Judge Strikes Down Federal Gay Marriage Ban

Posted July 9, 2010 in Your Family & The Law by Arthur Buono

A federal district court judge in Boston declared the federal gay marriage ban unconstitutional yesterday. The 1996 Defense of Marriage Act (DOMA) defined marriage as a union between a man and a woman. In two separate cases the court said the law violated the Constitution’s Equal Protection Clause and the Tenth Amendment.


  • DOMA left states free to ignore same-sex marriages from other states
  • Marriage customarily governed by state, not federal, law
  • Judge sees DOMA offending both liberal and conservative concepts


Law of Same-Sex Unions Evolving

Congress passed DOMA in 1996 in response to the first state-sanctioned gay marriages. The law states that “marriage” means only a legal union between one man and one woman as husband and wife. It also provides that no state had to recognize a marriage made in another state that did not fit this definition. States have traditionally and exclusively sanctioned marriages and controlled the law governing marriage. The court’s rulings against the law are interesting because they unite states’ rights, a traditionally conservative concept, with equal protection, a liberal, civil rights concept.

Gay marriage and same-sex unions are relatively new and still provoke controversy. Few states currently permit same-sex couples to wed or form civil unions. One state that did, California, reversed course in 2008 when the voters passed Proposition 8. A decision could come soon in a challenge to that law in federal district court. Both sides have vowed to appeal all the way to the Supreme Court if they lose. The Governor of Hawaii just this week vetoed a bill passed by state lawmakers that would have allowed civil unions between persons of the same sex.

In a happy coincidence, NBC’s Today show announced yesterday it will include gay couples in its contest to be married on the show. The Associated Press report contains reaction from the gay and lesbian community, as well as additional comment from NBC.

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