Is this the End of DOMA?

By Jeffrey Page

At long last, it appears that the question of gay marriage is switching to an express track to the Supreme Court.

A pair of cases, decided last week in Boston, are not the emotion stirrers of tenant rights, sodomy laws, employment, adoption and health. Instead the cases were decided by an examination of the hoary Tenth Amendment, the last item in the Bill of Rights, which reserves all powers to the states if the Constitution doesn’t grant them to the federal government. So, the questions – Can two men marry? Can two women? – were answered not with ancient prejudices and irrational fears, but on a federal trial judge’s ruling that the Constitution says nothing about marriage.

Therefore, he reasoned, marriage is a matter for the states – several of which have already legalized same-sex marriage.

Specifically, Judge Joseph L. Tauro ruled, the federal ban on same-sex marriage – contained in the Defense of Marriage Act – is unconstitutional because it violates the the 28 words of the Tenth 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.”

Declare war? Congress, not the states, is empowered to do that. Enter into treaties with other nations? Raise a Navy? Punish pirates? Coin money? Same thing; they’re matters for the federal government. But create an official definition of marriage? No.

The Defense of Marriage Act was signed into law 14 years ago by Bill Clinton, Last week, a judge ruled that DOMA has Tenth Amendment problems. It’s impossible to know how many people have been victimized by DOMA during its existence. I think of gay friends, dead now, who likely would have married if they’d had the opportunity. I think of them when I read newspaper stories about same-sex marriage and wonder what their lives were like with the knowledge that a political faction in the United States considered them less than human.

The Defense of Marriage Act is intellectually indefensible especially in light of that stirring business in the preamble to the Constitution about establishing justice, promoting the general welfare and securing the blessings of liberty. These were not, and are not, pretty poetry. They were, and remain, the glove slapped across the wretched face of tyranny. It will be fascinating to watch Roberts, Alito, Thomas and Scalia jump through flaming hoops to craft a response to Tauro’s reasoning.

By the way, just who is this Judge Joseph L. Tauro anyway? Why, it turns out that he was appointed to the federal district court in Boston by none other than that radical, commie comforting, pink to the core socialist bum, uh, Richard M. Nixon.

Clearly, the matters that went before Tauro can never be concluded in his courtroom. Doubtless there will be at least two appeals, one to an appellate panel, and one to the Supreme Court, several of whose members have decried activist interpretations of the Constitution. And to find marriage where marriage does not exist, such as in the Constitution, sounds like the very definition of judicial activism.

For now at least, it is important to note that nothing unusual happened in the several days since Judge Tauro’s ruling. This should ease the terrible fears of people who believe that two men holding hands on Tuesday mean the death of America on Wednesday.

Jeffrey can be reached at


2 Responses to “Is this the End of DOMA?”

  1. Michael Says:

    I hope you are right, Jeffrey, but fear we may be in for a backlash that carries the day in the Supreme Court as it is now constituted. There is nothing in the Constitution that guarantees a corporation the rights of a human being, but that was the rationale for the recent decision striking down limits on corporate campaign contributions.

  2. Edward Godwin Says:

    “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.” Why is it that every issue then must go to the Supreme Court? Both sides of these life and lifestyle debates want to directly avoid “the people.”
    The founding fathers compromised on a lot of issues within and without the Constitution. The people had a venue to bring about change without violent overthrow of the government though the amendment process of that Constitution. “Open covenants openly arrived at” should mean a commitment to public debate with time and guaranteed access at prime times for it when we review a change. Instead, each side tries to obtain a significant change via the courts and/or the President who appoints them.
    Just as you write here expressing your opinion, I favor defining in debate and public (the people) voting directly. In an age with vast change in communication, it seems unbelievable that the Supreme Court determined the 2000 election. It seems unbelievable that soundbites replace genuine debate and rebuttal. The “tweet” is the latest example. The vast wasteland of Newton Minnow has added the typical comments on news on the internet where so many engage in emotion.
    Televison and the modern technogical airwaves need dedicated public access times and places to engage in serious and honest debate. It can’t and won’t happen if the present atmosphere continues to undermine honest debate. When I hear people say they only watch “Fox” news, I shudder.
    I was a member of a college debate team. Format: Define the question and meaning of terms. Affirmative and negative positions. Rebute points. Summation.
    The Supreme Court ought to open its proceedings to the public as well.
    Our fears are founded on our concerns that the “uneducated”, the masses are asses. If I recall correctly, that was inherent in the decisions not to have a unicameral legislature and the Senate originally not being directly elected by the people.
    Why not have direct public voting nationally since that is “or the people”? However, it wouldn’t work until voices can be thoughtfully heard.

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