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Author Topic: Defense of Marriage Act Ruled Unconstitutional
stayne
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Some here have tilted with me on this matter before, and know that I have been opposed to the redefinition of marriage to encompass gay couples absent a vote. I note this as a preamble to my main point: I see no flaw in this decision.

The decision is based on the fact that the definition of marriage is a matter for states, not the Federal government, to decide. It seems a clear 10th amendment issue to me.

Does anyone disagree?

This decision further, as far as I can tell, does indeed legitimize same sex marriage via the Full Faith and Credit clause.

It seems to me that no one who stands in defense of the constitution can now oppose ssm on legal grounds without going through the amendment process.

Comments?

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Pete at Home
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I agree that

1. Neutering the definition of marriage is neither constitutionally required, nor ultimately desirable for society.

2. That DOMA itself seemed unconstitutional

I haven't read the decision yet (don't know what it's called) so I can't say whether it legitimizes ss"m" through the Full Faith and credit clause.

Like I've said here since the Goodridge atrocity first appeared, the only way to protect the meaning of marriage is a constitutional amendment. In the past I've hoped for some sort of compromise that would nationally legitimize ssus while protecting the meaning of actual marriage. But that kind of bipartisanship is dead. I see this largely as McCain's fault, since he blocked discussion of the Amendment back when it was more viable.

quote:
It seems to me that no one who stands in defense of the constitution can now oppose ssm on legal grounds without going through the amendment process.
There I disagree with you. I believe that the Supreme Court will evicerate the ssm logic. Best thing we can do is get a case before them as soon as humanly possible. There simply aren't enough postmodernists on the Court to buy into the Goodridge pseudologic.
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Pyrtolin
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DOMA has long stood as a completely unconstitutional law that was just waiting to be struck down for exactly the reason that you note.

More to the point, though, government should be in the business of recognizing and supporting stable family units. Marriage, however you regard it, shouldn't be a matter of a vote because it should be tangential to government to begin with. It's a common way to announce commitment to a family unit, but its the result, not the means that matters.

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stayne
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Pete, I am assuming the FFCC will be used to demand other states recognize marriage in Massachusets. I don't see an argument against that.

Do you really think the supreme court will ignore the 10th ammendment? I cannot see how the definition of marriage does not rest with the states. What kind of argument could even be presented?

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Pete at Home
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quote:
Do you really think the supreme court will ignore the 10th ammendment? I cannot see how the definition of marriage does not rest with the states.
Absent an amendment, the definition rests with the states, yes. And good faith and credit should not force a state to change its definition of marriage.


quote:
Originally posted by stayne:
Pete, I am assuming the FFCC will be used to demand other states recognize marriage in Massachusets. I don't see an argument against that.

I do, and it's the same point that distinguishes Goodridge from Loving v. Virginia. The difference between a prohibited marriage, and a legitimate arrangement that is not marriage, by definition.

As I see it, states need to recognize MA same sex "marriages" but need not recognize them as "marriages." They can say, in our state, marriage means what it's always meant, but we recognize your civil union.

[ July 09, 2010, 10:20 PM: Message edited by: Pete at Home ]

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Pete at Home
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quote:
Originally posted by Pyrtolin:
its the result, not the means that matters.

(you can't legislate results).
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Pyrtolin
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quote:
Originally posted by Pete at Home:
quote:
Originally posted by Pyrtolin:
its the result, not the means that matters.

(you can't legislate results).
That's a non sequitur in context here.

You can legislate support for family units and leave the issue of ceremonies to formalize them up to personal or community control.

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Pete at Home
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Article on the ruling

quote:
Tauro ruled on two cases, one filed by Massachusetts Attorney General Martha Coakley and the other by Gays & Lesbian Advocates & Defenders, a New England–based advocacy organization. His decisions apply only to Massachusetts residents. In those rulings, Tauro wrote that DOMA, enacted by Congress in 1996, violated the 10th Amendment of the Constitution by encroaching upon the state’s right to define marriage. It also violated the Constitution's equal-protection clause. In essence, since the federal law does not recognize same-sex marriage (though it's been legal in Massachusetts since 2004), Massachusetts would have to discriminate against same-sex couples by denying them the federal benefits straight married couples receive.


[b]Though the ruling may be a major victory for gay couples in Massachusetts, several law professors and supporters of gay-marriage are afraid the decisions will be appealed.[b]

gee, ya think? [LOL]

quote:
Jack Balkin, a law professor and political and legal blogger, writes that though he supports same-sex marriage, the arguments of Tauro’s decisions are “at war with each other” in both emphasizing a need for state sovereignty but also the federal government’s requirement to regulate family life through federal programs and benefits. Law professor and blogger Steven Taylor writes that were the 10th Amendment ruling the only one, it may “have the effect of reinforcing the constitutionality of bans on same-sex marriage around the country,” by “placing public policy over marriage in the hands of the state.”
Meanwhile:

quote:
The Obama administration is now reviewing the ruling to decide whether the federal government will file an appeal. In June, Justice Department spokeswoman Tracy Schmaler said that though President Obama wants a legislative appeal of DOMA, “until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
Hmm. Can't the states intercede to appeal the ruling, even if Obama drops the ball?
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Pete at Home
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quote:
Originally posted by Pyrtolin:
You can legislate support for family units and leave the issue of ceremonies to formalize them up to personal or community control.

What "supports" one family form may constitute a detriment to another family form.

And the issue of ceremonies is up to personal or community control. The ssm argument has nothing to do with ceremonies.

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Pyrtolin
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quote:
Originally posted by Pete at Home:
quote:
Originally posted by Pyrtolin:
You can legislate support for family units and leave the issue of ceremonies to formalize them up to personal or community control.

What "supports" one family form may constitute a detriment to another family form.
The main issues are access to current system of family supports that are currently only accessible through marriage in most places (and, specific to DOMA, only through marriage per its definition at the federal level) and leaving the term marriage to natural linguistic control. People could still choose to forgo those benefits if they're not interested in them as much as they can do now by keeping their commitments personal or even ceremonial without registering for state recognition.
quote:

And the issue of ceremonies is up to personal or community control. The ssm argument has nothing to do with ceremonies.

So far as the state is concerned, marriage is a particular ceremony of family formation. The government has no business regulating access to that ceremony; just offering equal benefits to all people who commit to forming a family, regardless of how that commitment was formalized on a local level.
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Viking_Longship
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Interview With a Zombie

Tom Woods discussing nullification with an undead interviewer. The concept is better than the actual delivery, but nullification would certainly seem to be an appropriate response to DOMA.

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Pete at Home
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quote:
marriage is a particular ceremony of family formation.
Please distinguish between marriage and WEDDING, rather than putting a strain on semantics that are already choking with ambiguity both inherent and construed.

quote:
The government has no business regulating access to that ceremony
That may be, but in the ssm context it's an astonishing non-issue. I don't think anyone in this topic cares at all if you give SSUs state-regulated wedding ceremonies or if you say that actual marriage partners are married from the moment they sign and don't need an officiator ... it's not remotely relevant to the controversy. It's like you're arguing that the Titanic should have been painted a different color.

[ July 10, 2010, 10:49 AM: Message edited by: Pete at Home ]

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G2
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quote:
Originally posted by stayne:
The decision is based on the fact that the definition of marriage is a matter for states, not the Federal government, to decide. It seems a clear 10th amendment issue to me.

This is the interesting part. We have a huge 10th Amendment movement brewing in the states right now and along come the SC ruling in favor of state's rights specifically siting the 10th amendment.

The court's reasoning on this one may open up the way for more 10th amendment reclamation of states' rights.

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Pete at Home
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It's a US district court ruling, not a SCOTUS ruling, G2. And it's typical perversity for the cultural left to use the 10th Amendment as part of a ploy to use the Fed to force one state's will on forty-nine states.
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G2
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Ah, I misunderstood. Got too many irons in the fire I think, can't keep up with it all. Thanks for the correction.

Still, a 10th amendment rationale from the courts ...

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Pete at Home
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I inferred the same thing from the thread title until I looked up the info and case (which is linked to in para2 of the linked article I provided, IIRC).

You're right that 10th Amendment rationales are rare.

Also, as best I can tell from my skim (correct me if I'm wrong) DOMA hasn't been challenged here in its entirety; just the provisions exempting the feds from recognizing ssm as actual marriage. The portions permitting other states to recognize what they wish as marriage ... I don't think the case facts permit an actual binding ruling there.

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hobsen
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This does seem a surprising decision, and it is unclear how it will fare on appeal.
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Pete at Home
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What did you find most surprising about it, hobsen?
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JWatts
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For someone more familiar with US law, what is the likely future of this law suit? Is it headed for the Supreme Court?

Personally, I like the idea of leaving it up to the states and the argument the states have to agree on this topic seem to be a historical.

I'm working on getting my Professional Engineering certification. It's licensed state by state with a lot of reciprocal agreements between adjacent states. When I'm certified, I'll only be certified in TN and a few surrounding states. If I go to Michigan, I'm not certified and they won't treat me as certified until I pass their exam.

If I have a drivers license, it's only provisionally valid in another US state and if I relocate, I must re-license in the new state within a certain time period (usually 1 year or less). So I'm not sure there is any need for uniformity on the Marriage laws.

Certainly marriage is not required to form a family and hasn't been in decades. There are plenty of people who have formed a family and don't get married.

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G2
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quote:
President Obama has decided that the Defense of Marriage Act is unconstitutional and has asked his Justice Department to stop defending it in court, the administration announced today.

“The President believes that DOMA is unconstitutional. They are no longer going to be defending the cases in the 1st and 2nd circuits,” a person briefed on the decision said.

So much for that. Took Barry only 2 years to figure it out.
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Pyrtolin
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Here's the full statement on the matter:
http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

quote:
In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

It's not that it took two years to figure anything out, it's that it took two years for the law to advance to a court circuit where the DoJ could legitimately choose whether or not to defend the law, instead of being bound by existing precedents.
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hobsen
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quote:
The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.
The first of this paragraph says the Department of Justice will choose which laws to defend, based upon the circumstances of the case in question, and upon its lawyers' evaluation of the arguments which have been advanced. That seems reasonable enough. The last part says the Department of Justice in fact works for the President, and it will do as he wishes in such matters. Since Obama is himself a highly qualified lawyer, this seems reasonable enough in his case, but the Department if I remember followed a similar policy in defending dubious provisions of the Patriot Act according to the wishes of George W. Bush, who had never been admitted to a law school, let alone graduated from one. Without attacking Bush in particular, many Presidents have wanted legislation which violated the Constitution in various ways, so a compliant Justice Department is not always a blessing.
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TheRallanator
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quote:
Originally posted by G2:
quote:
President Obama has decided that the Defense of Marriage Act is unconstitutional and has asked his Justice Department to stop defending it in court, the administration announced today.

“The President believes that DOMA is unconstitutional. They are no longer going to be defending the cases in the 1st and 2nd circuits,” a person briefed on the decision said.

So much for that. Took Barry only 2 years to figure it out.
I assume you're all for Obama on this one since DOMA was explicitly crafted to let the feds interfere with state legislatures.
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Ben
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Whether or not y'all support or oppose DOMA, I'm just wondering what the long term ramifications are of the DOJ and president's decision to not defend it. Say a Republican won and became president in a couple years, could that president then declare ObamaCare unConstitutional and not defend it or other laws? What are the limits or checks and balances here? IANAL so I'm trying to understand this better.
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TomDavidson
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quote:
Say a Republican won and became president in a couple years, could that president then declare ObamaCare unConstitutional and not defend it or other laws?
Yes. This is in fact not unprecedented.
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TheRallanator
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quote:
Originally posted by Ben:
Whether or not y'all support or oppose DOMA, I'm just wondering what the long term ramifications are of the DOJ and president's decision to not defend it. Say a Republican won and became president in a couple years, could that president then declare ObamaCare unConstitutional and not defend it or other laws? What are the limits or checks and balances here? IANAL so I'm trying to understand this better.

Well I think he'd have to make at least a token effort to argue that it's unconstitutional by getting a few dudes in the DoJ to take a look at it and say "In our opinion Mr President this is unconstitutional. Oh and thanks for giving us promotions and raises for conducting this study". Or he could just quietly ask the DoJ to pay less attention to a particular statute. Federal obscenity laws, for example, seem to get invoked or ignored based purely on how much of a rat's ass the sitting president gives about sucking up to moral majority voters.

EDIT: Oh and with Obamacare though, our hypothetical Republican president would probably have to take it to court and get it overturned if he wanted to ignore it. It involves moving federal money around and restructuring some government departments, and I'm pretty sure the president can't order everyone to ignore that sort of business unless a judge says "Holy crap how the hell is this even legal?"

[ February 25, 2011, 07:18 PM: Message edited by: TheRallanator ]

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Ben
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TomD, could you point me at a few precedents to look up? Were there checks or balances pushing back at these occassions? Thanks in advance.

TheRallanator, good point about the difference in scale + impact on the Federal government that may be involved in different laws, though a couple judges have already ruled against ObamaCare, so why couldn't the hypothetical Republican president decide to side with that anyway? Alternatively, Obama's administration has been granting waivers to quite a lot of companies and unions. By that action, he seems to admit the law isn't well written as is if not outright bad. This action also veers into rule of whim and tyranny rather than rule of law with checks and balances.

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jimskater
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quote:
Originally posted by JWatts:
For someone more familiar with US law, what is the likely future of this law suit? Is it headed for the Supreme Court?

Personally, I like the idea of leaving it up to the states and the argument the states have to agree on this topic seem to be a historical.

I'm working on getting my Professional Engineering certification. It's licensed state by state with a lot of reciprocal agreements between adjacent states. When I'm certified, I'll only be certified in TN and a few surrounding states. If I go to Michigan, I'm not certified and they won't treat me as certified until I pass their exam.

If I have a drivers license, it's only provisionally valid in another US state and if I relocate, I must re-license in the new state within a certain time period (usually 1 year or less). So I'm not sure there is any need for uniformity on the Marriage laws.

Marriage has been declared a fundamental right by multiple US Courts, up to and including the US Supreme Court. It's also enshrined as a fundamental right in many, if not most, state constitutions. Whether that right includes same sex marriage is a central issue in the DOMA cases (and in the Prop 8 trial).

A license to drive or practice engineering are privileges granted by the state.

There's a vast difference between a right and a privilege. Your suggestion re: leaving it up to the states unjustly minimizes that difference and highlights why federal recognition of SSM is so important. I married my husband in California. If he goes to Pennsylvania to visit family & has a car accident, I would have no rights whatsoever to determine his care or to even bring his body home for burial--because, in Pennsylvania, I'm a legal stranger to him.

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hobsen
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quote:
in Pennsylvania, I'm a legal stranger to him.
That seems unduly pessimistic. Pennsylvania can pass laws asserting that, but the Constitution requires all states to recognize marriages performed in any of the others. In the long run, people will be challenging such Pennsylvania laws and collecting damages for violations of their Constitutional rights. Like the DOMA itself, such attempts to declare a state above the Constitution will inevitably be struck down. Meanwhile you might indeed have practical difficulties, depending on whom you happened to encounter, but the ultimate arbiter is the Supreme Court. And however conservative its justices may be right now, they are unlikely to rule that states can refuse to comply with Supreme Court decisions. Protecting their own power matters more to them than any individual issue which happens to come before the Court.
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jimskater
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Hobsen,

Maybe I should have used Florida as an example instead. Or maybe Georgia? I love New England in the fall, maybe I should go to Rhode Island? But then I'm one of the lucky ones. I was at least able to get married in California.

I agree with you that DOMA is unconstitutional. Equal Protection and the Full faith & credit clause, etc. The issue will make it to Supreme Court, where I hope the Court finds DOMA unconstitutional. The above links took five minutes to find; they illustrate that

a) leaving it to the states isn't such a good idea.

b) make other arrangements, just don't call it marriage isn't such a good idea, either.

edited for clarity & to add:

With all the news about DOMA, the Prop 8 trial and NOM's arrogance regarding campaign finance law, my head's in this space tonight Rant Mode (link NSFW due to salty language and a touch of bitter). Maybe I should just call it a night and get some sleep.

[ March 04, 2011, 02:08 AM: Message edited by: jimskater ]

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hobsen
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Even if DOMA is thrown out, same sex couples will continue to be attacked by prejudiced individuals. But the first link you posted involves an old case in which someone was denied hospital visitation, and the article makes clear that is now against federal rules for all hospitals receiving funds for Medicare or Medicaid. Today someone might still be denied in that matter, but the hospital administration might change its mind quickly if a tough lawyer told them they would be sued in civil court and also face an organized protest against their eligibility for federal funds as a result of their action. Even at the time, the victim should have hired a lawyer at once to protest both to the individual administrator and to the hospital board of governors or whatever, rather than suing the hospital after the damage had been done. A fact of life is that prejudiced individuals often run a bluff to try to uphold their beliefs, but they may back down if it becomes clear their job could be on the line.

The second link involved a church which folded on its promise to hold a memorial service rather than split the congregation - and that will remain legal. As for the Rhode Island governor, he has a right to his opinion of same sex marriage, and to veto bills as he chooses. That may help him politically, or he may find it costs him crucial votes in the next close election. In politics enemies have longer memories than friends, so he made a dangerous choice I think.

In the long run people will change their beliefs to match the law, but that will take a couple of generations. Today some people are still lauding the Confederacy for supporting slavery, and decrying the innovation of votes for women, but they are no longer a significant fraction of the population. Sorry there is no better news.

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