Politics: Activist GOP Judges Are Saving Gay Marriage

Last week, a U.S. District Court judge in Boston struck down a significant portion of the Defense of Marriage Act, ruling that the controversial 1996 federal law violates the equal protection clause of the Constitution by denying gay and lesbian couples the federal benefits afforded to straight couples. Although Massachusetts legalized gay marriage in 2004, couples who wed were prohibited from claiming Social Security survivors' benefits, filing joint tax returns, and leaving work to care for a sick spouse. The court ruled that the federal government must treat the state's gay married couples the same way as everyone else. "The Constitution 'neither knows nor tolerates classes among citizens,'" the court opined, echoing the words of Justice John Harlan, the lone dissenter in Plessy v. Ferguson, the notorious 1896 Supreme Court case that upheld racial segregation.

Nearly as significant as the decision itself is the political affiliation of the judge who made it: 79-year-old Joseph Tauro, the longest-serving appointee of Richard Nixon. Why is this significant? Because while the recent confirmation hearings for Elena Kagan dwelt on whether "activist" liberal judges appointed by Democrats would trample legal precedent, the judges who have begun the constitutional protection of same-sex marriage have mostly been Republican appointees like Tauro.

For more, see How the GOP Is Saving Gay Marriage by Joshua Green, July 14, 2010, at The Atlantic.