White House silent on Massachusetts gay marriage ruling

By Denise Lavoie

Associated Press

Published: Friday, July 9 2010 4:00 p.m. MDT

BOSTON — A key part of a law denying married gay couples federal benefits has been thrown out the window in Massachusetts, the first state to legalize gay marriage. The ball now lies in the White House's court, which must carefully calculate the next move by an administration that has faced accusations it has not vigorously defended the law of the land.

President Barack Obama has said repeatedly that he would like to see the federal Defense of Marriage Act, known as DOMA, repealed. But the Justice Department has defended the constitutionality of the law, which it is required to do.

The administration was silent Friday on whether it would appeal rulings by U.S. District Judge Joseph Tauro. Spokespeople for the White House and the Justice Department said officials are still reviewing the rulings.

DOMA defines marriage as between a man and a woman, prevents the federal government from recognizing gay marriages and allows states to deny recognition of same-sex unions performed elsewhere. Since the law passed in 1996, many states have instituted their own bans on gay marriage, and a handful have allowed the practice.

Tauro ruled Thursday in two separate cases that DOMA is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including health insurance and the benefits of filing joint tax returns.

The rulings apply only to Massachusetts, where same-sex marriage has been legal since 2004. But gay marriage supporters are hoping the rulings could prompt other states to file their own challenges to DOMA and could also give momentum to a bill pending in Congress that would repeal the law.

Many opponents and proponents expect the Obama administration to appeal the rulings to the 1st U.S. Circuit Court of Appeals in Boston, and that the question of whether the law is unconstitutional will eventually be decided by the U.S. Supreme Court.

Many Obama voters, particularly among gays, will push for the administration not to appeal Tauro's rulings, said former Assistant Attorney General Robert Raben. But the administration could set a dangerous precedent if it does not continue to defend the law, he said.

"You want the Department of Justice to stop because you won a case; I understand that," said Raben, who worked at the department during the administration of President Bill Clinton, who signed DOMA into law.

"But you could have a conservative Department of Justice that won't enforce hate crimes, that won't enforce employment nondiscrimination acts, that won't enforce the Ryan White Act, that won't enforce all kinds of new protections for gays and lesbians because the attorney general doesn't agree with them. That's not a regime you want to live in."

DOMA was enacted when it appeared Hawaii would soon legalize same-sex marriage and opponents worried that other states would be forced to recognize such marriages. Since 2004, five states — Connecticut, Iowa, New Hampshire and Vermont, in addition to Massachusetts — and the District of Columbia have legalized gay marriage.

Some gay marriage opponents say that despite the Justice Department's legal obligations, it has purposely mounted a weak defense of the law.

"It's not surprising that this judge got it wrong, because a sham defense was put up by the Obama Justice Department," said Maggie Gallagher, chairman of the National Organization for Marriage.

But state Attorney General Martha Coakley, who filed one of the legal challenges to DOMA, said the Justice Department "made their best arguments."

"We didn't think that this was anything other than a legitimate adversarial proceeding," Coakley said.

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