Back in July we celebrated a victory for marriage equality in federal court – not the Prop. 8 case of Perry v. Schwarzenegger, but a successful challenge to the federal Defense of Marriage Act (DOMA).  Judge Tauro struck down Section III of DOMA as unconstitutional because by mandating that the federal government ignore legally recognized marriages in states like Massachusetts, Iowa, New Hampshire, etc. it interferes with a state’s right to define marriage.  Under the ruling, the plaintiffs are entitled to the same federal spousal benefits and protections as every other married couple.

Yesterday, the Obama administration’s Department of Justice filed notice of its intent to appeal Gill v. Office of Personnel Management.

“We fully expected an appeal and are more than ready to meet it head on,” said Mary L. Bonauto, Civil Rights Project Director for Gay and Lesbian Advocates and Defenders, which brought the case.  “DOMA brings harm to families like our plaintiffs every day, denying married couples and their children basic protections like health insurance, pensions, and Social Security benefits.  We are confident in the strength of our case.”

Visit GLAD’s website to find out more about this case and recent developments.

Noted conservative and Fox News Channel host Glenn Beck, appearing on the O’Reilly Factor, was asked why his show doesn’t focus on gay marriage. O’Reilly made a point to ask Beck “Do you believe that gay marriage is a threat to country in any way?” Beck was quick to respond, “I believe that Thomas Jefferson said: “If it neither breaks my leg nor picks my pocket what difference is it to me?”

“Honestly, I think we have bigger fish to fry,” Beck said. “You can argue about abortion or gay marriage or whatever all you want. The country is burning down…I don’t think marriage, that the government actually has anything to do with…that is a religious right.”

Diverging from many conservative voices, Beck takes a libertarian approach to marriage equality and similar issues, most notably breaking with the Mormon Church, of which he is a member. This viewpoint on marriage is in line with his stance on a woman’s right to choose, where he takes a position akin to ‘If you don’t like abortion, don’t have one.”

Beck’s perspective is joined by many leading conservative Fox News commentators and hosts, including Judge Andrew Napolitano and Margaret Hoover, who are making the argument that in the wake of the Proposition 8 ruling by Judge Vaughn Walker and similar cases that marriage equality is going to be upheld and it is time for conservatives to embrace the right to marry.

Former Judge and Fox News Contributor Andrew Napolitano argued that the Supreme Court would uphold Judge Vaughn Walker’s ruling on Proposition 8. Appearing on the Fox Report with Shepard Smith, Napolitano was quick to highlight Romer v. Evans and Lawrence v. Texas, two cases authored by Justice Anthony Kennedy, both of which sided in favor of gay rights.

“So, when you predict what the Supreme Court is going to do, you look at what they’ve done in the past,” said Napolitano.  “If Justice Kennedy is consistent with his views on those two cases, I would think he would side with Judge Vaughn Walker on this one.”

Napolitano focused greatly on Judge Walker’s use of Loving v. Virginia in creating a precedent for his ruling, by saying, “Until recently, as late as the late 1960s the state of Virginia prohibited bi-racial marriage.” Smith interjected, “How stupid does that look now. What a bunch of fools they were. That’s how this is going to look in 40 years.”

Napolitano went on to explain the relationship between the Walker ruling and Loving, “It was absurd and it was done under the theory of states’ rights. The states regulate marriage and the federal government doesn’t. The Congress wouldn’t get involved, the Supreme Court got involved and said ‘we don’t do that anymore, consenting adults have the right to marry each other.’ It’s a very interesting case, it was cited by Judge Walker in his decision for the following proposition, the right to choose with whom you will cohabit and share your life is the most intimate personal choice a person makes. What business is it of the government who they choose.’ That’s basically what he said yesterday when he said the government can’t tell you that you must choose someone of the opposit sex.”

Smith once again offered his opinion, saying, “If you can’t tell straight couples ‘here’s how you gotta do things’ you can’t tell gay couples, because there’s equal protection under the law.”

“The constitution requires that states treat similarly situated people in a similar way…You can’t have one set of laws for straights and
another set of laws for gays, that’s basically what he argued,” Napolitano said. ”To the argument that 52% of Californians voters don’t want this, he said that we have certain natural rights like speech, privacy and thought and they do not depend on the popularity of our neighbors for their existence, they come from our humanity. That is basically the argument that Judge Walker made yesterday, which I suspect that a majority of the Supreme Court will accept.”

Napolitano’s assessment has been echoed by a number of Fox News contributors, including Margaret Hoover, who called on conservatives to support rather than oppose same-sex marriage.

Click here to view the rest of Napolitano’s interview with Smith.

Fox News Contributor Margaret Hoover penned the following piece, calling on her fellow conservatives to take a second look at marriage for same-sex couples, and not alienate themselves from future generations of supporters:

As a conservative Republican representing the next generation of attitudes towards gays and lesbians, I encouraged the readers of FoxNews.com last January to take a careful look at the arguments and evidence in the Prop 8 trial, Perry v. Schwarzenegger.

The case was presented by a constitutional conservative, Ted Olson, who helped found the Federalist Society, successfully argued Bush v. Gore to the Supreme Court (among fifty-five other cases), and was George W. Bush’s Solicitor General. Working with his Democratic legal partner David Boies, Olson sought to prove that marriage equality is a constitutional question, not a partisan issue.

…

Among the seventeen witnesses Olson and Boies called to the stand were experts in areas of psychology, political science, economics, socio medical sciences and history.

Economists testified to the economic harm caused to same-sex couples and their children; political scientists to their political vulnerability; sociologists and psychologists to the societal stigma associated with homosexuality; historians to the history of marriage shedding its discriminatory restrictions over time.

Other testimony included Ryan Kendal, a young gay man who failed a “conversion therapy” attempt to alter his sexuality from gay to straight and the Republican Mayor of San Diego, a former police chief, who testified that “if government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do exactly the same thing.”

…

We conservatives have a well-founded narrative about judges and the courts. It is true that the federal bench is populated with liberals who view their role not as interpreting the law as it is written, but as policy makers empowered to sculpt social outcomes with which they agree.

The irony of this case is that Judge Walker is not a liberal activist judge but one whose career has proven him to be a tempered judge, true to the Reagan-Bush conservative jurisprudence that he was nominated to represent on the bench.

Conservatives cannot deny that our Founders intended the judiciary as an equal and independent branch of government purposed to ensure the protection of every citizen’s rights.

…

The potential consequence that conservatives land on the wrong side of civil rights history again is the alienation of an entire generation of voters. With polling definitively indicating that Americans under age 30 overwhelmingly favor gay rights, with a majority supporting gay marriage according to the Pew Millennial Attitudes report published in February this year, there are multiple reasons for conservatives to think carefully before digging in their heels against gay marriage.

Read the rest of Hoover’s column at FoxNews.com.

Former United States Solicitor General and leading conservative attorney Ted Olson appeared on Fox News Sunday with Chris Wallace in the wake of the historic ruling by Judge Vaughn Walker which overturned California’s ban on same-sex marriage, commonly known as Proposition 8.

While Wallace’s line of questioning was aimed at striking a contrast between Olson’s record as a conservative and his work opposing Proposition 8 in court, Olson stood firm on the core tenet that marriage, and in this matter, same-sex marriage, was a fundamental right grounded in the Constitution. Olson made it a point to recognize that the Supreme Court has, when it deemed necessary, overturned actions by states.  For example, he cited a case where, by popular referendum, California established a right to discriminate in the sale of real estate. He also cited Loving v. Virginia, which struck down bans on interracial marriage.

Wallace brought up the argument articulated by many opponents of marriage equality, that because certain states were moving forward legislatively the courts should wait until the matter is resolved in that manner. Olson was quick to respond that:

Well, would you like your right to free speech? Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do? These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I’m very, very pleased about that. … We can’t wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated.

At the end of the interview, Wallace underscored Olson’s credentials for articulating a conservative case for marriage equality. “Mr. Olson, we want to thank you so much for joining us today. We’ll keep following your lawsuit. And I gotta say, after your appearance today, I don’t understand how you ever lost a case in the Supreme Court, sir,” he said.