A federal district court in Massachusetts has ruled that the portion of the Defense of Marriage Act of 1996 — specifically, the part that defines "marriage" as between a man and a woman only — as unconstitutional. The ruling came in two opinions,
The state had argued the law denied benefits such as Medicaid to gay married couples in Massachusetts, where same-sex unions have been legal since 2004.
Judge Joseph L. Tauro agreed that DOMA forces the state to discriminate against its own citizens and ruled that the federal Defense of Marriage law violates the Constitutional right of married same-sex couples to equal protection under the Fifth Amendment.
He also struck down DOMA on Tenth Amendment grounds, stating that marriage is the province of the states, not the federal government. This is a bit of a "pie-in-your-eye" to conservatives: the Tenth Amendment is basically an anti-federalism "states' rights" amendment. Judge Tauro basically took it and said "States' rights? You got it. States get to decide who gets 'married'; not the federal government."
It will probably be appealed. Yes, it's the Obama Administration, but the Justice Department is independent of politics.
The New York Times coverage relies heavily on the viewpoints of Professor Balkin who thinks the decision will be overturned (his expanded critique of the decision is here). Unfortunately, Balkin's argument boils down to (1) most people in this country aren't ready for same-sex marriage and (2) if you strike down DOMA as being discriminative, then you have to change all kinds of federal programs (Social Security benefits, etc.). Those are nice arguments, but they are not legal arguments. The bottom line is as the opinion states, i.e., it is discriminatory (violating the Fifth Amendment) and it treds upon areas of law traditionally left to states (violating the Tenth Amendment).
On the latter point, Balkin argues that the federal government has always been enmeshed in family matters:
But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government's taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.
This overstates things. There is nothing in the modern welfare state, nor the tax code, which "defines families". Families and marriages are NOT defined in the tax code — I know, I've looked. The definition of marriage (up until DOMA) has always been left to the states, and the states have always differed (for example, with the age of consent to marry). Balkin is failing to draw a distinction between federal laws which are deal with marriage (tax breaks for married couples, etc.) and laws which define the scope of what is "marriage" in the first place.
Balkin makes another point: