Bench Memos

Judge Tauro Rules

In “Marriage and the Reign of Judges” at Public Discourse this morning, I comment on Judge Joseph Tauro’s opinions invalidating the Defense of Marriage Act in Massachusetss last week:

The Defense of Marriage Act (DOMA) was grounded on a fear of judges run amok. This past Thursday, federal district court judge Joseph Tauro of Boston justified this fear when he struck down section 3 of the act in two separate cases, Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services (HHS). . . . In both cases the judge claimed to be basing his ruling on the “historically entrenched practice” of federal law recognizing marital status whenever it was accorded under state law. But we can hardly credit his attachment to “historically entrenched practice” when he is willing to treat the whole moral tradition of human civilization, with its exclusive recognition of marriage as a union of opposite sexes, as “irrational” and thus fit for the dustbin. . . .

Read the whole thing here.

UPDATE: My friend Maggie Gallagher of the National Organization for Marriage writes to correct a factual error I made in the piece linked above.  I wrote that same-sex marriage was created by a legislature in only one state, and in that case was “leveraged” into doing so by the state’s judiciary.  I had in mind Vermont, where the state’s high court forced the legislature to choose either civil unions or full marriage rights for same-sex couples; the legislature chose the former, then moved on its own to the latter some years later, but would have been unlikely ever to do either one without the judges forcing its hand.  But I was wrong to overlook neighboring New Hampshire, where the legislature recently created a right to same-sex marriage without a judicial gun to its head, but with no popular groundswell for it either.  We shall see after the November elections whether the people of New Hampshire stand for that from their elected legislators . . .

MORE update: The original article at Public Discourse has now been corrected.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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