) defining marriage as a union between a man and a woman unconstitutionally denies federal benefits to lawfully married same-sex couples.
The ruling sets the stage for a same sex marriage showdown in the Supreme Court.
Conservatives should not really be surprised that an appeals court in the liberal 1st Circuit has thrown out DOMA, especially given that the Obama administration announced that it deemed the law unconstitutional and would not defend it.
The major consideration conservatives now have is, “what happens next?”
The 1st Circuit Court of Appeals said their ruling would not take effect until the Supreme Court has had an opportunity to review the law. The plaintiffs' demand to receive federal tax and Social Security benefits will remain on hold pending any appeal.
In making the ruling, the court noted that the Supreme Court has never said that the Constitution requires states to permit same-sex marriages. Therefore, their ruling in the Massachusetts case was limited to arguments “that do not presume or rest on a constitutional right to same-sex marriage.”
But isn’t that where advocates of same sex marriage are taking this?
Dale Schowengerdt, a lawyer for the Alliance Defense Fund -- a Christian advocacy group that has defended California's gay marriage ban in court -- noted that, “Under this [the court’s] rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too.”
Thus the California Supreme Court could reason that California’s same sex marriage ban was unconstitutional, “because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.” In other words, the law should be free of value judgments about human behavior.
What the court in Massachusetts and courts in California that have also acted to strike down DOMA and bans on same sex marriage are really saying is that the government must divorce law from morality or moral standards.
If the argument that the law should be values-free holds, then that means any behavior consenting adults freely agree to should be legal. At some point, Americans must affirm that the law is a means of organizing society to reflect a certain set of values. Conservatives must begin to make the case now that if the law and moral judgment are divorced, then rather than protecting society’s most fundamental institutions -- such as marriage and the family -- the law will become nothing more than a means of picking winners and losers in commercial relationships.