Wednesday, March 04, 2009

Top Shelf DOMA Case Critique

Despite the 92-page complaint, the case boils down to a simple proposition. Same-sex couples who have lawfully married in Massachusetts, most of them almost five years ago, have been consistently and repeatedly denied federal benefits that are freely extended to different-sex couples married in Massachusetts, and the federal government has no legitimate basis for distinguishing between the plaintiffs’ marriages and the other marriages which are held to qualify for those benefits.
NYU Law Professor Arthur Leonard provides full, detailed and excellent analysis on the Gill case attacking Section 3 of DOMA. He provides sufficient background on the act and its application to frame the current challenge.

In addition, he breaks down the Massachusetts-specific issues, including:
  • There is only one class of marriage here, whether same-sex or different-sex, thus no basis for discrimination.
  • The states-rights angle of DOMA in fact imposes on Massachusetts sovereignty "by depriving married couples of benefits to which they should be entitled by virtue of their lawful marriage under state law."
While the rest of us wonder about GLAD's shot at winning this case, first in U.S. District Court and then through to the U.S. Supreme Court, Prof. Leonard is not. Instead, he thinks this could well become moot before it advances. For example, if the new administration overturns or tweaks Section 3 to be non-discriminatory, this issue the harm of no one and the benefit of many.

Thursday Follow-Up: Bay Windows hit the phones and ended up with various predictions here.

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1 comment:

Ryan said...

I've read the Cali prop 8 case's decision is going to come very, very quickly - within days.

some info on that over at