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DOMA doomed
May 31, 2012 10:59 AM   Subscribe

First Circuit Court of Appeals rules Defense of Marriage Act unconstitutional.
posted by klangklangston (97 comments total) 15 users marked this as a favorite

 
Here's a link to the pdf of the court's decision.
posted by MoonOrb at 11:02 AM on May 31, 2012


A step in the right direction.
posted by Renoroc at 11:03 AM on May 31, 2012 [1 favorite]


That's a good article, it has all the links to other things I wanted to read, and a good spectrum of opinions/quotes.

The ruling is stayed, it should be noted, with the Appellate Judge assuming a review from the Supreme Court will be pending.
posted by carsonb at 11:05 AM on May 31, 2012


Whoot.
posted by saulgoodman at 11:07 AM on May 31, 2012


Not a question of state's rights after all, then?
posted by Trurl at 11:09 AM on May 31, 2012 [4 favorites]


I don't know that I'd use the word "doomed" based on this decision, which makes a point of using hedged language and speculative analysis (and says so). It's an interesting read. It runs about 30 pages, but below are the relevant highlights. Basically, the First Circuit concludes that a trend exists in several Supreme Court decisions from the past 50 years. If that trend does exist, and if it applies to this case—both questions for the Supreme Court—then the First Circuit concludes that trend must invalidate DOMA.
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.
TL;DR—It's an interesting decision, but its key phrases are "only the Supreme Court can finally decide this unique case" and "Supreme Court review of DOMA is highly likely."
posted by cribcage at 11:11 AM on May 31, 2012 [7 favorites]


Not a question of state's rights after all, then?

Actually, the opposite!

One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
posted by one_bean at 11:12 AM on May 31, 2012 [17 favorites]


Not a question of state's rights after all, then?

The holding is precisely that the federal definition of marriage as between a man and a woman infringes on the rights of the states that have chosen to legalize same-sex marriage.
posted by eugenen at 11:12 AM on May 31, 2012 [9 favorites]


The holding is precisely that the federal definition of marriage as between a man and a woman infringes on the rights of the states that have chosen to legalize same-sex marriage.

Thank you for the clarification.

But by that reasoning, wouldn't federal recognition of same-sex marriage infringe on the rights of the states that have gone so far as to rewrite their constitutions to explicitly prohibit it?
posted by Trurl at 11:14 AM on May 31, 2012 [2 favorites]


Next up: Double-Super-Secret 59th Circuit Federal Civil Rights Appeals Court...and then to the Supreme Court!
posted by schmod at 11:22 AM on May 31, 2012


But by that reasoning, wouldn't federal recognition of same-sex marriage infringe on the rights of the states that have gone so far as to rewrite their constitutions to explicitly prohibit it?

My understanding is that this ruling is more or less strictly about granting federal marriage benefits to same-sex couples. I don't think a state could tell the federal government whether it can give benefits to couples or not.
posted by dismas at 11:23 AM on May 31, 2012 [3 favorites]


But by that reasoning, wouldn't federal recognition of same-sex marriage infringe on the rights of the states that have gone so far as to rewrite their constitutions to explicitly prohibit it?

Yup.
This ruling, while awesome, essentially kicks the issue back to the individual states.
posted by Thorzdad at 11:23 AM on May 31, 2012 [1 favorite]


assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings

It's wicked hard to assess nonsense, isn't it?

We live in interesting times.
posted by rtha at 11:26 AM on May 31, 2012


This is hardly a new problem for federalism. We already have disparate state laws about whether you can marry your nth cousin, how old you have to be to get married, and so on. But, because of the constitution, states do have to recognize other states' marriages.

The ridiculous idea that the Full Faith and Credit Clause suddenly vanishes in the presence of DOMA is one the Supreme Court needs to strike down immediately.
posted by 0xFCAF at 11:27 AM on May 31, 2012 [12 favorites]


My understanding is that this ruling is more or less strictly about granting federal marriage benefits to same-sex couples. I don't think a state could tell the federal government whether it can give benefits to couples or not.

This.

The repeal of DOMA and/or passage of the Respect for Marriage Act would allow the federal government to provide benefits to couples in a same-sex marriage but wouldn't force states to recognize same-sex marriages. That is something that would be handled either by a separate (i.e. non-DOMA) ruling by the Supreme Court or amending the US Constitution.
posted by zombieflanders at 11:28 AM on May 31, 2012 [1 favorite]


But by that reasoning, wouldn't federal recognition of same-sex marriage infringe on the rights of the states that have gone so far as to rewrite their constitutions to explicitly prohibit it?

Maybe, maybe not. The Court found that the federal government's rationales for DOMA do not pass the heightened level of scrutiny required of statutes that discriminate against historically disadvantaged minorities in hurtful ways (the Court is very vague about what that level of scrutiny is and what qualifies a statute for that level of scrutiny) and that impinge on federalism principles. The court didn't reach the question of whether the former without the latter would be sufficient to invalidate DOMA, or whether the hostility toward gays that presumably motivated the statute would be sufficient to invalidate DOMA.

So who knows. The panel was very careful to avoid such implications.
posted by eugenen at 11:28 AM on May 31, 2012 [1 favorite]


Is it correct to think of it in terms of "So it's a state rights issue, why have DOMA?" or "Hey, anti-gay marriage folks, you can't have it both ways" because that's always something I've wondered when I try to apply logic to the arguments...which I realize is sometimes a lost cause.
posted by MCMikeNamara at 11:29 AM on May 31, 2012


This ruling only addresses Section 3 of DOMA, which prevents the federal government from recognizing same-sex marriages. It does not address the other half (Section 2), which allows states to deny recognition to SSMs performed elsewhere.

If anyone is interested in a thorough discussion of how the Full Faith and Credit clause intersects with Section 2, this is a great article.
posted by thewittyname at 11:29 AM on May 31, 2012 [3 favorites]


I would expect that repealing DOMA would open the gate for a pretty clear cut case to force all states to recognize same-sex marriages, with Loving v. Virginia as the basis.
posted by rmd1023 at 11:29 AM on May 31, 2012 [2 favorites]


I see I answered a slightly different question than what Trurl was asking. Dismas has it.
posted by eugenen at 11:31 AM on May 31, 2012


More like D'oh-MA, amirite?
posted by The 10th Regiment of Foot at 11:32 AM on May 31, 2012 [1 favorite]


Thorzdad: "This ruling, while awesome, essentially kicks the issue back to the individual states."

Yes, but it's a BFD for married gay couples living in states that do recognize their marriage. Among other things, it's a nightmare for these people to file their taxes, as their legal status differs in the eyes of the state and federal government.

In this case, passing the buck to the states is a definitive improvement over the status quo.
posted by schmod at 11:33 AM on May 31, 2012 [2 favorites]


Scalia is the new ShamelessCheney®
posted by Fupped Duck at 11:34 AM on May 31, 2012


I would expect that repealing DOMA would open the gate for a pretty clear cut case to force all states to recognize same-sex marriages, with Loving v. Virginia as the basis.

The current Supreme Court is likely to make the equivalent of a party-line ruling on ACA that invalidates most of the New Deal and Great Society this year using (if their comments during the oral arguments are anything to go by) what are essentially GOP talking points. I don't think this is anywhere near clean-cut.
posted by zombieflanders at 11:34 AM on May 31, 2012 [1 favorite]


This was the sentence that leaped out at me:

Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

It seems to me that if the field of battle shifts to "permissible interests", the states will have a higher hurdle to clear in justifying why queers have to ride at the back of the bus.
posted by Trurl at 11:40 AM on May 31, 2012


The current Supreme Court is likely to make the equivalent of a party-line ruling on ACA that invalidates most of the New Deal and Great Society this year using (if their comments during the oral arguments are anything to go by) what are essentially GOP talking points. I don't think this is anywhere near clean-cut.

I hope it reverses the governemental overreach that stops me from leaping from the train wherever I damn well please. Train stations are anathema to liberty.
posted by IvoShandor at 11:49 AM on May 31, 2012


When I saw the headline, I automatically assumed the action was taken by the 9th Circuit which means that the almost knee jerk response by the Supremes would be to overrule it. But, coming out of the 1st Circuit, it might have a chance.
posted by Leezie at 11:49 AM on May 31, 2012


Ah, waiting for the right-wingers to moan about 'activist judges', blah, blah, blah.

But, wait-a-hold-it:
"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."
posted by ericb at 11:49 AM on May 31, 2012


Trurl: It seems to me that if the field of battle shifts to "permissible interests", the states will have a higher hurdle to clear in justifying why queers have to ride at the back of the bus.

I don't think the hurdle is higher, there's just more for states to rebel against. "Look at us, we're more conservative than the Federal standards" is not terribly uncommon at the state level, civil rights are quite different from environmental regulations.
posted by filthy light thief at 11:50 AM on May 31, 2012


Interesting analysis of the finding here.
posted by ericb at 11:51 AM on May 31, 2012


Republican or Republican-appointed judges haven't stopped wingers from moaning before. Judge Walker (1st judge to move to block Prop 8 via Perry v Schwarzenegger) was appointed by Bush I.
posted by zombieflanders at 11:53 AM on May 31, 2012


ericb: Ah, waiting for the right-wingers to moan about 'activist judges', blah, blah, blah.

But, wait-a-hold-it:


Indeed -- I applaud Metro Weekly for including that information, but I could see right-wingers complaining about those "old-timer judges" being "out of touch with the conservative values of today," or some other BS. Fear is a powerful motivator, allowing people to toss aside logic.
posted by filthy light thief at 11:53 AM on May 31, 2012


I like the result, but confess that this is not among the more clearly written decisions I've read lately. And I've read an awful lot of poorly written decisions.
posted by MoonOrb at 11:53 AM on May 31, 2012 [1 favorite]


"Do ma" means something like "fuck your mother" in Vietnamese.
posted by Burhanistan at 11:55 AM on May 31, 2012 [2 favorites]


It means about the same thing in America. Just without that whole mother business.
posted by Blue_Villain at 11:57 AM on May 31, 2012 [2 favorites]


Here we go:
“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.”
posted by ericb at 11:58 AM on May 31, 2012


*****************************************************************
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************************** THROWS *******************************
************************** CONFETTI ******************************
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****************************************** \0/ yay!
posted by liza at 11:59 AM on May 31, 2012 [7 favorites]


How would federal marriage recognition work, post-Section-3-repeal?

Let's say I get married to another woman in Massachusettes, and receive the federal marriage benefits that I'm entitled to. Then, I move to Texas where my marriage is not recognized. Would I still receive federal benefits? Would I file single on state taxes and married on federal taxes? Or is my marriage license, essentially, revoked?

Or would that be something that would have to be interpreted by the courts?
posted by muddgirl at 11:59 AM on May 31, 2012 [4 favorites]


Here we go

It feels like it was written by a markov-chain conservative text generator.
posted by TwoWordReview at 12:01 PM on May 31, 2012 [5 favorites]


The arc of history bends towards justice.
"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."
posted by ericb at 12:01 PM on May 31, 2012


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.

In related news ...
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.
posted by ericb at 12:10 PM on May 31, 2012 [6 favorites]


Some of the text from the verdict is just fantastic:
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.
There you have it. A federal appeals court went on record to state that it does not believe that gay marriage harms heterosexual marriage. This might seem obvious to anybody with an active brain stem, but it's a really big deal for it to come out of a federal court.
posted by schmod at 12:21 PM on May 31, 2012 [16 favorites]


PLEASE TELL ME DAN WILL BE SERVING SCHNITZENGRUBEN!!!
posted by It's Raining Florence Henderson at 12:22 PM on May 31, 2012 [7 favorites]


Not a question of state's rights after all, then?

The law is unconstitutional. The President has been committed to its repeal since before the election of 2008. It is a federal law. Whether or not an individual state can marry another is a question of state law--for marriage is squarely under the police power and the federal government may not issue marriage licenses.
posted by Ironmouth at 12:42 PM on May 31, 2012 [2 favorites]


A federal appeals court went on record to state that it does not believe that gay marriage harms heterosexual marriage.

Unfortunately:

... the First Circuit declined to apply heightened scrutiny to DOMA or to any state action that discriminates on the basis of sexual orientation. Also, the court declined to find evidence of Congressional animosity toward gay persons as a sufficient reason for invalidating the law.

The latter would have been nice.
posted by Trurl at 12:43 PM on May 31, 2012


How would federal marriage recognition work, post-Section-3-repeal?

Let's say I get married to another woman in Massachusettes, and receive the federal marriage benefits that I'm entitled to. Then, I move to Texas where my marriage is not recognized. Would I still receive federal benefits? Would I file single on state taxes and married on federal taxes? Or is my marriage license, essentially, revoked?

Or would that be something that would have to be interpreted by the cour


That's for the courts. Frankly, I have no understanding how the full faith and credit clause does not decide this matter immediately for a person married in one state having that marriage recognized in another.
posted by Ironmouth at 12:44 PM on May 31, 2012 [2 favorites]


A federal appeals court went on record to state that it does not believe that gay marriage harms heterosexual marriage.

Unfortunately:

... the First Circuit declined to apply heightened scrutiny to DOMA or to any state action that discriminates on the basis of sexual orientation. Also, the court declined to find evidence of Congressional animosity toward gay persons as a sufficient reason for invalidating the law.

The latter would have been nice.


Only if emotional satisfaction is what you are looking for.

If you are looking for a policy change nationwide and a ruling that equal protection requires that marriage not be limited to only heterosexuals, the former is far, far more important. The heightened scrutiny of Lawrence v. Texas would make it harder for a state government to justify refusing to marry gays.
posted by Ironmouth at 12:46 PM on May 31, 2012


Although the House Report is filled with encomia to heterosexual marriage...

Well, I just learned a new word. It's kind of like the opposite of philippic. Only not quite.
posted by hoyland at 12:48 PM on May 31, 2012 [3 favorites]


"Do ma" means something like "fuck your mother" in Vietnamese.

What I like about Metafilter is that there is a high likelyhood that someone will show up to let us know the exact translation, and how to more precisely say "fuck your mother" in Vietnamese if there is a better term.
posted by furiousxgeorge at 12:49 PM on May 31, 2012 [1 favorite]


Ironmouth, can you point me at a document that explains how marriage and "police power" are related? I have heard this a number of times (in metafilter threads, possibly from you) and I have read in the Loving v. Virginia decision that
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),
but I am obviously missing some background to understanding this.
posted by jepler at 12:50 PM on May 31, 2012


the former is far, far more important

I think I see your point. But surely evidence that a law was conceived for the purpose of being discriminatory ought to be at issue in examining its constitutionality?
posted by Trurl at 12:55 PM on May 31, 2012


NOM’s Brian Brown To Dine And Debate With Dan Savage

Brian Brown earlier this month:
"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."
Dan Savage's response:
"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."
posted by ericb at 12:55 PM on May 31, 2012 [7 favorites]


Cripes almighty, marriage has been redefined so many times it is only peoples complete dis-ingeniousness or ignorance that allows them to make the same old tired argument/s over and over.
posted by edgeways at 12:56 PM on May 31, 2012 [4 favorites]


The states' rights thing is what always baffled me about this. DOMA was crafted in response to a state law. It denies state sovereignty as conservatives define it. And that's what the decision points out in part:
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.
So where's all the talk about constitutional literalism and tradition from the homophobes then? I realize that's a slippery slope to tread on - Democrats who point this out are leaving themselves open for all kinds of social issues to become a states' rights issue. And that's problematic.

As I see it, the only real solution is to take this to the Supreme Court. Basic civil rights should not be legislated on a state level. Encode it, enshrine it, and leave it alone.
posted by Marisa Stole the Precious Thing at 12:57 PM on May 31, 2012


I think I see your point. But surely evidence that a law was conceived for the purpose of being discriminatory ought to be at issue in examining its constitutionality?

It should, and this was one of the central arguments in Perry v Brown, actually.
posted by MoonOrb at 12:58 PM on May 31, 2012


Let's say I get married to another woman in Massachusettes, and receive the federal marriage benefits that I'm entitled to. Then, I move to Texas where my marriage is not recognized. Would I still receive federal benefits? Would I file single on state taxes and married on federal taxes? Or is my marriage license, essentially, revoked?

Who knows. I knew a couple married in Massachusetts who moved to Minnesota, so that year they filed Massachusetts and Minnesota state taxes. They were married on the Massachusetts taxes and single on their Minnesota and federal taxes. Coincidentally, this situation confused the hell out of TurboTax.
posted by hoyland at 1:00 PM on May 31, 2012


So amused that the Republican-majority lawyer group defending DOMA is acronymed BLAG.
posted by nicebookrack at 1:01 PM on May 31, 2012


So amused that the Republican-majority lawyer group defending DOMA is acronymed BLAG.

Noun definition #3 FTW.
posted by zombieflanders at 1:03 PM on May 31, 2012


Yay!
posted by jimmythefish at 1:06 PM on May 31, 2012


Who knows. I knew a couple married in Massachusetts who moved to Minnesota, so that year they filed Massachusetts and Minnesota state taxes. They were married on the Massachusetts taxes and single on their Minnesota and federal taxes. Coincidentally, this situation confused the hell out of TurboTax.

Sure, but as I'm sure you know right now same-sex couples can't file as married, jointly or separately, on their federal tax returns, no matter their state-recognition status. I guess my wider point (and one that Ironmouth made much better than I did) is that the problem with supporting 'states right to determine marriage status' is that, well, we have a federal government that does deal with its citizens outside the purview of states. So if we look at marriage just as a right granted by the state to its current residents, then the federal government only has the power to give marriage benefits to gay couples in some states but not others? It seems nonsensical to talk about them like they are federal benefits, then.
posted by muddgirl at 1:10 PM on May 31, 2012 [1 favorite]


It denies state sovereignty as conservatives define it. It denies state sovereignty as conservatives define it.


It doesn't... exactly. I mean, DOMA says "you're married so far as NY or Mass id concerned, sure. But just not for Federal purposes" It replaces "You are married for Federal purposes if you are married for your state" with "You are married for Federal purposes if you are married for your state, except for the ghey!!"

So, it doesn't quite take away the state's right. And that's the hook that Roberts will hang his despicable hat on when they overturn this 5-4.
posted by tyllwin at 1:12 PM on May 31, 2012


Whether or not an individual state can marry another is a question of state law

Actually, if one state wants to marry another it requires the consent of both state legislatures as well as Congress. Article IV Section 3.
posted by jedicus at 1:15 PM on May 31, 2012 [8 favorites]


But what if they're same-sex states?
posted by Marisa Stole the Precious Thing at 1:29 PM on May 31, 2012 [1 favorite]


TurboTax: State Tax Filing for Same-Sex Couples [Tax Year 2011].
posted by ericb at 1:31 PM on May 31, 2012 [2 favorites]


NOM Blogger To Married Gays: If You Think Your Marriages Are Permanent, You're Wrong.
posted by ericb at 1:44 PM on May 31, 2012


Because DOJ stopped defending Section 3 of DOMA in February 2011, the House Bipartisan Legal Advisory Group -- controlled 3-2 by Republicans -- voted to defend the law.

I've never heard of Congress taking it on itself to defend a law. Does anyone know how they are funding the defense?
posted by banal evil at 1:45 PM on May 31, 2012


This is an awful lot of paperwork and circular arguing over a law that, to any grown adult with half a heart, is quite plainly a load of bigoted bullshit that will be the shame of a generation when people look back on our age. I guess this is how the sausage is made and all of that but it's pretty disgraceful that even now we still have to go all the way to the Supreme Court to decide how much institutional bigotry the nation ought to have.
posted by EatTheWeak at 1:48 PM on May 31, 2012 [3 favorites]


My crotchety old Trusts and Estates professor - think Carl from Up - once remarked in passing that DOMA was facially unconstitutional. Not in a "this is my opinion for what it's worth" kind of way, but in a "water is wet" kind of way. Dude wasn't exactly über left-wing, nor was he prone to making snap and/or political judgments.

DOMA is, indeed, doomed. Good riddance to bad rubbish.
posted by Sticherbeast at 1:56 PM on May 31, 2012 [2 favorites]


I've never heard of Congress taking it on itself to defend a law. Does anyone know how they are funding the defense?

That has been a contentious issue in the House and elsewhere.

John Boehner Has Collected $742,000 For DOMA Defense, Top House Official Says
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.
posted by ericb at 1:59 PM on May 31, 2012 [4 favorites]


In Churches Across The Country, Far-Right Pastors Preach Anti-Gay Hate And Violence
posted by homunculus at 2:01 PM on May 31, 2012 [1 favorite]


Who Would Jesus Murder?
posted by It's Raining Florence Henderson at 2:03 PM on May 31, 2012 [1 favorite]


So if we look at marriage just as a right granted by the state to its current residents, then the federal government only has the power to give marriage benefits to gay couples in some states but not others? It seems nonsensical to talk about them like they are federal benefits, then.

"Project 1138 is designed to increase public awareness of the 1,138 federal marital benefits and protections denied to same-sex couples as the result of marriage inequality."

And here's a small subset of the 1,138 benefits, rights and protections provided on the basis of marital status in Federal law.
"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.
posted by ericb at 2:05 PM on May 31, 2012 [2 favorites]


DOMA is, indeed, doomed. Good riddance to bad rubbish.

Doomed, yes. This year or next, a very good likelihood not. Maybe in another 10 or 20 years, if the current crop of SCOTUS isn't replaced by an even more retrograde crop.
posted by blucevalo at 2:07 PM on May 31, 2012 [1 favorite]


Yeah, I know there are rights granted to married people on the federal level. But if the federal government has to administer those rights not just based on your marital status, but on your state of residency, doesn't that really mean that they're rights that the state can take away through a state constitutional amendment? Frightening.

(Note, I'm am so ridiculously anti-DOMA it's not even funny. I'm just frightened that a narrow DOMA ruling will cause some pretty frightening scenarios. Still better than DOMA.)
posted by muddgirl at 2:12 PM on May 31, 2012


Ironmouth, can you point me at a document that explains how marriage and "police power" are related? I have heard this a number of times (in metafilter threads, possibly from you) and I have read in the Loving v. Virginia decision that
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),
but I am obviously missing some background to understanding this.


The "police power" is the name for the complete power that states have. It is far more comprehensive than the powers of the federal government. As long as they don't violate the Bill of Rights, a state can do almost anything it likes in terms of regulating its citizens. The word "police" does not refer to policing as we know it, but the general power of the government to regulate anything. Only the states possess that.

the former is far, far more important

I think I see your point. But surely evidence that a law was conceived for the purpose of being discriminatory ought to be at issue in examining its constitutionality?


That's actually a formulation of the case law. If it is, then it helps. But it is far more important to have the heightened scrutiny relating to issues of sexual orientation.
posted by Ironmouth at 2:12 PM on May 31, 2012 [1 favorite]


I've never heard of Congress taking it on itself to defend a law

It's awfully juvenile, I know, but I love the fact that the group doing the defending is called BLAG.
posted by Mars Saxman at 2:16 PM on May 31, 2012


Wow, so basically congress can fund it's own little hate laws when it feels like it? WTF?
posted by Artw at 2:17 PM on May 31, 2012


Doomed, yes. This year or next, a very good likelihood not. Maybe in another 10 or 20 years, if the current crop of SCOTUS isn't replaced by an even more retrograde crop.

Yep. 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.

That said, I don't think DOMA would necessarily survive even with the current Court's makeup. Kennedy might be difficult to persuade of DOMA's constitutionality.
posted by Sticherbeast at 2:17 PM on May 31, 2012 [2 favorites]


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.

Stephen Breyer is 73. Anthony Kennedy is 75. Antonin Scalia is 76. Ruth Bader Ginsburg is 79.
posted by kirkaracha at 2:23 PM on May 31, 2012 [6 favorites]


the federal government may not issue marriage licenses

...except in federal territories.
posted by ROU_Xenophobe at 3:00 PM on May 31, 2012


Antonin Scalia is 76.

Yeah, but that shriveled old bastard is going to live forfuckingever.
posted by elizardbits at 5:00 PM on May 31, 2012 [4 favorites]


NOM’s Brian Brown To Dine And Debate With Dan Savage

I've never heard of Brown, but this is going to be incredible to watch, I think. I doubt that it would convince anyone in either camp of anything, but Brown will look like an ignorant, irrational bigot, and I always enjoy when people like that are shown to be what they are.
posted by His thoughts were red thoughts at 5:52 PM on May 31, 2012 [1 favorite]


I think DOMA is doomed largely because 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. The corporations that pay the GOP's bills either don't care about gay marriage or actively support it, for the most part.
posted by empath at 7:45 PM on May 31, 2012 [2 favorites]


Thanks, Ironmouth. I would never in a million years as a lay person have guessed this meaning of "police power".
posted by jepler at 7:52 PM on May 31, 2012


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

In 2002-3 the Republicans controlled both houses of Congress, President Bush had high approval ratings, and had a partisan Supreme Court. If they were going to ban abortion they would've done it already.
posted by kirkaracha at 8:00 PM on May 31, 2012


Ironmouth: "Frankly, I have no understanding how the full faith and credit clause does not decide this matter immediately for a person married in one state having that marriage recognized in another."

YES, that. Can someone please explain to me how that can possibly work? Alabama cannot just decide not to honor my driver's license, and throw me in jail for operating w/o a license. Adultery laws (if any are still on the books and valid) cannot be applied to two married opposite-sex people, married in another state. How the fuck can states get away with ignoring licensing in this case? Why isn't a MA marriage license binding in all 50?

Serious question, if anyone knows the answer. I wouldn't be surprised if it were almost as convoluted as the "Ham saw his dad naked, so you darkies are slaves now" kind of argument. But what is the argument?
posted by IAmBroom at 8:26 PM on May 31, 2012


It's not convoluted at all. Section 2 of DOMA explicitly excuses states from having to recognize same-sex marriages performed in other states. (Whether or not that provision is constitutional is a separate question.)
posted by Lazlo at 8:37 PM on May 31, 2012


It's not convoluted at all. Section 2 of DOMA explicitly excuses states from having to recognize same-sex marriages performed in other states. (Whether or not that provision is constitutional is a separate question.)

But that is the question, since the issue is "Why doesn't the Full Faith and Credit Clause apply?" and the Full Faith and Credit Clause is found in the constitution. I didn't take that question to mean how does DOMA purport to allow states to do it, but how can it possibly be constitutional.
posted by MoonOrb at 8:42 PM on May 31, 2012 [2 favorites]


Exactly. "It's illegal because this law says so" simply isn't a strong enough argument to overturn the Constitution.
posted by IAmBroom at 8:47 PM on May 31, 2012


muddgirl: How would federal marriage recognition work, post-Section-3-repeal? Let's say I get married to another woman in Massachusettes, and receive the federal marriage benefits that I'm entitled to. Then, I move to Texas where my marriage is not recognized. Would I still receive federal benefits? Would I file single on state taxes and married on federal taxes? Or is my marriage license, essentially, revoked? Or would that be something that would have to be interpreted by the courts?

The answer is, "it's complicated, but it would probably have to be resolved by the courts." Some administrative agencies and some courts have crafted their own rules, but they aren't consistent and they aren't always well thought out. Sometimes they use the place where the marriage was celebrated, sometimes they use the place where you live now, sometimes a combination or another alternative.

Congress could fix this, by repealing DOMA and instead saying which state's law applies. But if that doesn't happen, courts will have to resolve this. I've written an article that goes into this in 50-some pages of detail.
posted by willbaude at 11:14 PM on May 31, 2012 [2 favorites]


As for the Full Faith and Credit Clause, it is widely thought not to apply here for several reasons. One, states have traditionally been allowed to decline to enforce a neighboring state's laws when it is against their "public policy."

Two, the Constitution says that "Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." That is generally thought to support Section 2 of DOMA, because Section 2 of DOMA is a regulation of the "effect" that other states have to give to out-of-state marriages.

There are definitely people who challenge these arguments, and say that the Full Faith and Credit Clause invalidates DOMA, but it isn't the mainstream view, and (in my judgment) the Full Faith and Credit argument is unlikely to prevail in the courts. Even if the Full Faith and Credit Clause doesn't apply, however, one could also make an equality-based challenge to Section 2 of DOMA. That challenge probably would fail under the First Circuit's theory, but it might succeed under some other theories.
posted by willbaude at 11:20 PM on May 31, 2012 [2 favorites]


Alabama cannot just decide not to honor my driver's license

I expect you'll find that they can, if you having a license would be contrary to (a valid and constitutional) Alabama law. For example, if you were too young.

Googling, New York actually does this -- if you're under 16, you can't drive in New York, even if you have a driver's license from another state (there are a few that grant actual licenses to people under 16).
posted by ROU_Xenophobe at 11:23 PM on May 31, 2012 [2 favorites]


A key part of social progress is that laws don't end with 'stamped it, doubled act it, no erasies'
posted by srboisvert at 12:09 AM on June 1, 2012


In related news ...

Ninth Circuit Announces Filing Tomorrow in Prop 8 Case Likely to Be Decision on 'En Banc' Rehearing
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.
posted by ericb at 5:29 PM on June 4, 2012


No rehearing. Boom.
posted by klangklangston at 10:17 AM on June 5, 2012


Here's the 9th Circuit's order denying the rehearing (pdf), including some petty verbal sparring in a dissent and concurrence.
posted by MoonOrb at 10:30 AM on June 5, 2012


The dissent reads like "I've been silenced all my life!"
posted by rtha at 10:37 AM on June 5, 2012


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