LGBT issues

by Samantha Berkovits

In the first decision on DOMA from the federal bench since President Obama’s announcement supporting gay marriage, a U.S. District Judge for the Northern District of California has ruled that Section 3 of the Defense of Marriage Act, DOMA, is unconstitutional. Dragovich v. U.S. Department of the Treasury focused on how DOMA unconstitutionally limits same-sex couple and domestic partner participation in aspects of the California Public Employees Retirement System, or CalPERS.

U.S. District Court Judge Claudia Wilken ruled that the definition of spouse in DOMA "violates the equal protection rights of Plaintiff same-sex spouses," as does a subsection of the Internal Revenue Code. Wilken concludes that CalPERS should not use DOMA or the IRS provision to limit participation for same-sex couples, nor should the plan cease receiving beneficial tax credits from the federal government.

Her ruling “set out the reasons why the legal arguments for a federal statute prohibiting same-sex marriage have become obsolete” and referenced the decision in Lawrence v. Texas, which stated that “social disapproval of homosexuality on the basis of asserted tradition and mores is no longer accepted as sufficient justification for laws burdening gay men and lesbians.” She also cited the more recent Ninth Circuit ruling in Perry v. Brown that “tradition alone is not a justification for taking away a right that had already been granted, even though that grant was in derogation of tradition.”

by Jeremy Leaming

Quickly after President Obama announced his support of marriage equality, the president’s knee-jerk detractors doused the moment with cynicism. The president, they said backed into the announcement or they snidely asked what’s the difference between a flip-flop and evolving.

The response from the far right – Obama is a scourge, a menace to society, God is surely irked now – was overwrought and hardly surprising. The cynicism, however, was offensive for its insensitivity and cluelessness. Did the dunderhead crowd listen to the president’s comments or was it expressing a latent distaste for gay Americans or ignorance of the challenges lesbians, gay men, bisexuals and transgender Americans face in a society where many are still bent on oppressing and marginalizing them.

Slate’s Dahlia Lithwick, argues that listening to Obama’s comments is, surprising as it may seem, helpful, writing, “Whatever your view of President Obama’s motives, or the legal consequences of his statement …, it is not in dispute that the words he spoke gave many Americans – including gay children and teenagers – the message that he had heard them, and that their experiences mattered so much that he’d changed his views – personal, political and legal.”

Or as James Fallows, the longtime correspondent for the Atlantic, said:  

I am aware that there are various slice-and-dice cynical assessments one could make of the president’s comments today. (Why did he take so long? Why did he back off the support he’d expressed in the 1990s? Might this be useful as a wedge issue in the election? It doesn’t have any immediate since it’s still up to the states. And so on.) But the fact remains that five minutes before his announcement, no one could be sure that he would take the step of staying that his personal views had changed. He did – and it was important, brave, potentially risky, and right. That should be noted It’s a significant day.