The first case was brought by the state of Massachusetts. Judge Tauro declared Congress violated the Tenth Amendment by originally passing DOMA. They took away the states decisions determining which couples can be considered married.

His second ruling was on Gill v. Office of Personnel Management. It was decided that DOMA violated equal protection embodied in the Due Process Clause of the Fifth Amendment. This case was argued by Gay & Lesbian Advocates & Defenders (GLAD), GLAD represented eight married couples and three widowers in the suit.

 Two other major equality court cases continue to develop in California, the Prop. 8 trial and Log Cabin Republicans trial against the “Don’t Ask, Don’t Tell” policy. The decision in Boston today is a great step toward equality for all Americans, regardless of their sexual orientation.

“Supporters of same-sex marriage are understandably giddy with excitement over the impending decision from U.S. District Judge Vaughn Walker. There’s pretty much universal agreement that the liberal-conservative tag team of David Boies and Ted Olson made an excellent and compelling argument for why the voter-approved Proposition 8 in California violates the U.S. Constitution’s guarantees of due process and equal protection. But the prospect of victory has me and more than a few others concerned about what may follow.

Perry v. Schwarzenegger is not the only marriage equality case out there. Folks have their eyes on one out of Massachusetts. But no matter how Judge Walker rules in the Prop 8 suit, which is expected sometime this summer, the case is certain to be appealed to the federal Ninth Circuit and then to the Supreme Court. And therein lies the danger. If the current ideological makeup of the court doesn’t change by then, the victory that could come at the hands of Judge Walker could turn into a defeat in the Roberts Court. And even if the justices put ideology aside, it might still be reluctant to impose its will on the country.

Jonathan Rauch wrote an excellent piece for the New York Times last Saturday that also expressed concern about same-sex marriage and the high court. The foundation of his argument was something Supreme Court nominee Elena Kagan said cast a spotlight on that latter point. “The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals,” she said. “But the court must also recognize the limits on itself and respect the choices made by the American people.”

To understand the importance of that last sentence we need to go back to the 1986 ruling in Bowers v. Hardwick. This case involved two consenting adult gay men who were arrested for violating Georgia’s anti-sodomy law. Michael Hardwick challenged the law’s constitutionality in federal court. When the case reached the Supreme Court, the question before it was whether consensual sodomy by homosexuals was a fundamental right guaranteed by the Constitution. The answer was no in a 5-4 decision written by Justice Byron R. White. This is a key paragraph in the majority opinion to file away for a moment.

Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

The constitutionality of sodomy laws returned 17 years later in Lawrence v. Texas. The question before the Supreme Court in 2003 was “the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.” The 6-3 decision, which overturned Bowers v. Hardwick and invalidated anti-sodomy laws across the country, was written by Justice Anthony Kennedy. His majority opinion remains heralded as the most pro-gay decision to come from the high court. In a key rebuttal to Bowers, Kennedy wrote:

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

The historical trend between the two cases is obvious. In addition to recognizing the violation of equal protection and due process guaranteed under the Fourteenth Amendment, the Court in the Lawrence case also noted that society was moving away from criminalizing the consensual intimate relationships of same-sex couples. Unfortunately, the same cannot be said of society’s acceptance of marriage equality.

Yes, there has been progress, much of it within the last 10 years. Same-sex couples are able to legally wed in five states (Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire) and, most recently, the District of Columbia. Maryland, Rhode Island and New York legally recognize marriages performed in other jurisdictions. But in that same period, 30 states passed constitutional amendments or statutes that define marriage as being between one man and one woman. In fact, the Wisconsin Supreme Court ruled unanimously on June 30 to uphold that state’s constitutional ban on same-sex marriage and civil unions. Remember what Kagan said about the court recognizing the limits on itself and respecting “the choices made by the American people”? Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

Here’s something else to consider. The Massachusetts Supreme Judicial Court ruling that ushered in marriage equality there in 2004 also kicked off a push to enshrine discrimination in the Constitution through an amendment banning same-sex marriage. It went nowhere then. I’m not so sure today. Two-thirds of the states — 38 — are needed to amend the U.S. Constitution. As I just mentioned 30 states have already done it on their own. Or look at it this way, 45 of the 50 states currently do not permit same-sex marriage.

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.” -Jonathan Capehart

 Final statements were heard this week in the California federal trial of Proposition 8, banning same-sex marriage.  Walker questioned the argument that marriage is aimed at serving society’s importance in procreation.

The judge asked Ted Olson, who represents the two same-sex couples, why domestic partnerships aren’t sufficient. Mr. Olson responded with testimony from gay and lesbian witnesses describing the humiliation they felt by not being allowed to marry.

However Judge Walker rules, the case is likely headed for the 9^th Circuit and then the Supreme Court.

(For more information on closing arguments, check these articles on NYT, WSJ, and LAT.)

In other states where gay marriage is not legal, divorce by gay couples has met mixed results. In March, a Pennsylvania judge refused a case by two women who married in Massachusetts now seeking a divorce, while New York grants such divorces even though the state doesn’t permit same-sex marriage.

In March, Equality Forum, a national and international gay, lesbian, bisexual and transgender (GLBT) civil rights organization, launched a Project 1138 web site to create awareness about the 1,138 federal benefits denied GLBT couples. Project 1138 calls on its members and the GLBT community and allies to take action by contacting their elected officials in Congress and demanding the repeal of the Defense of Marriage Act.

Currently, people in same-sex relationships are denied Social Security survivor benefits from their deceased partners because the federal government does not recognize same-sex marriages recognized by a handful of states  or domestic partnerships as valid relationships.  One rally member was quoted on the issue of same-sex Social Security benefits saying:

“Same-sex couples should get Social Security benefits,” Tran said. “It’s different from the marriage argument — this is more about a need for economic equality.”

Two U.S. Representatives who were present at the rally announced their intent to introduce and support legislation to provide equal Social Security benefits for same-sex couples.

For more on this article, visit the Los Angeles Times

On Sunday, George Osborne, Britain’s Shadow Chancellor and member of the Conservative Party, met with gay rights leaders to discuss equality issues and advancing the issue of gay marriage in Britain.  Britain’s Conservative Party leader, David Cameron, has suggested in an interview with Total Politics magazine that same-sex marriage is no different than traditional marriage:

“I stood up… and said that marriage was important, and as far as I was concerned it didn’t matter whether it was between a man and a woman, a man and a man or a woman and a woman”.

Although the present Government introduced same-sex civil partnerships some years ago, it has stopped short of calling these ‘marriages’.

Last year Mr Cameron said that any tax break for married couples introduced by the Conservative Party would also apply to same-sex couples in civil partnerships.

The Conservative Party in Britain is showing progress toward marriage equality for all, regardless of sexual orientation, and is beginning to take steps to move the country forward on issues of gay rights, including marriage equality.

“Our job is to get an accurate count. … One of the most important things is for same-sex couples to know that it is 100 percent safe to participate in the census.”

Safe for two reasons:

First, individuals’ census data are confidential. Second, nowhere on the 2010 census form does the government actually ask for anyone to identify his or her sexual orientation. Boxes exist for “male,” “female” and for spousal relationship. The existence of a same-same marriage or partnership is surmised from the data.

The 2010 Census form does not actually have a category for same-sex couples or gays and lesbians to self-identify. Rather, the Bureau is asking same-sex couples to mark the appropriate gender box and select “married” on the Census form, regardless of whether same-sex marriage is legal in their respective state or not.  In previous years the Census Bureau has assumed it was a mistake when a Census form included two individuals of the same sex and the “married” box was checked, and the Bureau graciously corrected the gender on those forms to reflect a heterosexual couple.  In 2010, the Bureau is assuming that where a form indicates two individuals of the same gender and “married”, that in fact it is a married couple and will count it as such.  The Bureau will extrapolate data based on marital status and gender to determine how many same-sex couples there are in the United States for the first time since the government began collecting this information.

Prior to the ruling, Culver said he would be willing to call legislators into special session to “do whatever it takes to protect marriage between a man and a woman.” On the day of the court’s decision, Culver released a tepid statement, saying he wanted to review the ruling with the attorney general before “reacting to what it means for Iowa.” It was nearly a week before the governor released a statement saying that while he personally believed marriage was between one man and one woman, he was “reluctant to support amending the Iowa Constitution” to overturn the court’s ruling.

Flash forward to this week, just a few days before the ruling’s one-year anniversary, and Culver’s position has become more steadfast.

“We stood firm for the civil rights of every Iowan by saying loudly and clearly that any and all efforts to add discriminatory amendments to our state constitution have no place in our state constitution,” Culver said, later adding: “The overwhelming majority of Iowans do not want to amend our constitution in such as a way that’s discriminatory. I think that’s the bottom line.”

Two people who have been involved in the gay marriage debate are Anthony Brown,  Director of the Cedar Rapids Gay and Lesbian Resource Center, and Reverend Tom Capo of the People’s Choice Unitarian Universalist church in Cedar Rapids.  Brown and Rev. Capo note that the change in Iowa over the past year has been a positive one:

Brown said all Iowans are equal, and the ruling has made such a difference in how the rest of the country views Iowa. He said it’s made Iowa on top when it comes to be progressive with civil rights issues.

Reverend Capo at  has seen many couples get married in his church, many even from out of state. “I was in Texas before I came to Cedar Rapids. All I could do was bless unions that were not legal. It was wonderful to bless these unions, but to be able to say I actually married a gay or lesbian couple and they have the same rights as everybody else, is just a wonderful thing,” said Rev. Capo.  Despite the changes, he says he’s found people that didn’t notice any changes. “Most of them say they haven’t seen any difference and actually most of them are coming around to a point where they say it’s not affecting them, so live and let live,” said Rev. Capo.

The National Organization for Marriage is seeking a challenge to the D.C. marriage law in an effort to put the issue on the ballot for voters in the District to decide on the issue, not the city council, taking advantage of a section in the D.C. Charter that allows citizens to gather signatures to place the issue on the ballot. The D.C. Charter allows for two types of citizen-backed measures: a referendum, which applies only to a bill that has passed the council and has yet to go into effect, and an initiative, which can appear on the ballot at any time.  The organization already appealed to U.S. Supreme Court Chief Justice John Roberts who as chief justice oversees D.C. matters; Roberts noted that since Congress and the Court did not take action to stop the law from taking effect the referendum process would not apply but that “the D.C. Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time.”

However, petitioners from the Alliance Defense Fund and Stand for Marriage D.C. already filed a lawsuit and were pursuing a ballot initiative but were denied by the D.C. Board of Elections and by various courts, which upheld the board’s stance that such an initiative would “authorize discrimination” against homosexuals, a violation of the D.C. Charter and Human Rights Act.  In a ruling earlier this year, D.C. Court of Appeals Judge Judith Macaluso stated, “The fact that the proposed initiative, if passed, would violate the Human Rights Act provides an independent basis for upholding the Board’s decision: the initiative runs afoul of an implied exclusion barring provisions that violates the state’s law,” she ruled.  Following the ruling of Judge Macaluso, Chief Justice John Roberts noted to petitioners of the D.C. marriage law that “It has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern.”