This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine...to require a closer than usual review...
Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity. ...
If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test. ...
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
"Two of the three judges who decided the case Thursday were Republican appointees, while the other was a Democratic appointee. Judge Michael Boudin, who wrote the decision, was appointed by President George H.W. Bush, while Judge Juan Torruella was appointed by President Ronald Reagan. Chief Judge Sandra Lynch is an appointee of President Bill Clinton."
“Liberal federal judges in Massachusetts and California have resorted to making up legal standards in order to justify redefining marriage,” said Brian Brown, president of The National Organization for Marriage. “They realize the legal precedent doesn’t allow them to redefine marriage, so they are making up new standards to justify imposing their values on the rest of the nation. It is clear that the U.S. Supreme Court is going to have to resolve this issue once and for all. … It’s obvious that the federal courts on both coasts are intent on imposing their liberal, elitist views of marriage on the American people.”
"This is one more powerful statement now from an appellate court following four other federal courts that the so-called Defense of Marriage Act is indefensible under the constitution and should be discarded," Evan Wolfson, founder and president of Freedom to Marry, told msnbc.com. "It’s obviously a great victory not just for families harmed by federal marriage discrimination but for the country. Hopefully it will help us get back to our normal practice of the federal government respecting the marriages celebrated in the states without a gay exception."
NOM’s Brian Brown To Dine And Debate With Dan Savage
... Brown has accepted Dan Savage’s invitation to join his family for dinner and have a recorded debate moderated by Mark Oppenheimer from the New York Times. His only stipulation was that he wanted to bring his own camera crew, just to ensure that neither side distorts the debate.
... The recorded meeting of these two dining and debating will be a serious milestone to watch — twice, to see what both camera crews capture and edit.
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem…, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888),
"Let me lay down a public challenge to Dan Savage right here and now: You want to savage the Bible? Christian morality? Traditional marriage? Pope Benedict? I'm here, you name the time and the place and let's see what a big man you are in a debate with someone who can talk back. It's easy to make high-school girls cry by picking on them. Let's pick on someone our own size!
I'm here, any time, any place you name, Dan Savage. You will find out out [sic] how venal and ridiculous your views of these things are if you dare to accept a challenge."
"Where? My dining room table. Place? Seattle, Washington. Here's the deal. We [could] fill a room with your screaming partisans and my screaming partisans and we can both fill a room with our respective peanut galleries and I think both of us have a little bit of grandstander in souls and we will work that and I think that will create more heat than light. And so what I'd like to do is challenge you to come to my house for dinner. Bring the wife. My husband will be there. and I will hire a video crew and we will videotape sort of an after dinner debate.
And the trick here is you have to knowledge my humanity by accepting my hospitality and I have to acknowledge yours by extending my hospitality to you.
[My straight stay-at-home dad neighbor has] offered to cook the meal so that no homosexuals will have their fingers in your food before it gets to you, and we'll serve it family style so that nobody can adulterate something that's served just to you. I want you to be welcome. We will be nice. John will cook.
Are we on? Ball's in your court."
It is true that DOMA intrudes extensively into a realm
that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago, [t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.
Ever since House Speaker John Boehner (R-Ohio) signed on last year to defend the Defense of Marriage Act (DOMA) in court, it's been a mystery trying to figure out where, exactly, he was getting the taxpayer funds to pay for it.
But those numbers became clear Tuesday as lawmakers sparred over the point, and the costs, of the House hiring outside attorneys to defend the federal ban on gay marriage at a time when money is tight and when various courts -- but not the U.S. Supreme Court -- have ruled that the law is unconstitutional.
Boehner so far has collected $742,000 to defend DOMA, and that money was skimmed from funds that would normally go toward House officer and employee salaries, Chief Administrative Officer Dan Strodel told members of a House Appropriations subcommittee. Strodel said none of that money came out of the budget of the Justice Department, which dropped its defense of DOMA in February 2011 after Attorney General Eric Holder determined it to be unconstitutional. Boehner, in his authority as speaker, has been defending the law on behalf of the federal government ever since.
House leaders agreed to a contract in October 2011 to spend as much as $1.5 million in their defense of DOMA.
"Filing joint income tax returns with the IRS and state taxing authorities.
Creating a 'family partnership' under federal tax laws, which allows you to divide business income among family members.
Inheriting a share of your spouse's estate.
Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.
Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.
Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse’s behalf.
Receiving Social Security, Medicare, and disability benefits for spouses.
Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.
Receiving public assistance benefits.
Obtaining insurance benefits through a spouse's employer.
Taking family leave to care for your spouse during an illness.
Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.
Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.
Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.
Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.
Consenting to after-death examinations and procedures.
Making burial or other final arrangements.
Filing for stepparent or joint adoption.
Applying for joint foster care rights.
Receiving equitable division of property if you divorce.
Receiving spousal or child support, child custody, and visitation if you divorce.
Living in neighborhoods zoned for 'families only.'
Automatically renewing leases signed by your spouse.
Receiving family rates for health, homeowners', auto, and other types of insurance.
Receiving tuition discounts and permission to use school facilities.
Other consumer discounts and incentives offered only to married couples or families.
Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.
Receiving crime victims' recovery benefits if your spouse is the victim of a crime.
Obtaining immigration and residency benefits for noncitizen spouse.
All the more reason to pull for an Obama victory. He might not be perfect himself, but I don't want Mittens picking new Justices.
the GOP frankly doesn't give a shit about gay marriage or any of the other big conservative christian issues, except insofar as it gets them votes, and that the Supreme Court legalizing gay marriage just gives them another issue like Roe V Wade to gin up votes from the ever-shrinking pool of backwards bigots that vote on that shit
KQED's Scott Shafer said this is almost surely the decision on whether to rehear the case en banc. An en banc panel is made up of 11 judges, chosen at random from the circuit.
If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case.
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