common ground

Why Did the Gays Who Beat Down DOMA Agree With DoJ to Stay the Judge’s Ruling?

The decision to agree with the government in staying U.S. District Judge Joseph Tauro’s striking down of DOMA’s Section 3 wasn’t made lightly, but it was made rationally: Rather than see the Gill v. OPM ruling overturned on appeal and same-sex couples face the possibility of having to repay the government for their tax breaks, the Gay & Lesbian Advocates & Defenders and their clients opted to join the Justice Department’s request to hold off on implementing the ruling. A wee bit different than what’s going on with California’s Prop 8.

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  • Tom B

    Why is there so little coverage of Gill?

  • huh

    Because they dont have Hollywood publicity whores backing their suit and publicity whores litigating the case.

  • huh

    Also, its a much lower stakes case. To win in Gill, you dont have to find a constitutional right to same-sex marriage.

  • declanto

    Still, you’d think a queer site like this would at least have something that explains what’s a stake here. Instead, it hardly rates a paragraph. How’s that for priorities?

  • declanto

    Sorry, on closer inspection it looks like this.

    The ruling strikes down the part of DOMA that declares the federal government cannot recognize same-sex marriages even when states in the union have legalized them, and thus may deny federal benefits and even the right to jointly file taxes.
    Before the ruling was announced, GLAD’s lead counsel Mary Bonauto noted, “This is not a marriage case. If we win, it wouldn’t result in any new marriages. It’s a case where people are already married and they’re being treated differently by the federal government. It’s about equal protection. When it comes to the U.S. code and how the federal government treats married people, there is no justification for denying equal taxation, equal Social Security benefits and equal federal retiree protections just because it’s a same-sex marriage.”

    Read more:

  • Mike in Asheville, nee "in Brooklyn"

    @ No. 3 HUH

    In key legal points, the Gill case is even more significant than Perry in constitutional rights. Perry asks the courts to find that the Equal Protection clause and Due Process clause of the 14th Amendment — the very same arguments cited by the SCOTUS in the Loving case (Loving is the inter-racial marriage case).

    Under Gill though, the court is asked to apply the Full Faith and Credit clause of Article 6 of the Constitution — something that has NEVER happened in marriage cases in the US. For example, in some states, age of consent for marriage is 16 while most require age of 18. Should a legally married 16 year-old move to a state that requires the age of 18 for consent, the new state IS NOT required to make exceptions that allow all 16 year-olds the right of marriage contrary to the state’s public policy. Rather, the state examines the rights to accept the singular case of a new resident married at an age in conflict with its public policy.

    The Gill decision makes a new reading of the Full Faith and Credit clause that has not yet been determined by the SCOTUS. The Perry case is not a new reading of Equal Protection and Due Process rather applying a consistent reading of Equal Protect and Due Process to same-sex marriages as has been applied to inter-racial marriages.

    In the end though, should either case prevail at the SCOTUS, the constitutionality of same-sex marriage will be affirmed. Under Perry, DOMA would be obviously contrary to the legal rights of married couples seeking equal treatment of their equal marriage. Under Gill, the Full Faith and Credit of a same-sex marriage being required to be recognized, will force a de facto same-sex marriage requirement in all jurisdictions where a legally married same-sex couple relocates and demands recognition.


    Per your snarky comment @No. 3, why chastise the California effort to require the legal recognition of marriage-equity with the catty calls of “media and publicity whores”? What have they done to you?

    Winning the right of marriage equality has required efforts from Hawaii to West-to-East coast and the surprising successful effort in Iowa. Hard working and dedicated souls have jeopardized much on behalf of the greater LGBT community to obtain a fair legal protection of our relationships and our individual liberty to love and cherish (and cherish includes providing financial support and care) the person of our own choosing. They are all heros, from the very first case in Hawaii that began this effort MORE THAN 15 YEARS AGO.

    With the efforts of the parties in the Perry case, the LGBT may not have to wait another 15 years for this to happen. 15 more years where partners are mistreated, devalued, and forced to overcome legal hurdles to provide for eachother that which any two drunken twits, male and female, can obtain at any wedding chapel in Las Vegas on less than a 1 hour engagement.

    Cheers to all those from the Perry case and the Gill case, to those in Hawaii who breathed life into the movement, the battlers against Prop H8, the victorious in Massachusetts and Iowa, DC, Vermont and Conn, the on-going battlers in Maine and New Jersey and New York, everywhere to those who are fighting the good fight. God bless you all.

  • Mark

    @Mike in Asheville, nee “in Brooklyn”

    This is incorrect. The MA case challenges Section 3 of DOMA – dealing with federal recognition of state marriages – under the Equal Protection guarantees of the Fifth Amendment. A companion case filed by the Commonwealth of Massachusetts challenges Section 3 under the Tenth Amendment.

    The type of case you’re talking about would challenge DOMA Section 2 – dealing with state-to-state recognition of marriages – under the Full Faith and Credit Clause. No serious challenge to Section 2 has to date been filed anywhere in the United States.

    That’s not to say the MA cases aren’t significant – they would be huge if they won in the Supreme Court.

  • Cam

    The problem is, you can’t retroactivly tax so the argument for staying the decision was bullshit.

    If gay marraiges were legal at the time they filed, the govt. can’t come back later and say “ooops, gay marraiges aren’t legal now, pay more”. If they could, all the govt. would have to do to get out of the deficeit would be to say “Oh, by the way, we aren’t raising taxes on all the citizens NOW, we’ve raised the taxes from 2000 to 2008. So please send in your updated checks.

    It’s similar to why CA. has 18,000 legal gay marriges but no new ones.

    It’s a bullshit argument and makes me think that the case’s defenders just didn’t feel like an additional fight.

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