DOMA Section Ruled Unconstitutional

By Boyce Hinman
In a stunning victory for the LGBTI community, a federal judge in Massachusetts has ruled that the US Defense of Marriage Act (DOMA) is unconstitutional. The decision by judge Joseph Tauro came in decisions in two separate cases.

In the first case, the state of Massachusetts sued the US Department of Health and Human Services. In its briefs, the state said that the Defense of Marriage Act (DOMA) violates the state’s right under the federal constitution to sovereign authority to define and regulate the marital status of its residents. The state alleged that the Defense of Marriage Act is based on prejudice and forces the state to discriminate against its own citizens.

The second case was brought by Gay and Lesbian Advocates and Defenders (GLAD), on behalf of several same sex couples, against the US Office of Personnel Management.


In this case the plaintiffs noted that a 1996 US House of Representatives Judiciary Committee report stated explicitly that the purpose of DOMA was to express moral disapproval of homosexuality. GLAD asserted that this was an impermissible basis for denying the more than 1,000 benefits of marriage to same sex couples
In the first case the judge ruled that Congress, when enacting DOMA, did indeed unconstitutionally take away the right of state’s to determine who can be considered married in their states.

In the second case, the judge ruled that DOMA violates the equal protection principles found in the fifth amendment of the US constitution. He said, under DOMA, the only factor that determines who qualifies for the federal benefits provided to married couples, and who does not qualify, is the sexual orientation of those couples. Judge Tauro wrote in his decision that "This court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue."

The judge went on to say that, even if Congress’ purpose in approving DOMA was to encourage heterosexual couples to marry and raise children, that intention provides no rational basis for denying federal benefits of marriage to same sex couples. He noted that "Such denial does nothing to promote stability in heterosexual parenting."
These decisions are much narrower than any decision that might come as a result of the challenge to Proposition 8 being considered in a federal court in San Francisco. Judge Tauro ruled that just section 3 of DOMA is unconstitutional. That is the section that limits federal marriage related benefits to couples that include one man and one woman.

Judge Tauro’s ruling in the first case (State of Massachusetts Versus The Department of Health and Human Services) could possibly spell trouble for the challenge to Proposition 8. In his ruling Judge Tauro said the US constitution gives states the sovereign authority to determine who can or cannot marry. His decision is likely to be appealed all the way to the US Supreme Court. If the Supreme Court upholds Judge Tauro’s interpretation of the constitution, that would seem to mean that states do have the right to define marriage as between one man and one woman.

We will just have to await final word on this issue.

You can see copies of Judge Tauro’s rulings here.

Boyce Hinman is the founder of California Communities United Institute. He can be reached at or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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