Federal Judge Rules Portion of DOMA (gay marriage ban statute) Unconstitutional

[skinsmarydu]

I hope it's not you, twa. Swear to whatever, your thinking scares the piss right outta me.

Gotta go just thinkin' about it.

[AsburySkinsFan]

would it be a cowards way out if they rule the Prop8 defenders have no standing as well?....or would they be following the law?

Not a clue, I have no understanding of the legitimacy of the standing of Prop 8 before SCOTUS.

I hope they issue a definitive ruling on the inherent right to marriage....yea or nay, I would like clarity

As would I, but it seems they're not going to do so. Sounds like they are leaning to allowing the states to decide, which is absurd, because the whole argument for state's deciding something individually is so that they can tailor the local laws to meet local needs. Hence, Kentucky doesn't need laws that deal with oceanic coastlines. But, marriage is not an isolated or regional issue.

[skinsmarydu]

That would be a cowards way out for Scalia, because it takes all of a half second to realize that Obama won't be President forever.

Both in our house would probably vote for him lifetime...some things scare me, but they're usually only productions of former administrations. (I want the Patriot Act repealed.)

He's real, and communicates with the people. He doesn't say "this is what we're gonna do" with a period. He brings topics of law to the citizens, and more people like his thinking compared to the other side.

[twa]

http://althouse.blogspot.com/2013/03/obama-thinks-its-important-for-court-to.html

The standing problem in the DOMA case resulted from Obama's own decision not to defend the law. I'm sure Obama — as an erstwhile lawprof — knows that the Supreme Court doesn't just "weigh in" on issues. It can only decide real adversarial disputes between parties, and his refusal to defend the federal statute is the basis of the argument that this is not a "case" within the meaning of Article III of the Constitution.

even worse they dipped their toe in from time to time

[skinsmarydu]

I realize in Texas (and I pronounce it ta-has, as it should be) SSM may never be recognized, and with my hubby being offered a job there with alot more money doesn't change either of our minds. Just so ya know, we're avoiding your state like the plague.

[Larry]

I hope they issue a definitive ruling on the inherent right to marriage....yea or nay, I would like clarity

They did. In 1967.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

(And that ruling, was based on a previous ruling.)

You just don't like that ruling.

(Which isn't necessarily something evil. There have been lots of SC rulings that I think a whole lot of people legitimately disagree with. Rulings where I think our nation would have been better off if they'd never occurred. For example, I suspect that a whole bunch of us would put Korematsu in that category.)

What makes somebody wrong, isn't disagreeing with the SC. It's supporting a position that's Wrong.

(Fortunately for me, in this case, you're doing both. )

[twa]

They did. In 1967.

)

And what are you obviously leaving out?

I'm sure it will be a revelation to the countless judges that have ruled ignoring your point.:pfft:

If it is legally established as you CLAIM that everyone has a inherent right to marriage,how then do we forbid it to so many groups?

[AsburySkinsFan]

And what are you obviously leaving out?

I'm sure it will be a revelation to the countless judges that have ruled ignoring your point.:pfft:

If it is legally established as you CLAIM that everyone has a inherent right to marriage,how then do we forbid it to so many groups?

Because DOMA defines marriage as between one man and one woman...so if a gay man wants a marriage he can have one under the law...he just has to find a willing woman.

[twa]

Because DOMA defines marriage as between one man and one woman...so if a gay man wants a marriage he can have one under the law...he just has to find a willing woman.

More than DOMA defines it as such, but it certainly does as well

the question of course is who has the power to define it

add

while we await wisdom from the court ,the power traditionally belongs to the states and the legal recognition/status is granted thru a licence as Rep King talks about here

http://www.nationalreview.com/corner/344128/marriage-illegal-without-license-congressman-steve-king

but that ignores whether it is a inherent right(which the court acknowledged in Loving as pre-existing between a male and female) and the issue before them then became could it be denied because of race.

Does the fact the right to marry of a male and female existed already(and the justification for it) matter?

or just the fact they had denied it because of race

[Larry]

And what are you obviously leaving out?

Absolutely nothing. I quoted the entire sentence.

For probably the fourth time.

Here's a hint: If you really want to try to push the mythical argument of "that sentence doesn't have the word "gay" in it, therefore it doesn't apply to gays", then how about actually stating your dishonest position, (and get beaten over the read with how stupid and dishonest it is), instead of trying to drop hints that I'm somehow altering a quote which I'm accurately making.

You want to push an idiotic position, feel free.

You want to accuse me of "obviously leaving [something] out"? Back up what you're shoveling.

If it is legally established as you CLAIM that everyone has a inherent right to marriage,how then do we forbid it to so many groups?

The same way that the government justifies infringing on all of our other rights? A compelling societal reason why it is necessary, for the good of society, to restrict people's freedom?

Just a theory.

[Lombardi's_kid_brother]

They did. In 1967.

You just don't like that ruling.

(Which isn't necessarily something evil. There have been lots of SC rulings that I think a whole lot of people legitimately disagree with. Rulings where I think our nation would have been better off if they'd never occurred. For example, I suspect that a whole bunch of us would put Korematsu in that category.)

What makes somebody wrong, isn't disagreeing with the SC. It's supporting a position that's Wrong.

(Fortunately for me, in this case, you're doing both. )

Larry, I'm actually on your side here, but I find this argument to be pretty lazy. I don't think you can simply say that Loving is precedent here without acknowledging that the pairing in Loving was quite different than what we are talking about now. You need to make the argument that a same-sex couple has the same fundamental marriage rights as a heterosexual couple. I think you can make that argument, but you can't just shortcut it.

The real question - from a legal perspective - is what level of protection to homosexuals fall into? I have to admit that I would not be happy with applying strict scrutiny here, since women have never gotten that level of protection under the 14th Amendment. The court essentually would be going from no 14th Amendment rights to strict scrutiny in ten years.

But, I think you can argue that Congress lacks even a rational basis for denying this right to homosexual couples. Marriage is a stabilizing force and should be encouraged. There is no longer any legal reason to exclude Homosexuals from mainstream society; in fact the trend is to embrace them. You cannot outlaw their behavior. States - including conservative outposts like Texas - allow them to adopt. State legislatures have granted them the right to marry. Voters in other states have done so. There is no rational reason for this law to exist at this point aside from an out-dated belief in the evil of a behavior. A belief that is rapidly dying.

I think ultimately this is the reason why DOMA is doomed while Prop 8 may hold on for a while. Congress enacted DOMA and SCOTUS has no problem smacking Congress' hand. On the other hand, Prop 8 is a voter-driven proposition that is governed by California's bizarre rules. I think SCOTUS will feel a little more restraint in smaking the voters' hands.

Just my theory though. I think DOMA will definitely lose. I'm not sure about Prop 8. And I agree with Predicto, it's not wise to base your predictions on the questions the judge's ask. I WAS a little taken aback by Breyer's questions on standing. I didn't expect that. But he could turn around and write the majority opinion that strikes down Prop 8.

[DjTj]

If it is legally established as you CLAIM that everyone has a inherent right to marriage,how then do we forbid it to so many groups?

Because DOMA defines marriage as between one man and one woman...so if a gay man wants a marriage he can have one under the law...he just has to find a willing woman.

I don't think the courts that have denied the due process right have used this reasoning. Generally the courts recognize a fundamental right to marry but find that the state has a legitimate interest in restricting marriage to heterosexual couples because it is beneficial to promote "traditional marriage," it is better for children, or some other justification. That was the focus of much of the Supreme Court argument - how strong is the state's interest in restricting homosexual marriage?

The real question is how strong the state's interest needs to be to pass the Constitutional test. For racial (or religious or national origin) classifications, there is strict scrutiny on the state's interests, and it is very hard to find a racial classification Constitutional. For gender classifications, the court applies a slightly lower intermediate scrutiny (although Ginsburg is pushing it to be as strict as possible), and for other classifications (age, income, etc.) the state can discriminate just based on a rational basis test. So depending on where on the spectrum sexual orientation falls, the court could uphold the law based on a pretty weak (but rational) justification rather than one that holds up under stronger scrutiny.

[Lombardi's_kid_brother]

I For gender classifications, the court applies a slightly lower intermediate scrutiny (although Ginsburg is pushing it to be as strict as possible), and for other classifications (age, income, etc.) the state can discriminate just based on a rational basis test. So depending on where on the spectrum sexual orientation falls, the court could uphold the law based on a pretty weak (but rational) justification rather than one that holds up under stronger scrutiny.

Up until ten years ago, the precedent was that there was a rational basis to declare homosexuality illegal. So, it would be jarring if the court turned around an applied strict scrutiny today. I wonder if Ginsburg would even be in favor of that when it is not applied to women.

But, I like I said, I think you can apply a rational test and win. You can't just through Loving - a strict scrutiny case - out there and walk away. If have to explain why it applies.

[twa]

DJTJ....isn't the justification/reasons for govt regulating marriage central in this issue?

Unlike Lawrence it is a legal status vs a behaviour

[Lombardi's_kid_brother]

DJTJ....isn't the justification/reasons for govt regulating marriage central in this issue?

Yes. That's what the level of scrutiny argument is about. The strength of the argument has to match the level of scrutiny.

Unlike Lawrence it is a legal status vs a behaviour

I guess. But it is a legal status informed by a behavior.

In a world where Hardwick was precedent, the Court would be tied to its own words on homosexual behavior. How could the Court say Congress is over-reaching in regulating a status tied to this behavior when the Court itself ruled that the behavior can be criminalized? SCOTUS - having essentially normalized the behavior at least in its own view - can now evaluate Congress' regulation of it without that inherent contradiction.

[twa]

The behavior is not determinative in marriage though,as illustrated by those that do not apply for (or qualify) a licence yet live,breed and love w/o govt licence. .

in Lawrence and Loving the govt was making illegal something considered essential to life....does a marriage licence qualify as that?

[Lombardi's_kid_brother]

The behavior is not determinative in marriage though,as illustrated by those that do not apply for (or qualify) a licence yet live,breed and love w/o govt licence. .

Where are you going with this? I'm not going to get into one of your games of "gotcha" where you keep moving goalposts.

[twa]

Where are you going with this? I'm not going to get into one of your games of "gotcha" where you keep moving goalposts.

I'm just wandering around chasing butterflies in my mind...no gotcha

if there is a point at all it is related to the reason govt gives to regulate marriage in the first place.

it obviously is not the sex or cohabitation

[Jumbo]

I'm just wandering around chasing butterflies in my mind...

You know me...gotta do it

http://www.youtube.com/watch?v=h77P4aXLr7c

[Lombardi's_kid_brother]

I'm just wandering around chasing butterflies in my mind...no gotcha

if there is a point at all it is related to the reason govt gives to regulate marriage in the first place.

it obviously is not the sex or cohabitation

Here is the thing: government doesn't really regulate marriage. It sets some age limits. It makes you fill out a form. It puts that form in a big book. And that's the state government. Aside from the tax code, what does the Federal Government do to "regulate" marriage? Can you name anything?

I guess state governments also regulate divorce, but not really. Unless I'm missing something, every state is now a no-fault state. Most divorces can - and should - be handled by arbitrators who then are rubber-stamped by a judge. There is no federal law on divorce that I'm aware of. There are federal laws involving child support, but that's more in the area of enforcing contracts than anything else.

That's why this idea of "get government out of the marriage business" is silly. Government is already out of the marriage business.

[Bliz]

Larry' date=' I'm actually on your side here, but I find this argument to be pretty lazy. I don't think you can simply say that Loving is precedent here without acknowledging that the pairing in Loving was quite different than what we are talking about now. You need to make the argument that a same-sex couple has the same fundamental marriage rights as a heterosexual couple. I think you can make that argument, but you can't just shortcut it.

The real question - from a legal perspective - is what level of protection to homosexuals fall into? I have to admit that I would not be happy with applying strict scrutiny here, since women have never gotten that level of protection under the 14th Amendment. The court essentually would be going from no 14th Amendment rights to strict scrutiny in ten years.

But, I think you can argue that Congress lacks even a rational basis for denying this right to homosexual couples. [/quote']

Yes, but women have never gotten that level of protection because one of the elements for that level is that the group has to be a separate and distinct minority. Women make up around 50% of the population. Therefore they are not a "minority" and they get intermediate scrutiny instead. Homosexuals certainly are a separate and distinct minority, and no one is really arguing that, as far as I know. The only question for them is whether or not sexual orientation is an "immutable trait."

I don't know what that phrase means. Now maybe it means that, if you say no it's not, you're implying that homosexuality is a choice. But not necessarily. It could mean that immutable really means physical characteristics. You can look at a person and say "that's a woman" or "that guy's black" but you can't do the same with sexual orientation (and let's forego the obvious and childish jokes on that point). There have been some decisions where regulations targeting gays have been put in the quasi-suspect class (same as women). NOt sure what the SCOTUS did on that front in Lawrence v. Texas, or if they even reached that issue.

[twa]

Here is the thing: government doesn't really regulate marriage..

I find that hard to swallow.

add

they determine who,when,the obligations and how long it exists...if that is not regulating it,what is?

now if we are not talking legal marriage.....

[The Evil Genius]

Here is the thing: government doesn't really regulate marriage. It sets some age limits. It makes you fill out a form. It puts that form in a big book. And that's the state government. Aside from the tax code' date=' what does the Federal Government do to "regulate" marriage? Can you name anything?

[/quote']

There's a few states that still require blood tests - but I agree with your comments.

[Lombardi's_kid_brother]

I find that hard to swallow.

Why? Explain to me how your marriage has been regulated.

[Larry]

Up until ten years ago' date=' the precedent was that there was a rational basis to declare homosexuality illegal.[/quote']

Funny. I could have sworn that it was longer ago than that that the court ruled exactly the opposite:

But checking, looks like I was wrong. 2003.

Now, though, could you point me at the precedent which ruled that there was a rational basis to declare homosexuality illegal? I'm certainly not familiar with it.