"The Beginning of the End of DOMA"
by Chuck Muth

Forget Massachusetts.

The court decision gay marriage opponents - and supporters - ought to REALLY
be worried about is the one handed down in New York last week declaring gay
marriage legal, a decision which surely will end up before the New York
Supreme Court on appeal. That decision, more so than the one in
Massachusetts, is likely to pave the way for overturning the Defense of
Marriage Act (DOMA) - which states that one state need not recognize the gay
marriages of another - and will present an arguably legitimate reason to
pursue a constitutional ban on same-sex marriage.

And if folks can get beyond the moralistic gay-phobia arguments, a
fascinating constitutional clash for the ages will then take place
encompassing federalism, the practice of following Supreme Court precedent
and the separation of powers. Although I've generally been hoping this
issue would just go away - we really DO have bigger fish to fry - I'm now
looking forward to it blowing up.

DISCLAIMER: I am neither an attorney nor a constitutional historian, so the
following opinions are based on the observations of an amateur, everyday
citizen...not an "expert." OK, with that out of the way here's why I think
Manhattan Judge Doris Ling-Cohan's decision is more significant than the
Massachusetts decision.

FIRST: Since the day the original decision legalizing gay marriage was
handed down in Massachusetts, opponents have bemoaned the fact that a bunch
of "unelected" judges "imposed" it on the people. Judge Ling-Cohan, however,
was ELECTED to the bench by the people. She wasn't appointed. That
eliminates a hugely effective PR argument from the anti-gay marriage side.

SECOND: The reasoning put forward by Judge Ling-Cohan plants the seeds for
declaring DOMA unconstitutional. "It was only less than 40 years ago that
the U.S. Supreme Court held that anti-miscegenation statutes, adopted to
prevent marriages between persons solely on the basis of racial
classification, violate the Constitution because they infringed on the
freedom to marry a person of one's choice," she wrote.

Boy, does THAT ever open a can of constitutional worms. Consider...

First there's the conflict between state sovereignty vs. the federal
government. Generally speaking, the Founders intended that the states be
free to decide whatever they wanted in areas not specifically reserved to
the federal government. But that changed significantly over the issue of
whether or not some states could allow slavery while others were allowed to
ban it.

Putting it simplistically, the Constitution was changed with the adoption of
the 14th Amendment to allow the feds to overrule state laws which violated
what were considered the natural rights of all citizens of the United
States. All U.S. citizens were deemed to have a right to be free;
therefore, state laws allowing slavery were null and void. Therefore, if
marriage ends up being interpreted by the United States Supreme Court as a
natural right due to all citizens of the United States, then state laws and
constitutions banning gay marriage will be overturned and gay marriage will
become the law of the land.

And that's why Judge Ling-Cohan's reference to miscegenation laws is so
significant.

This reference dates back to the 1967 Supreme Court decision in Loving vs.
Virginia. The Lovings were an interracial Virginia couple who wanted to get
married. But Virginia law banned blacks from marrying whites. So the
Lovings went to Washington, DC, to tie the knot.

After getting a legal marriage in Washington, the couple returned to
Virginia and were promptly indicted for violating the state's ban on
interracial marriages. The trial judge found them guilty and sentenced them
to one year in jail. He suspended the sentence; however, provided the
couple leave Virginia and not return for 25 years.

In his opinion, the judge wrote: "Almighty God created the races white,
black, yellow, malay and red, and he placed them on separate continents. And
but for the interference with his arrangement there would be no cause for
such marriages. The fact that he separated the races shows that he did not
intend for the races to mix."

You can't help but notice how similar that wording is to what is often heard
from many gay marriage opponents today.