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July 8, 2010

Federal court finds DOMA unconstitutional on Tenth Amendment, equal protection grounds

A federal district judge in Massachusetts has ruled that Section 3 of the Defense of Marriage Act, which established the federal government’s definition of marriage as between one man and one woman, is unconstitutional.

The court issued rulings in two related cases.  In the first, Gill v. Office of Personnel Management, brought by same-sex couples, the court agreed that Section 3 of DOMA denied the couples certain federal marriage-based benefits that are available to similarly-situated heterosexual couples, in violation of the Fifth Amendment's equal protection clause.  Click here to read the decision.
In the second case, Commonwealth v. U.S. Department of Health and Human Services, brought by the Massachusetts attorney general, the court "determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.”  Click here to read the decision.
Professor Ruthann Robson has a report and analysis at Conlawprof Blog. 

July 8, 2010 | Permalink | Comments (0) | TrackBack

July 5, 2010

Kagan, law school recruiting, and civilian control of the military

Aaron Belkin, director of the Palm Center at UC-Santa Barbara, writes in the Huffington Post on the Kagan hearings and what they tell us about the state of civilian control of the military:

[T]he questioning of Elena Kagan reveals a failure on the part of our political institutions to exercise civilian control of the military. Whether or not one agrees with law schools who tried to enforce their own non-discrimination policies, the Pentagon played fast and loose with the facts and disguised a concern for disrespect and obedience with an argument about military recruiting, to say nothing of bullying university administrators and using personnel policy to express bigotry.

Rather than standing up to such affronts, Congress and the courts have been enablers, as we saw this week in the [Sen. Jeff] Sessions line of questioning. Congress's original passage of the Solomon amendment, conservatives' insincere claim that protest undermined recruiting, and the Supreme Court's willingness to allow the military to make unsubstantiated claims all suggest that some of our most powerful civilian leaders have failed to exercise civilian control of the armed forces.


July 5, 2010 | Permalink | Comments (0) | TrackBack