In a logical world, you would be 100% correct. But Scalia and company rule based on results, not logic. I have no doubt that the Supreme Court will take this case. It's too shiny and interesting to refuse, even if the rulings so far have been narrowly written to apply only to California. I don't think there is any way Scalia, Thomas, Roberts, and Alito will let stand a precedent that says a gay marriage ban violates the 14th amendment's equal protection clause, even if it's a precedent only in the 9th circuit.
Let's cross our fingers. I am hopeful, if not optimistic. At least we have the sway of public opinion on our side. In another 10 years Prop 8 would be 48 52 instead of 52 48. Things are changing.
N.Y. Federal Court Rules DOMA Unconstitutional
U.S. District Court Judge Barbara S. Jones of the Southern District of New York ruled Wednesday that the section of the Defense of Marriage Act (DOMA) that defines marriage as between a man and a woman is unconstitutional. . . .http://livewire.talkingpointsmemo.com/entries/federal-court-in-new-york-rules-doma-unconstitutional
This latest NY case give the lie to the oft-stated claim that same-sex couples don't need marriage because they can get all the rights and responsibilities of marriage through private contractual arrangements. In this case, Edie Windsor had to pay federal estate tax after the death of her wife Thea Spyer. No private contractual arrangement can change that only. Only legal marriage, recognized by the federal government can change that.
The judge ruled that section 3 of DOMA has no rational basis serving a legitimate government objective.
The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. Bolling v Sharpe (1954)
Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
It's an interesting discussion. I think there's going to be confusion though. I can very easily see someone saying "Wait. How can we call DOMA unconstitutional because it's the fed getting in the way of how the state defines marriage and at the same time say prop 8 is unconstitutional--which is basically the fed getting involved in how a state defines marriage."
The fact that there are federal benefits to marriage means the fed gets to weigh in on marriage, at least for those benefits. I would be mildly amused to see a situation where federal benefits of marriage were allowed to same-sex couples, but any state recognition would be barred due to that state's constitution.
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