On Saving Us From The Immoral, Or “Ready, Fire…Aim!”

It was about a week ago that we saw the ruling throwing out California’s Prop 8; that decision has now been appealed, and we will see, at some point in the future, how the 9th Circuit Court of Appeals handles the matter.

A couple of days later, I had a story up that walked through the ruling, describing the tactics used by the Prop 8 proponents, which, in the opinion of the Judge who looked at the evidence, were basically to try to scare Californians into thinking that gay people, once they’re able to get gay married, will somehow now be free to evangelize your kids and make them gay, too.

In the course of answering comments on the several sites where the story is up, I noticed that there were those who felt the Bible should be guiding our thinking here…that if it did, we would be better off than where we are today, with all those immoral gay people running around free to do all those immoral gay things.

This led me to an obvious question: are those who have been using the Bible as a sort of “divining rod” to figure out who is immoral and who is not…actually any good at it?

There are those who seem surprised that a defective rattrap like the Mulford law could be endorsed by the legislature of a supposedly progressive, enlightened state. But these same people were surprised when [California’s] Proposition 14, which reopened the door to racial discrimination, was endorsed by the electorate last November by a margin of nearly 2 to 1.

--From “The Nonstudent Left”, by Hunter S. Thompson, published in “The Nation”, September 27, 1965 (links were added for this story)

So as I said above, there are lots of folks who are just absolutely convinced that the Bible can effectively help us figure out who is being moral and who is being immoral; others are convinced that, with the proper application of the “Judeo-Christian values” that form the basis of our system of Government, we can protect ourselves from the immorality that constantly threatens out American Way Of Life.

Let’s see how that’s been working out.

For about 400 years Christians tried, and tried again, to save Jerusalem and the Holy Land from the immoral Muslims; we know those efforts as the Crusades. In the effort to save the world from that immorality thousands upon thousands of Christians and Muslims were killed in war, thousands more Jews were killed who just kind of happened to turn up along the way, and in 1212, thousands of children either did or did not participate in another Crusade that led virtually all of them into either death or slavery.

Still another Crusade ended the immorality of rivals competing for Venice’s monopoly control over the marketing of Byzantine trade goods. (That took two years, from 1202 to 1204 and led to the sacking of Constantinople).

Here’s what happened with yet another effort to protect Europe from the immoral:

When national feeling and the adoption of religious ideas later associated with the Protestants made Bohemia a threat to European stability, at least in the eyes of the Holy Roman Empire and the pope, a Crusade was declared against Hussites, who were named for John Hus, their first leader. Some decried this as a false Crusade, saying that greed was being sanctified by ecclesiastical banners. But most of Europe endorsed the brutal warfare and the reimposition of Catholicism. This was, in their eyes, a Crusade for Christ’s church and people, as valid as any of the expeditions to the Holy Land.

It turns out that believing in “ecclesiastical poverty” was another one of those immoral things that had to be stamped out to protect the rest of us…and that’s why certain French Christians were subjected to the Inquisition, starting in the 1300s.

Being a Jew could be immoral, too, which is why officials of the Spanish Inquisition killed somewhere between 10,000 and 600,000 of those who refused to convert to Christianity as the Moors were being driven out of Spain.

Ever heard of Galileo? He became famous because he built telescopes that could prove that the Earth orbits the Sun…which was immoral because it was heretical (which essentially means the Church, who told everyone else what the Bible really means, did not agree). He did not have a fork shoved through his chest and jaw to shut him up before he was burned at the stake for those beliefs because he had friends in high places who could protect him.

Ever heard of Father Giordano Bruno? He believed the same things, he had no friends in high places…and he did get the Heretic's Fork, after which he was burned at the stake to protect the public from his particular brand of immorality.

Sorcery was immoral from the beginning for Church theologians, but magic was OK. Believing in witchcraft was immoral, before 1400, and those who believed in witches, the Bible told us, were heretics who needed to be punished for the protection of the rest of us…but by 1487, when the Malleus maleficarum was published by the Catholic Church, practicing the witchcraft which recently didn’t even exist was now considered idolatry and apostasy, punishable under law…and all that is a long way of saying that thousands and thousands and thousands of “witches” were killed, on orders of the Church and local authorities, partially to try and stop the bubonic plague, which, as the Bible taught us, was being caused by witchcraft…which only recently, the Bible taught us, didn’t even exist.

Do you know what a Bruloir might be?

It’s an oven that is specially designed to cook the living person inside in the most painful way possible (you put them in a cold oven, then heat it up)…and it really gained popularity as a moral means of killing those plague-promoting witches in the second half of the 16th Century.

I could go on and on and on…but let’s have a look at where we’ve been so far, and see what we can learn:

If you believed that the Earth orbits the Sun, and you taught that to others, you were immoral, a heretic, and a menace to society, and had to be exterminated for the good of the rest of us.

If you believed that being Islamic and living in Jerusalem was no big deal…you were immoral, a heretic, and a menace to society, and for hundreds of years entire Christian armies were going to try to exterminate you for the good of the rest of us.

Protestant?
Immoral, at least once.

Jew?
Immoral, at least twice.

Exterminations all around, please.

When the witches caused crop failures, or the plague, or engaged in their orgiastic behavior, we were darn lucky to have the Bruloir available for the protection of our collective morals…eh?

Even to this very day, theologians warn us to beware of rock ‘n’ roll, I kid you not, because “these musicians have been primarily responsible for the dramatic rise in Satanic practices among young people today.”

And now it’s the damn homos, wanting to destroy our American Judeo-Christian Bible Law And Morality with their efforts to get fag married and turn our babies into lesbian cannibals…even though Pastor Fred Phelps very clearly tells us that God hates Fags….which they somehow can’t seem to understand, which is why we have to pass laws to try and protect our Judeo-Christian values.

Now I don’t mean to rain on anyone’s parade here, and I know this is a great campaign issue for Republicans, but if you’re standing in front of the “Protecting Morality Scoreboard”, and the score reads, say, 0-11, and you’re the 11, and every time you’ve screwed it up so far piles of bodies end up strewn all over the place…and now you’re here to tell us that God and the Bible want to shut down the same-sex weddings because you just absolutely know that they’re a moral threat to society…why, exactly, are we supposed to believe you have any idea what you’re talking about?

On A Pair Of Victories, Part Two, Or, DOMA Ruled Unconstitutionally Irrational

We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.

In the first half of the conversation, we examined the ruling in Commonwealth of Massachusetts v Department of Health and Human Services (HHS), today we examine the companion case, Gill v Office of Personnel Management (OPM).

I don’t usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as “the Feds” from time to time), is not so happy at the moment.

As with last time, there’s a lot of ground to cover, and the sooner we get to it, the better.

In the companion case, Massachusetts v HHS, the Plaintiff was the State of Massachusetts, who alleged, convincingly, that the DOMA definition of “spouse” was forcing the State to illegally discriminate against its own citizens.

Today’s Plaintiffs are seven same-sex couples, all legally married in Massachusetts, and three survivors of same-sex spouses.

They all seek to overturn Section 3 of DOMA; the definitions of “marriage” and “spouse” are the issue in question.

The Feds report that Congress is acting under the authority of Article IV Section 1 of the US Constitution, which allows them to determine the “effect” of certain legal instruments issued by the various states:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

When DOMA (H.R. 3396 (104th)) was enacted, in 1996, Section 2 changed the “effect” of marriage by allowing one State, for the first time, to ignore the legal proceedings of another:

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

The Federal Government also refuses to recognize that same-sex couples are married, and over the years several of these Plaintiffs, who are federal employees, have been trying to enroll their same-sex spouses in various federal health care plans, including the surviving spouse of now-deceased former Representative Gerry Studds; all were denied.

Other plaintiffs seek certain Social Security benefits, including survivor benefits, and one seeks to have their monthly Social Security payment adjusted upward based on how much their spouse earned.

The final group of plaintiffs want to be recognized as married couples for federal income tax purposes.

The Court denied standing to Representative Studd’s spouse; this because other legal action must be concluded before this Court could act on his claims.

The Judge pointed out that 1138 various federal benefits are at issue; many of them non-monetary.

He also reviewed the statements made by various Members of Congress as DOMA was being enacted; these statements all revolved around how the moral fiber of the Nation was threatened by same-sex marriage, or something similar.

Now we need to address how Courts resolve questions related to equal protection. This, from the opinion:

“To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” But Courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, Courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class. A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest."

The Plaintiffs assert DOMA should fail under the strict scrutiny standard, and explain why...but the Judge ignores those arguments; this is because the Judge believes DOMA fails the rational basis test, which is the “easier” of the two standards:

“...a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]...

...As such, a law must fail rational basis review where the “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects...”

Attorneys for the Defendant assert that Congress wanted to achieve the following:

“...(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.”

The Court the notes that those same attorneys have now “disavowed” Congress’ stated intents in defending against these lawsuits...but that doesn’t matter, because, when passing legislation:

“...the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”

As a result, the Court will examine those proffered motivations.

The Court believes there is no truth to the idea that banning same-sex marriage somehow encourages responsible child-bearing; the Feds acknowledge the same.

“But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting.”

The Judge goes on to point out that it’s not all about procreation: childless heterosexual couples are allowed to marry, and the ability or inability to breed has never been part of deciding who can marry.

Is “traditional” marriage nurtured or protected by banning same-sex marriage?

The Court notes that telling same-sex couples they can’t “Federally” marry probably won’t make them want to marry members of a different sex...especially if they’re already married, as all these Plaintiffs are.

The Court also can’t figure out how making same-sex couples pay more income tax makes heterosexual marriages more secure.

“What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” And this the Constitution does not permit...

...Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “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....” (Emphasis is original)

With the Defendants already behind 4-0, they have presented to the Court new “rational bases” for the purposes of this litigation:

They now assert that Congress can impose the status quo through legislation until the states work it out for themselves, and that DOMA was the only way to make sure everyone gets the same federal marriage benefits; they also feel that when new social problems come along, Congress is allowed to employ an “incremental response”.

Judge Tauro disagrees. He continues a conversation he began in Massachusetts v HHS that relates the long history of marriage as a state-regulated activity. He suggests the government has no legal interest in pursuing a uniform national definition of marriage; in fact, says the Judge, the Feds have deferred to the states all along on who is married, and, with this one exception, still do.

He provides numerous current examples from law and regulation:

“...42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the Courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”)...”

Judge Tauro notes that the states were even allowed to decide for themselves the validity of interracial marriages until the 1960s:

“The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.”

Tauro disposes of this argument by reminding everyone that the question of interracial marriage was also just a bit controversial, in its time.

He then reminds us that this is the first time the Federal Government has ever defined marriage; he also notes that all previous efforts to create a Federal definition were attempted Constitutional Amendments; he assumes this was because Congress knew that absent an Amendment, they couldn’t define marriage for the states.

“...The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.”

The Defendant tries to explain that DOMA is an incremental approach, but the Court dismisses this explanation. The Judge explains that DOMA does not incrementally advance same-sex marriage; instead, it permanently denies it to the Plaintiffs.

On the other hand, the Feds do recognize any opposite-sex marriage, under any state’s laws, and there appears to be no federal consistency in how marriage is defined...except to ban same-sex marriage.

The Court provides an example: a 13- and a 14-year-old opposite-sex couple could marry in New Hampshire, and even though Judge Tauro feels no other state would sanction such a marriage, the Feds would, because New Hampshire says their married, and that’s good enough for the Federal Government.

The Feds argue for “consistency” in applying marital benefits and assert that DOMA reduces the federal administrative burden, and the Court dismisses both arguments: a consistent approach would be to treat all married couples equally, and there seems to be no extra administrative burden associated with same-sex married couples relative to opposite-sex couples when it comes to things like getting the spouse on the health insurance or processing a tax return as “married – filing jointly”.

The marriage license is the administrative issue, and that’s already been taken care of by the various states involved.

The Plaintiffs argue that DOMA actually makes things less consistent and more complex; the Judge agrees.

“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it...

...As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

Well, I’ll tell you what...this is pretty heady stuff right here: you very rarely see a Federal Judge absolutely reject the positions of the Federal Government, but in this case Judge Tauro has.

He feels that the 10th Amendment reserves to the states the right to define who may marry and how, and that this has been the case since before we sent Marines to the shores of Tripoli.

He sees the Federal Government as having provided no rational basis for DOMA, twice; in fact, he feels that the effect of DOMA is exactly the opposite of what the Government attorneys claimed was the intent of Congress at the time the law was passed.

To put it very simply, just because the majority in Congress in 1996 may not have wanted same-sex couples to marry doesn’t mean the Constitution is on their side...and all that means there is a lot of thinking going on in the Department of Justice around an appeals strategy...but we have done enough for today, so we’ll leave that discussion for another time.

On A Pair Of Victories, Part One, Or, “I DOMA Think Congress Can Define Spouse Anymore”

I have to work fast over the next two days to get you this story, but it is a good one.

We are all aware of the Federal Defense of Marriage Act (DOMA), championed by former Congressman Bob “I’m A Libertarian If It Doesn’t Involve Your Penis Or Vagina” Barr; we now have two rulings, released on the same day by the same Federal judge, that will render the Act moot, if they’re either upheld throughout the appeals process…or if the Obama Administration decides to end that appeals process right now.

There’s a lot of ground to cover, and time is short.

Let’s get to work.

This will be too much analysis for one story; we’ll be, instead, discussing the ruling in Commonwealth of Massachusetts v. Department of Health and Human Services (HHS) today; the second opinion, which decides Gill v OPM (OPM is the US Government’s Office of Personnel Management) will be the topic of tomorrow’s discussion.

The goal of the Mass v HHS lawsuit (this is a bit informal: we’ll frequently refer to Massachusetts as Mass today) is to overturn section 3 of DOMA, which defines marriage as a union between one man and one woman:

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Mass has recognized same-sex marriage since the Supreme Judicial Court Of Mass ruled on the issue in 2004; the State alleges, in this suit, that DOMA violates the US Constitution’s 10th Amendment…

“…by intruding on areas of exclusive state authority, as well as the
Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs.”

For those unaware, here’s the text of the 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Federal Government says it can regulate on this issue because of the Spending Clause, located in the US Constitution’s Article 1, Section 8:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”

We have a problem because State definition of marriage causes conflicts when the State partners with the Federal Government in various programs, for example:

--The Veterans’ Cemetery Program: the State allows same-sex couple spouses to be buried in certain military cemeteries operated in partnership with the Federal Department of Veterans’ Affairs (DVA).

The DVA objects to this arrangement, offers DOMA’s definition of “spouse” as the reason why, and says they will recover all the money they have ever transferred to the State under this program if the State agrees to bury these spouses in these cemeteries.

An actual couple has applied under the program and will be affected by all of this.

--There are a variety of implications for the Medicare program as it exists in Mass: for one, income eligibility is calculated differently for same-sex and opposite-sex couples; for another, Mass makes extra Federal tax payments related to the fact that they provide health care benefits to same-sex state worker spouses that are taxed differently than when the same benefits are provided to opposite-sex couples.

The Federal Government tried to dismiss the case altogether by claiming that none of the Plaintiffs had any “standing” before the Court.

Long story short, you have to prove “actual harm” to bring a lawsuit, and the Federal Government position is that all harms alleged by the Plaintiff are hypothetical.

Federal District Judge Joseph Tauro, of Boston, completely dismisses this argument, pointing to actual harms that have already been suffered, including denial of burial benefits and the threat of cash costs to state if Medicare funding is cut off.

“…Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarly-situated individual—being lowered into his grave at Winchendon…

…Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny…”

Let’s move right along to the Constitutional analysis:

If there is an “enumerated power” in the US Constitution’s Article 1, Section 8, or “express[ed] jurisdictional elements” in a Statute passed by Congress, then the Federal Government can regulate family law; if not, you have to go to an Article 1, Section 8 “Spending Clause” analysis.

In this case, the Federal Government claims they are entitled to regulate the Federal definition of marriage because of the power under Article 1, Section 8 to provide for the “general welfare” of the Nation.

Judge Tauro, however, notes that not all the harms alleged by Plaintiffs are spending-related: for example, provisions related to the way copyright protection and the Family Medical Leave Act work depend on the marital status of the involved parties.

“In South Dakota v. Dole, the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.”

The State claims that DOMA fails on several of these 5 elements.

---For example, getting the Federal money that is part of the partnerships we’ve been talking about requires the State to violate Section 1 of the 14th amendment, which reads as follows:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added by me)

The State alleges they are compelled to deny equal treatment to same-sex couples in order to get Medicare and veterans’ cemetery money (the Medicare money alone is about $5.5 billion a year).

The Court agrees with the State’s position on the Medicare issue; as a result there is no need to rule on the legally identical cemetery issue.

--Now we need to address the 10th Amendment analysis:

Assuming the appeals continue, this case will go to fairly conservative First Circuit, then to the Supremes. This Court, in the next section of the opinion, anticipates some of the thinking that appeals courts up the line might apply to this ruling:

“In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”

The Court agrees that tests (1) and (2) have been met. This, regarding test (2):

“State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution…

…That same-sex marriage is a contentious social issue, as the government argues, does not alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.”

The Federal Government argues that just because they didn’t pass DOMA before 1996 doesn’t mean they weren’t allowed to do so; the Court finds that since the Feds failed the Article 1, Section 8 analysis already, they still fail when they try to use the same argument now.

The Feds also tried to argue that certain immigration cases give them power to regulate definition of marriage; the Court again finds their arguments unpersuasive.

The Feds argue that Massachusetts is an employer, so they have no standing to raise a sovereignty challenge; but the Court again disagrees, and says the State, as a sovereign, is entitled to regulate its employee relations.

Now we move on to (3), the proposition that for a law to violate the 10th Amendment “…it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”

The question of what is a “traditional government function” is highly contentious in the Federal Appeals Courts; some question whether such an analysis can even be performed.

Based on First Circuit precedent, this Court will address the question of:

“…whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its separate and independent existence.”

Judge Tauro finds that DOMA fails this test; points to the same issues we’ve been discussing (the Medicare and Cemetery partnerships), and says the DOMA definition of “spouse” unacceptably restricts the State from governing itself:

“That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the “core of sovereignty retained by the States,” because “the Constitution ...divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.”

That’s a fair amount of law, all in one bite, and we have another ruling like this one tomorrow, with lots more “Strict Scrutiny” analysis…but for now, let’s stop right where we are, and we’ll all meet up here tomorrow.

On Same-Sex Inheritance, Or, "'Til Death Do We Part" Comes To Boyzone

There was a time, in the 1990s, when “boy bands” walked tall in the musical world. New stars with names like “BoyzIIMen” and “Backstreet Boys” and “*NSYNC” were everywhere to be seen, and positioned prominently within this firmament of stars was an Irish band, “Boyzone”.

One of the five members of Boyzone’s most famous lineup, Stephen Gately, died over the weekend in Mallorca, aged 33, much to the dismay of the group’s fans and friends.

Because Gately came out at the height of his career, and at considerable risk to his (and the group’s) “brand” prospects, the LBGT community is experiencing considerable dismay over the loss as well.

Today’s story, however, isn’t about any of that.

Instead, we’ll consider what’s likely to happen to Gately’s estate.

The point of the exercise? With this being one of the most prominent deaths of a gay celebrity to occur since civil commitment came to pass, and with Mr. Gately being legally committed to husband Andrew Cowles at the time of his death, it seems like a good time to examine how the law responds to these situations in the UK—and how it could work in the United States.

To get things started, a quick acknowledgement: I was unaware of Stephen Gately’s death until I saw Prince Gomolvilas’ story at the Bilerico Project (“daily experiments in LBGTQ”) describing the event. His story covers topics we won’t be covering here; I would encourage you to stop by and have a look. (Full disclosure: I’m also a continuing contributor to the Bilerico Project site.)

For those completely unaware of Boyzone’s body of work, you might wish to start with the song for which they are probably the most famous, “No Matter What”, an Andrew Lloyd Weber composition.

“You’re ‘committed’? How’s that work, exactly?”

The preliminaries out of the way, let’s talk law:

In the UK, same-sex civil commitments are already enshrined in national law and the process is fairly simple. Before either a marriage or a civil commitment can take place, advance notice must be given by both parties, in person, at the register office (analogous to a city or county clerk’s office) where the couple resides.

The notice will be displayed for fifteen days, after which the grant of authority for the union can be issued by a minister or some comparable official at the wedding. (If you’re to be married in a Church of England or Church in Wales facility this requirement is waived.)

If one of the partners dies, UK law treats marriages and civil commitments identically. I won’t go into every nuance of the law here, but basically, it works like this:

There is an inheritance tax, and if you died this year it would be triggered if you were passing an estate larger than £325,000 (at today’s exchange rates, that’s about $514,000). You would be taxed 40% for anything over that threshold, and the amount you can pass without paying the tax goes up over time. (Gifts above £3000 per year that you gave in the past seven years are considered part of the estate, except gifts given to spouses and for other purposes, such as charitable giving.) Under certain circumstances it is possible to double the amount that can be passed, tax-free, to the next generation or to unrelated individuals.

The tax normally does not apply at all, regardless of the size of the estate, if the assets are passing from one spouse to another or to charity.

Love, American Style

So how do we contrast all this to the American experience?

Right off the bat, in the UK the law applies nationwide, unlike in the US, where states like Virginia have introduced bills that, if enacted, would void any same-sex civil unions granted by any other state, and relatives try to use the courts to prevent enforcement of arrangements entered into by same-sex partners.

This means Mr. Cowles can at least sleep under his own roof without fear that a lawsuit will emerge forcing him to either vacate his home or mount a costly legal defense to keep it—or worse yet, to have to mount a costly defense...and lose his home in the process, something that happens in the US on a regular basis.

Additionally, should Mr. Gately have chosen to direct his assets to Mr. Cowles, that decision will likely be carried out; and there would be no special legal hoops (other than the civil commitment process) through which anyone would have to jump to make such a decision carry the force of law.

It is also highly likely that Mr. Cowles will be given full authority to make any decisions about funeral arrangements that are required, and that he won’t have to fight the relatives for the physical custody of the body of his deceased partner.

There are two other interesting contrasts of which you should be aware: the divorce rate in England and Wales today, nearly 4 years after gay weddings first began in England and Wales, is at a 26 year low, and there is evidence to suggest that allowing same-sex marriages actually leads to those who marry living longer lives than those who want to marry today, but can’t.

And that’s where we’re going to end this for today: in the UK, a family like Stephen Gately’s and Andrew Cowles’ may suffer from an unexpected tragedy, but the law doesn’t conspire to make a bad situation a thousand times worse for the surviving member of the same-sex couple—unlike in the US.

Disgruntled relatives aren’t able to challenge the union, the spouse can be confident that the decisions they make will be protected in law, and no one’s being thrown out into the street solely because of the nature of their marriage.

Oh, and I almost forgot the math part of the deal: same-sex unions not only help the spouses live longer, it’s apparently helping to reduce the UK divorce rate for all couples at the same time.

And if you add all that up, aren’t we really saying that legalizing same-sex marriages equals nothing less than legalizing Life, Liberty, and the Pursuit of Happiness?

So the next time someone claims gay marriage would somehow be threatening to the Nation...ask them: “why do you hate America, the Founding Fathers, the Constitution—and heterosexual marriages?”

Then stand back and let the stammering begin.

On Tradition, Or, Same-Sex Marriage, Seen Through A Telescope

Dangerous Things are happening in America these days, we are told, and the once-innocent citizens of Iowa and Vermont have already been exposed to the hazard...and now it looks as though the contagion might spread to States across New England.

But lucky for us, our friends on the Right are here again to save to save us from...(insert horror film music here)...

...The Gay.

The Gay, it turns out, want the opportunity to marry.

Among other complaints, our friends on the Right feel this will destroy religious tradition, which will ultimately destroy first Christianity, then the Nation. Therefore, religious tradition must be protected at all costs.

Well as it turns out, there are some people from our past who know a few things about religious traditions and how they distort reality—and today, we’ll examine the lessons they have to teach us.

The sun also ariseth, and the sun goeth down, and hasteth to his place where he arose.

--“The King James Bible”, Ecclesiastes 1:5

“...I wish, my dear Kepler, that we could have a good laugh together at the extraordinary stupidity of the mob. What do you think of the foremost philosophers of this University? In spite of my oft-repeated efforts and invitations, they have refused, with the obstinacy of a glutted adder, to look at the planets or Moon or my telescope.”

--“Through which the satellites of Jupiter were visible”, Galileo Galilei

“The proposition that the sun is in the center of the world and immovable from its place is absurd, philosophically false, and formally heretical; because it is expressly contrary to Holy Scriptures.”

--From the Catholic Church’s indictment of Galileo Galilei, 1633

So you get up every day and look up at the sky, and it’s obvious that the sun starts out over here...and at the end of the day it ends up over there.

Aristotle and Ptolemy figured it all out: each planet was placed on its own “sphere”, the earth in the center, and everything rotating around it; each planet (and the sun) inside the other, with the stars on the outside, in a Celestial Sphere”...all of this resembling Russian “Matryoshka” dolls.

And it’s no surprise that this interpretation of the motion of planets and the sun became not just “common sense”, but the official position of the Roman Catholic Church. After all, it was in the Bible, it was something you could see every day, and as the Greeks would have told you, it was logically “beautiful”—and who could want better proof than that?

To make a long story short, a Polish-born Church Canon named Nicolas Copernicus did. In 1543, near the end of his life, he released the book “De revolutionibus orbium coelestium” ("On the Revolutions of the Heavenly Spheres"), which suggested that all the planets, including the Earth, actually orbit the Sun.

It took another 40 years before someone would challenge Dogma on this point in a “threatening” way, but by 1584 Giordano Bruno’s “The Ash Wednesday Supper” was considered challenging enough to earn him the Heretic’s Fork...just before he was burned alive on the order of the Church.

By 1616 Galileo Galilei was being warned by the Catholic Church to stop talking about what he was seeing through his telescopes; a moon that was not a perfect sphere and the viewing of the phases of Venus being just two of his problematic observations.

Of course, the real reason all this was so problematic was because there were those in the Church who felt that the Word of God was to be interpreted literally...which meant that anyone who challenged either the text of the Bible or Church Dogma in any way had to be both factually wrong...and an enemy of the Faith.

Who are you going to believe, me or your own eyes?

--Groucho Marx, from the movie “Duck Soup”

Despite the warning, Galileo wouldn’t let it go. He kept observing, and he kept writing, which led to his attempt, in 1632, to obtain a license to publish the “Dialogue Concerning the Two Chief World Systems”...which led to his being hauled before the Inquisition...which led, in June of 1633, to him forswearing any of his previous beliefs, presumably to avoid the Heretic’s Fork himself.

The Church was able to hold all this together for another half-century—but Isaac Newton essentially “won the argument” with the publication of his three editions of the “Philosophiae Naturalis Principia Mathematica” from 1686 to 1742.

Many of you will recall that the Catholic Church was in fact destroyed by this chink in the armor of Biblical literalism, with the Church actually ceasing operations in 1802.

Obviously, I’m kidding—but the fact that nothing terrible happened hasn’t stopped any number of religious leaders in this country (and their followers, for that matter) from claiming that allowing same-sex marriages will have the same impact on faith in America today.

Which brings us to the moral of today’s story: the next time someone tells you that same-sex marriages will destroy religious traditions...that the world as we know it will come to a horrible end...and that anyone with any “common sense” can see that for themselves...tell ‘em to go get a telescope and get over it.