Another court declares DOMA Sect 3 unconstitutional

treetop57

Slightly shocked that limited-government conservative George Will recognizes that DOMA isn't consistent with small-government conservative principles:

As the scholars’ brief says, DOMA “shatters two centuries of federal practice” by creating “a blanket federal marital status that exists independent of states’ family-status determinations.” Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. By striking down DOMA — by refusing to defer to Congress’s usurpation of states’ powers — the court would defer to 50 state governments, including the 38 that today prohibit same-sex marriage.

http://articles.washingtonpost.com/2013-03-20/opinions/37870263_1_doma-defense-of-marriage-act-general-police-power

EvanKeel

Slightly shocked that limited-government conservative George Will recognizes that DOMA isn't consistent with small-government conservative principles:

As the scholars’ brief says, DOMA “shatters two centuries of federal practice” by creating “a blanket federal marital status that exists independent of states’ family-status determinations.” Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. By striking down DOMA — by refusing to defer to Congress’s usurpation of states’ powers — the court would defer to 50 state governments, including the 38 that today prohibit same-sex marriage.

http://articles.washingtonpost.com/2013-03-20/opinions/37870263_1_doma-defense-of-marriage-act-general-police-power

In a perverse sort of, batsht crazy libertarian way, I suppose. I have to disagree with his premise that marriage is a state's rights issue. I also have to disagree with his logic that striking it down would somehow legitimize the authority of the states in terms of prohibition of same-sex marriage.

I seriously think that all of this crap is just a chip on State's Rights enthusiast's shoulders about losing the damn civil war. The south lost. Marriage has been declared a right. Move on. I really don't know how (from a conceptual stance, if not legal) we can possibly suggest that same-sex marriage is not a right when 1) Marriage has been declared a right by SCOTUS, and 2) SCOTUS has ruled that homosexuality is a part of identity--that behavior in this case defines identity. Game, set, match. Then again, I'm no where near a lawyer, just one of those people who thinks they're a constitutional scholar when something pisses them off : )

treetop57

As distasteful as you find it, Evan, it looks like the states rights argument is going to be what pushes federal recognition of same sex marriages over the finish line. All the sources I'm reading say Kennedy's questions today make it clear that is his main concern with DOMA.

EvanKeel

As distasteful as you find it, Evan, it looks like the states rights argument is going to be what pushes federal recognition of same sex marriages over the finish line. All the sources I'm reading say Kennedy's questions today make it clear that is his main concern with DOMA.

And depending on how that goes down, could it leave the door wide open for certain states to prevent same-sex marriages from being legal through tyranny of the majority, despite marriage being constitutional right and all? Perhaps those couples could get married in a state where it's legal, and it would be recognized federally, but certainly not locally.

In the long run, I'm not sure I see that as a good thing, but leave it to Kennedy to take the narrowest path possible.

treetop57

Overruling DOMA based on states rights would do exactly what you fear, Evan: Allow states to bar same-sex marriage as well as permit same-sex marriage. Unless the court does something unexpected on the Prop 8 case and finds that denying marriage equality violates federal equal protection.

Sure, I'd like a whole loaf, but I'll take half a loaf for now!