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Globe Editorial

Gay rights by law, not vote

February 28, 2010

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REGARDLESS OF the political controversy surrounding same-sex marriage, federal judges still must address the basic question in two cases now before the courts: Is it constitutional and just to deny people rights because of their sexual orientation? The answer is no. And that principle should guide judges - both in a Massachusetts challenge to the federal Defense of Marriage Act and in a challenge to an antigay-marriage ballot measure in California.

Massachusetts Attorney General Martha Coakley has sued to strike down 1996 federal law, and last week asked a judge to rule on the case without a trial. The unfairness of the law is evident. The federal Defense of Marriage Act denies these couples benefits that other married couples in the Commonwealth take for granted, including Social Security payments owed to someone whose lifelong partner has passed away and the ability to get a green card for a spouse who is a legal immigrant from another country. There is no legal justification for singling out legally married same-sex couples for this disparate treatment.

A separate lawsuit in California challenges the constitutionality of a ballot measure that prevents same-sex marriages from being recognized by the state. That federal court must consider whether the civil rights of a distinct, often maligned group of citizens should supersede the result of a popular vote.

Opponents of same-sex marriage rail against “activist judges’’ and point out - accurately - that they have prevailed in every state where voters have had a direct say on the issue. Time and again, though, minority groups that are subject to prejudice have often asked the courts to protect their rights precisely because the majority of the population declines to do so. If courts retreated from decisions unpopular in some states, schools might still be segregated white from black. Public sentiment on same-sex marriage does not relieve the courts of their duty to uphold equal protection under the law.

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