cwnewz.com - It is agreed upon by two Attorneys on both sides of the same-sex marriage issue that two administrative rulings were blows to the federal Defense of Marriage Act.

Attorneys on both the opposing side and supportive side of the same-sex marriage issue agree that two administrative rulings last week from different judges on the 9th Circuit Court of Appeals in California were blows to the federal Defense of Marriage Act, or DOMA.
 
Brad Dacus, president of the Pacific Justice Institute in Sacramento, Calif., said both decisions are troubling because they ordered the federal government to cover the health benefits of the same-sex partners of two federal lawyers.
 
“These two judges took administrative actions that basically declared that the Defense of Marriage Act is unconstitutional, and federal employees who have a partner are entitled o be able to receive benefits if they are in a state – like California – which recognizes homosexual marriage,” Dacus said.
 
New York Law School professor Arthur Leonard agreed, but also added -- “I guess the significance is that it shows that a judge from the right and a judge from the left agree that DOMA raises serious constitutional questions.”

Judge Stephen Reinhardt actually overturned DOMA in one ruling, which limits marriage to one man and one woman, and bars states from being forced to accept same-sex marriage by means of the Full Faith and Credit Clause of the U.S. Constitution. That provision requires the courts in states to give “full faith and credit” to the l "public acts, records, and judicial rulings" of other states.
 
Reinhardt stated that the government's refusal to grant benefits to the same-sex partner of a lawyer in the Los Angeles office of the federal defender was unlawful discrimination on the basis of sex and sexual orientation.
 
Reinhardt wrote that neither a “distaste for” nor “disapproval of” same-sex marriage is sufficient basis to deny the federal benefits.
 
Reinhardt is a liberal whose decisions are frequently overturned by the U.S. Supreme Court, and is also the same judge who declared the Pledge of Allegiance to be unconstitutional in 2005 because it contains the phrase, “one nation under God.”
 
Dacus told CNSNews that despite its limited scope, the ruling was still wrong -- and unwelcome.
 
"Unfortunately the 9th Circuit has refused to respect the legislative branch and its authority to decide how benefits are to be given and appropriated," he said.
 
In the other decision, Chief Judge Alex Kozinski, who is generally regarded as a conservative, also granted benefits to the same-sex spouse of a staff attorney for the court. He stopped short of overturning the DOMA statute, according to Leonard, a pro-homosexual legal scholar.
 
“In his decision, Judge Kozinski said he could reinterpret the benefits law in such a way that it doesn’t require recognition of the (same-sex) marriages as such -- he could just recognize these people as members of the family,” Leonard told CNSNews.com.
 
“That interpretation of the statute helped him to avoid having to deal with the constitutionality of DOMA, but in his opinion, Judge Reinhardt felt that that interpretation was not plausible, and the statute clearly required that someone be a spouse in order to be added to the employee benefit plan,” Leonard added.
 
Dacus said defenders of traditional marriage believe the 9th Circuit rulings will inspire other judges to make similar decisions.
 
“While these decisions are not binding upon any of the federal courts or circuits, nonetheless, other judges know about them, and the decisions will, without question expand the debate about whether DOMA should be declared unconstitutional,” Dacus said, “and, more imminently, whether Congress is going to give into pressures to pass legislation that will repeal DOMA – and give taxpayer funded benefits and subsidies to homosexual partners in violation of the original DOMA provision.”
 
Dacus said, without question, Congress will attempt to repeal DOMA.
 
“The only question is whether, the Republicans in the Senate, with their 41 votes, have enough determination and resolve to filibuster to prevent it from being passed,” Dacus said. “That is yet to be seen.”
 
Leonard agreed that action to nullify DOMA is more likely to come from Congress than from the Supreme Court.
 
“It may very well be that the whole issue will be mooted before it comes to a Supreme Court decision because during his campaign, and on his Web site at the White House now, President Obama said that he favors repealing DOMA,” Leonard said. “If it is repealed and replaced with some other mechanism for dealing with this issue, then the courts will never have to opine on its constitutionality.”

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