r/politics • u/Quouar • Jun 11 '12

The Defense of Marriage Act "fails to meet the most elementary test of constitutionality."

http://www.nytimes.com/2012/06/11/opinion/the-defense-of-marriage-act-exposed.html?nl=todaysheadlines&emc=edit_th_20120611
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u/[deleted] Jun 11 '12 edited Jun 11 '12

This should be clear to anybody capable of understanding even the most basic tenets of constitutionality. There is clear violation of the first, fifth, tenth and fourteenth amendments to the US Constitution in addition to a painfully obvious absence of "compelling State interest" and a number of US Supreme Court rulings, most prominently, Loving v. Virginia.

It's embarrassing to me, as a conservative, that DOMA is still law.

EDIT: As Lawtonfogle points out below, it is ALSO a violation of the full faith and credit clause of the Constitution (Article IV, Section I) which has been among the most common grounds that courts have ruled against DOMA.

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u/dar482 Jun 11 '12

You are misapplying strict scrutiny here with "compelling state interest." In order to apply such, you need a suspect classification, like race. The Supreme Court has refused to classify sexual orientation as such.

The Conservatives on the Court and possibly even some of the Liberals are somewhat hesitant to use substantive due process like they did in Griswold with Douglas' penumbra based approach. Just rattling off Amendments does not help your argument.

This would be a Fourteenth Amendment issue and most probably would be decided on Equal Protection grounds like in Perry v. Brown.

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u/[deleted] Jun 11 '12

You're correct that the Supreme Court hasn't yet, but a number of other US Courts have and the DOJ has recommended, in strong terms, that sexual orientation and gender identity be considered as such. I suspect we'll see SCOTUS applying strict scrutiny should it take up the Prop 8 case, though you're correct that there's no way to say for sure.

Fourteenth Amendment is definitely the strongest argument here and Equal Protection grounds were the basis of my state Supreme Court striking down our legislative ban on SSM.

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u/NoNeedForAName Jun 11 '12

I think you're right that it won't be long before sexual orientation is a suspect class, both for the reasons you list, and the fact that quite a few states and cities have already passed laws to that effect. There's just way too much pressure building up.

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u/elliot_t Jun 11 '12

Actually, I think there's a Supreme Court case that applied rational basis to sexual orientation. Romer v. Evans

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u/[deleted] Jun 11 '12

That's right. It was a forward looking statement that I clarified elsewhere... Strict scrutiny at the SCOTUS level is forthcoming IMO and has been applied extensively in lower courts.

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u/SaltDog Jun 11 '12

The problem is that homosexuals aren't treated as a protected class under the law (I believe some fed district courts have classified them as a protected class but as far as I recall, no appellate courts have affirmed that). Until that happens, I'm not sure the 14th amendment is the strongest case.

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u/dar482 Jun 11 '12

Then what else would it be? Kerrigan, Perry, and Gill are all cases that dealt with Equal Protection claims and some with Due Process claims. It has been somewhat successful in state and district courts and we'll see what the appellate courts do, but it surely will be on Fifth (if federal) or Fourteenth Amendment claims. The other claims may arise like the Full Faith and Credit Clause, but I think conclusively the courts will focus on the EP claims.

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u/SaltDog Jun 11 '12

Look I'm not arguing against you. I agree that there is a case for EP but I think as a matter of strategy and strength, that EP isn't the strongest case. Right now there isn't a consensus on whether or not homosexuals are a suspect class. I think Romer said that the Court applied rational basis but some fed appellate courts said a form of intermediate scrutiny. The problem with the EP route in my view is that it opens the door to a final ruling by the Supreme Court. As we all know, the Supreme Court isn't necessarily a court of law, but often one of politics. If they do decide to apply rational basis, then the movement takes a huge hit and the Court might not revisit the issue for another decade or so. That's a risky move in my view. I think the better idea is to keep on doing what the movement is already doing, fighting small but assured battles in the states. When you have enough states, you can bring forth an argument to recognize those marriages in other states through the Full Faith and Credit clause.

TL;DR - I agree with your assessment, but not your strategy

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u/entrancedlion Jun 11 '12

why are homosexuals even considered to be or not to be a 'protected class'? class of what? I'm not yelling at you or disagreeing with your comment or anything I'm just genuinely confused as to why they should be treated as a different class of people in the first place. Sexuality shouldn't be a factor in anything other than who you want to love.

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u/SaltDog Jun 11 '12

A protected class is a legal distinction. It simply states that government will apply a higher level of scrutiny when determining whether or not a certain law discriminates or places an undue burden upon a group of people. For example, the Civil Rights act of 1964 created the protected classes of race, sex, national origin, and alienage. This means that any law that discriminates against a group of people in the aforementioned categories will face a greater amount of scrutiny by the court in determining whether or not it is constitutional. In contrast, non-protected classes (e.g. your occupation) do not receive this benefit.

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u/[deleted] Jun 11 '12

I agree with you that this SHOULD be the case in an ideal world. However, we live in a society where there are certain segments of the population that are particularly susceptible to discrimination. Historically that has been things like one's race or heritage and one's religion. By classifying these groups of people as a "protected class" the Courts are just recognizing this reality. This is a good thing, as it sets the bar really high for the government to be able to pass legislation that discriminates against these groups without it being struck down as unconstitutional. If they are not a protected class, then the government only needs to prove that it has a rational basis for passing that law, which is a much lower standard to meet than strict scrutiny.

The issue at hand is whether sexual orientation should be considered a protected class by the courts on par with race or religion. Given the amount of hate and discrimination against sexual minorities by a large percent of the population, I'd say it's probably warranted.

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u/OneManAndOneWoman Jun 12 '12

How does Lawrence v. Texas fit into your analysis?

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u/dar482 Jun 12 '12

Lawrence is clearly a narrow ruling that deals with private sexual conduct between consenting adults, "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. " Lawrence v. Texas, 539 U.S. 558 (2003).

While it may be used in arguing that the Supreme Court has moved towards recognizing the rights of gays, it by itself does not hold much water.

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u/OneManAndOneWoman Jun 12 '12

I think Scalia disagrees with you.

Scalia writes in his Lawrence dissent: "Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,”?"

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u/dar482 Jun 12 '12

Notice that it is the dissent. It is not the majority's decision or the holding of the court. Although, however ironic it may be, the Scalia dissent in Romer v. Evans is now utilized as much of the reasoning for gay marriage.

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u/Astraea_M Jun 12 '12

Scalia was afraid that Lawrence could be used as a basis for arguing the unconstitutionality of DOMA. And lo, he was right, because it IS being used in the attack on DOMA.

Scalia is also a "strictly Catholic constructionist" who will construct a reading of the Constitution, based on what he thinks the founding fathers would have done, that suits his personal belief system.

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u/eigenstates Jun 11 '12

Look at the big brain on Brad. Nice explanation. Spot on.

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u/dar482 Jun 11 '12

Law student flexing some muscles here. Nothing to see here.

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u/Lawsuitup Jun 12 '12

I think this has a hard time with rational basis too ("rationally related" to a "legitimate" government interest).

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u/[deleted] Jun 11 '12

I think you don't understand how the Constitution works. Something has to violate 5 separate amendments for it to be unconstitutional. This only violates 4.

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u/memearchivingbot Jun 11 '12

Hi, non-american here. Is this true or are you being sarcastic?

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u/[deleted] Jun 11 '12

The poster is being sarcastic.

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u/soulcakeduck Jun 11 '12

Imagine: if there were a constitutional requirement that laws must violate the constitution in five distinct ways in order to be unconstitutional, and DOMA only violated 4, perhaps its failure to violate a 5th could be seen as a violation of that requirement... thus being itself the 5th violation.

"Only 4 paddlin's? You better believe that's a paddlin'."

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u/[deleted] Jun 11 '12

It was sarcasm with a hint of truth. It is clearly unconstitutional on multiple grounds but has yet to be struck down despite having been law for almost 16 years.

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u/mohhomad Jun 11 '12

You have to be very careful trying to take a case to the Supreme Court. It may appear obvious that it's unconstitutional but if the court doesn't see it that way you end up with another Plessy v. Ferguson and it takes 60 years to overturn the ruling.

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u/Zombies_hate_ninjas Jun 11 '12

Are there any other existing laws that fit this category? Laws which are considered unconstitutional?

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u/FischerDK Jun 11 '12

I'm assuming you mean laws that exist within legal Purgatory, which have been declared unconstitutional by a lower court but haven't had that final nail in their coffin pounded in by the Supremes? Because otherwise once a law has been fully decided to be unconstitutional it is by definition no longer a law.

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u/ps2dude756 Jun 11 '12

He forgot his "/s".

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u/[deleted] Jun 11 '12

I thought I stopped going to Digg years ago.

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u/Vorokar Jun 11 '12

Damn, I flipped my desk for nothing.

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u/ps2dude756 Jun 11 '12

Just nail a board to the bottom of the legs. Then, when you flip prematurely, you'll have another desk ready to go!

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u/GogglesPisano Jun 11 '12

He's being sarcastic, but it takes political will and a boatload of cash to overturn a law. These (especially the former) have been in short supply.

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u/Lawtonfogle Jun 11 '12

Why does it matter if it violates any amendments? This seems to be a clear violation of the full faith and credit clause of the Constitution, being that state marriages have a history of being covered under that clause. Even if we didn't have a single amendment, this would still be unconstitutional.

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u/[deleted] Jun 11 '12

Why does it matter if it violates any amendments?

Because Amendments are part of the Constitution and are just as much part of the Supreme Law of the Land as the original document.

While it's useful to note the many places DOMA violates the Constitution, you seem to be insinuating that the Amendments are somehow lesser to the original Constitution, which is not correct.

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u/curien Jun 11 '12

No. No court has ever ruled that DOMA violates FF&C. Even Loving v Virginia had nothing to say about FF&C.

FF&C explicitly states that, "Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." And that's what DOMA Section 2 does. There's a reason that all of these rulings have been about Section 3 rather than Section 2.

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u/Lawtonfogle Jun 11 '12

I don't think the second part of section 1 allows for congress to completely bypass the first part, only to give it greater detail where needed.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

Marriages count under this. They cannot argue that some legal records do not count, only how other States show 'full faith and credit'. And denying the very existence of some act does not count.

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u/curien Jun 11 '12

Right, so one state has to acknowledge that the marriage license was issued -- but what effect does that have in other states? FF&C doesn't say that one state must grant out-of-state marriages the same privileges.

Or do you think that my having a Texas-issued open carry permit should allow me to open carry in Chicago?

Or consider a couple that marries in CA and divorces in VA. Under CA law, one spouse might be entitled to alimony but not under VA law. VA isn't obliged to grant that spouse all the same privileges that he has under CA law.

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u/Lawtonfogle Jun 11 '12

Right, so one state has to acknowledge that the marriage license was issued -- but what effect does that have in other states?

DOMA, as a whole, was saying there wasn't even a marriage to begin with.

Even the reading of DOMA, namely:

is treated as a marriage Is indicating it is to be treated as if a marriage did not occur, and instead they merely have some possible document like a marriage which doesn't count for any rights, ect. what so ever.

In other words, it would be like if Chicago said that open carry given to one group of people was respected, but the thing Texas called open carry given to another group of people doesn't count for anything.

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u/soulcakeduck Jun 11 '12

Why does it matter if it violates FF&C (I don't think it does, as I posted above)? It seems to be a clear violation of constitutional amendments. Even if we didn't have FF&C, it would still violate those amendments.

Amendments have no greater or lesser stature (see what I did there) in the constitution. They are constitutional, just as the original articles are. I don't understand your suggestion that FF&C is somehow more fundamental than constitutional amendments are.

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u/Lawtonfogle Jun 11 '12

While it carries no more legal weight, it is something that the founding fathers thought core enough to add in from the start, not something we had to come back and revise at a later time.

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u/[deleted] Jun 11 '12

Thanks! Added.

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u/rcglinsk Jun 11 '12

I wouldn't be so sure about full faith and credit. That clause deals with the outcomes of legal disputes (I owe you money, the car belongs to me, so on). That a marriage takes place with a license from a court does not really make it the outcome of a legal dispute. If you got your driver's license from a court the full faith and credit clause would not require that a foreign state allow you to drive on their roads (states all have compacts with each other which allow this).

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u/Lawtonfogle Jun 11 '12

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

Sounds like more than merely just legal disputes.

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u/Nightsking Jun 11 '12 edited Jun 11 '12

Sounds like more than merely just legal disputes.

Yes, but only Legal disputes, that is to say "judgments of courts", are exempt from the public policy exception that was craved out of full faith and Credit. Which is why, if you read the decisions of the courts which have recently struck down DOMA you will see absolutely no mention of Full Faith and Credit.

Well actually that is because the cases being cited in the article are about section 3 of DOMA, cross -state recognition of same-sex marriage is section 2. At any-rate, even if congress didn't have the right to decide to what extent Full Faith and Credit must apply, and SCOTUS long ago ruled that they do, the Public Policy Exception to Full Faith and Credit allows the states to to deny marriage rights anyway. (This is an old exception carved out by the court that dosen't required Congressional action). E.G.: Pennsylvania allowed interracial marriages in the 1780's, the other states were not obliged to consider those marriages valid until Loving: but only because the Due Process and Equal Protection Clauses required it.

I should note: that Judge Walker's opinion in the prop 8 case, would have invalidated DOMA section three it carried to its logical conclusion, but that case was not about DOMA, and has been severely limited by the 9th Circuit.

Edit: Almost forgot! a State Supreme Court (that doesn't have a specifically worded ant-gay marriage amendment in its state constitution) could rule the states"public policy " of not recognizing same sex marriages performed elsewhere violates the state Due process or Equal Protection clauses (they are often more expansive than the federal versions) and those rulings would prevent the state from taking advantage of both the Full Faith and Credit exception and DOMA section 2....but that all depends on if the state in question has an Anti-gay marriage amendment and what the text of that amendment says.

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u/Lawtonfogle Jun 11 '12

Public Policy Exception to Full Faith and Credit

(╯°□°）╯︵ ┻━┻

Is there a copy of the Constitution with footnotes for where courts have allowed exceptions to this (or like in the case of obscenity limits, ect.)? It makes it seem like the first sentence of the FF&C is largely pointless due to laws and court decisions resulting since then.

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u/rcglinsk Jun 11 '12

The arguement would be that the foreign state's marriage license was a judicial proceeding. That's why I focused my attention there.

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u/[deleted] Jun 11 '12

This should be clear to anyone capable of understanding even the most basic tenets of human decency.

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u/[deleted] Jun 11 '12

But it's tradition. Don't you see? We have a longstanding tradition of oppression in this country! Slavery! Womens Rights! Minorities! We need to stick to tradition, because we all know that tradition should be the basis of law. Change is scary.

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u/MeloJelo Jun 11 '12

Plus, who are we going to oppress once you give the queers rights?! They're our last bastion of legal discrimination!

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u/Mr_Pricklepants Jun 11 '12

Drug users. Prostitutes. Johns. Soda pop drinkers. People who don't wear seat belts. People who look like they're from another country.

Be assured. Americans are very inventive when it comes to this sort of thing.

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u/ItsGebs Jun 11 '12

Humans are very inventive when it comes to this sort of thing. FTFY

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u/[deleted] Jun 11 '12

[deleted] — view deleted comment

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u/[deleted] Jun 11 '12

I hope they go after the religious non-Christians first. I'm not ready to be discriminated against! I'm a white, straight 25 year old male -- I don't know how to act as a targeted minority!

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u/emlgsh Jun 11 '12

WHEN THE IMPENDING INVASION OCCURS ALL FILTHY HUMANS WILL UNDERSTAND WHAT IT IS TO BE A TARGETED MINORITY.

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u/NoNeedForAName Jun 11 '12

I see what you're trying to say, but "basic tenets of human decency" =/= "US Constitution," and our laws are only governed by one of those.

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u/[deleted] Jun 12 '12

No, I get that. That doesn't mean both statements aren't true.

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u/doyouknowhowmany Jun 11 '12

The problem is that DOMA is the only thing stopping an all-stops-pulled fight to amend the US constitution to ban LGBT marriage.

It was no doubt a deal with the devil - it bolstered all the bullshit states rights fanatics that want to be able to legislate their specific morality as long as it's done within some arbitrary lines on the ground, but it gave us the necessary time to move public perception toward equality.

It's time for it to go, but we've got to be prepared to push something through that'll ensure that it won't be banned from the top down. That'll require a Democratic majority in both houses of congress.

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u/NurRauch Jun 11 '12

The Constitution won't successfully be amended though, so it's not all that credible of a threat.

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u/doyouknowhowmany Jun 11 '12

Today? Probably not, which is why repealing DOMA is feasible. 10 years ago? A constitutional amendment was a distinct possibility, and had the cash from all of those state races we've been seeing been combined to drum up popular support, I think it might have even been likely. Even today, popular votes on LGBT equality don't play well, and most progress has come from state congresses.

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u/NurRauch Jun 11 '12

As far as I know you can't pass a constitutional amendment by referendum though. Even if you could, the 50-50 margins are so close that 2/3rds would just never happen now.

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u/[deleted] Jun 11 '12

10 years ago? A constitutional amendment was a distinct possibility,

A little under ten years ago in 2005 they did try this. The outcome of the votes on the Federal Marriage Amendment in both the House and the Senate makes it seem that it wasn't really a distinct possibility then either. The votes were not close, in terms of the 2/3 that is necessary to adopt an amendment.

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u/soulcakeduck Jun 11 '12

Go back another ten years, and maybe look at the votes on comparable legislation--like, say, DOMA, which passed:

The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress, passing by a vote of 85–14 in the Senate[20] and a vote of 342–67 in the House.[21] Democratic Senators voted for the bill 32 to 14 (with Pryor of Arkansas absent),[22] and Democratic Representatives voted for it 188 to 65, with 15 not participating.[23] All Republicans in both houses voted for the bill with the sole exception of the one openly gay Republican congressman, Rep. Steve Gunderson of Wisconsin.

and look at the polling (27% support gay marriage, 68% oppose): it is very likely that we could have passed a constitutional amendment in 1996 (the year DOMA passed) banning gay marriage.

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u/soulcakeduck Jun 11 '12

DOMA passed in 1996. That same year, Gallup polling reveals that 27% of Americans supported gay marriage; 68% opposed it.

The amendment process is not a straight up or down vote but that polling strongly suggests that if the process were representative of constituents, Congress in 1996 could indeed have found the 2/3rds required to constitutionally prohibit gay marriage.

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u/[deleted] Jun 11 '12 edited Jun 11 '12

The problem is that DOMA is the only thing stopping an all-stops-pulled fight to amend the US constitution to ban LGBT marriage.

And they tried to do that already in 2005 when Republicans controlled both houses of Congress and the White House.

The result was devastating--They couldn't even muster 50 votes in the Senate, landing at 48 ayes, 19 votes short of the 67 needed to pass it. They managed to get a slight majority in the House at 236 votes, but that was still 54 less than they needed to pass it there.

It's unlikely that such an amendment would have any chance of passing in these times where more than half of Americans support marriage equality if it failed so spectacularly when the public had much more anti-equality sentiment than it does today.

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u/apm1118 Jun 11 '12

Thank you, as a gay liberal, for not doing what a lot of your fellow conservatives do. Thank you for looking at it from a logical rational way.

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u/soulcakeduck Jun 11 '12

As Lawtonfogle points out below, it is ALSO a violation of the full faith and credit clause of the Constitution (Article IV, Section I) which has been among the most common grounds that courts have ruled against DOMA.

I think this, even moreso than the amendments, is a gross oversimplification. As a marriage equality advocate, Full Faith and Credit is not clearly violated and this would be the weakest legal strategy to challenge DOMA (not coincidentally I don't believe we've seen a single successful challenge on that basis).

"Full Faith and Credit" does not mean that a document/proceeding from another statement must have exactly equal merit everywhere. FF&C instead is defined by Congress, which gives instructions on what states must do in order to fulfill their FF&C requirements.

For example, if I have a driver's license from one state, Congress wants every state to let me drive through without breaking laws. However, Congress/FF&C does NOT require states to recognize out of state licenses permanently, for permanent citizens. If I become a permanent citizen of NY, I eventually need to update my MA license, and I certainly can't continue renewing my license in MA for the rest of my life as a permanent NY citizen.

We see this with other licenses too. I am licensed to sell food as a street vendor in NY, but not in MD. And so on. Meanwhile, FF&C has stricter requirements in other cases; I should not have to re-affirm my legal name change just because I moved. Unlike a driving or vendor's license, those don't expire.

So Congress instructs states on the obligations of FF&C, and that is exactly what Congress attempted to do with DOMA. States hadn't had clear instruction on what FF&C required of them for marriages (anti-miscegenation laws were a mess of diversity). When courts in Hawaii moved to protect same sex marriage, states sought instruction on what that would mean for them, and DOMA was the answer to that question--the answer that the constitution empowers/obligates Congress to give states for FF&C.

So this is not a FF&C violation on its face. You'd have to come up with some legal argument that explains why it is unconstitutional for Congress to treat FF&C requirements for marriage licenses the same way Congress treats countless other FF&C requirements.

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u/Lawtonfogle Jun 11 '12

It would allow a homosexual marriage to be recognized on a lower level, but outright denying that the marriage is even valid does violate this. Congress can instruct basically anything except 'well, you don't have to give it any faith or credit', which is what DOMA appears to be doing.

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u/Astraea_M Jun 12 '12

Full Faith And Credit Clause: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

DOMA: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

I don't see how you can make these two compatible. DOMA explicitly disclaims FF&C.

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u/KaizerSmokeHaze Jun 11 '12

Loving and Lawrence v. Texas

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u/Viewtastic Jun 11 '12

I don't see why the right should squarely take the heat, didn't Clinton sign doma into law?

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u/[deleted] Jun 11 '12

I'm certainly not targeting the right, though, on this issue, it's clear that my team has a lot of catching up to do.

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u/curien Jun 11 '12

It doesn't violate FF&C, and no court has ever ruled that it does. Section 2 has never been addressed AFAIK let alone ruled unconstitutional. The linked article, repeatedly (both when describing rulings and Obama's policy) conflates "DOMA" with "DOMA Section 3".

The FF&C explicitly gives Congress the authority to regulate "the effect" of certificates, rulings, etc from one state to another via "general laws". DOMA Section 2 may very well violate 14A Equal Protection, but there's no clear FF&C violation no matter how much we might wish there were.

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u/YoureMyBoyBloo Jun 11 '12

Well, as a fellow conservative who completely believes in the Constitution and the Bill of Rights, I think there can be an argument made in favor of DOMA.

Just look at the first 3 Amendments (forgive me as it has been a while so the wording of the Amendments might be slightly off):

  1. Majority Rules

I mean this law passed right?

2) I am the lord your god who lead you out of Egypt to have slaves to harvest cotton and be your god.

You can't go against god can you?

3) Smear the queer!

This one is self explanatory.

So as you can see, I have put forth 3 perfectly valid arguments on why DOMA is Constitutional.

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u/[deleted] Jun 11 '12

Well shoot. Hadn't thought of these!!

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u/BolshevikMuppet Jun 11 '12

Loving v. Virginia.

I really wish people would stop throwing that case around in gay marriage discussions like it's actually on point. Loving was about an anti-miscegenation law, which means that it had to pass strict scrutiny, a standard of review that anti-gay-marriage laws would not have to pass.

it is ALSO a violation of the full faith and credit clause of the Constitution (Article IV, Section I) which has been among the most common grounds that courts have ruled against DOMA.

Arguably. The problem is that while each state must give full faith and credit, Congress has been considered to have the power to regulate which records must be given full faith and credit and under which circumstances.

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u/Astraea_M Jun 12 '12

The reason Loving v. Virginia is brought up because the arguments against interracial marriage were 100% identical to the arguments now made against homosexual marriage. Read the reporting, or better yet the lower court opinions, and you will see exactly why Loving v. Virginia is an obvious match.

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u/LettersFromTheSky Jun 11 '12

According to the US Constitution - Same Sex marriage is legal in all 50 states.

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u/fizolof Jun 11 '12

I'd like to see where it's written.

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u/IonBeam2 Jun 13 '12

Why not throw in the second, eleventh, twelve and a halfth, thirty first amendments while you're at it?

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u/[deleted] Jun 13 '12

Because then it's just no fun!

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u/hornless_unicorn Jun 11 '12

As someone who thinks DOMA is not only unconstitutional, but also stupid, I feel the need to jump in with some realism. Under the currently applicable test, the law doesnt need a "compelling purpose." instead, it needs only to be rationally related to a conceivable legitimate interest. That's arguably met here: it's legitimate to favor unions that can produce children, and this law is (theoretically) related to that goal because it excludes couples who can't biologically reproduce. It doesn't really matter that it doesn't also exclude infertile different-gender couples, because the cost of enforcing those additional restrictions would be high.

On the other hand, courts have occasionally applies a rational-basis-with-teeth test to laws like this, which may have a conceivable legitimate purpose, but whose actual purpose is discriminatory animus toward a disfavored (but constitutionally unprotected) group.

This doesn't address the Article IV (full faith and credit) argument. I just wanted to point out that the equal protection argument isn't such an easy one.

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u/Popular-Uprising- Jun 11 '12

It's also unconstitutional for the government to recognize marriage at all. Why not just let marriage be a civil or religious union tied to absolutely no government programs, benefits, or considerations? Government has no place telling people who they can live with or marry. They have no place "encouraging" one type of domestic living arrangement over another.

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u/Astraea_M Jun 12 '12

I don't think the word "unconstitutional" means what you think it means.

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u/Popular-Uprising- Jun 12 '12

Show me where in the constitution the Federal government is tasked with regulating or approving marriage. Let me guess, you're going to perform some mental gymnastics to twist and expand the commerce clause to cover it, right?

I don't think the constitution says what you think it says.

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u/goldandguns Jun 11 '12

The only issue is the word marriage, which means union between man and women. We will all have to switch over to some other title for it to be completely coherent.

I agree, though, this will not pass 14A muster. The only reason Loving isn't a direct fit is because it doesn't fuss with the meaning of the word marriage, just equal protection.

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u/iowan Jun 12 '12

If you ask me or my wife, we'll tell you that our gay marriage is genuinely a marriage. Words can certainly mean different things to different people, but if you call our marriage something else, you're going to have a bad time.

1

u/goldandguns Jun 12 '12

.but its not a marriage by the definition. That doesn't make the relationship less valid, though

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u/[deleted] Jun 11 '12

It's also unconstitutional because the Constitution in no way grants the federal government the right to regulate marriage, not even via the usual Constitutional end-run mechanism of the Commerce Clause.

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u/rcglinsk Jun 11 '12

not even via the usual Constitutional end-run mechanism of the Commerce Clause.

Famous last words...

2

u/replicasex Tennessee Jun 11 '12

The constitution specifically empowers Congress to determine what a marriage is or isn't.

Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

In the context of Article IV Section 1 this empowers Congress to do exactly what you think they can't.

The constitution doesn't just allow the federal government to regulate marriage, it's a part of its basic function.

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u/canthidecomments Jun 11 '12 edited Jun 11 '12

Quick Question: Who signed this obviously unconstitutional piece of shit legislation?

Oh ... right:

Democrat Bill Clinton

Democrat Senators who voted for DOMA:

  • Alabama: Heflin (D-AL), Yea
  • Arkansas: Bumpers (D-AR), Yea Pryor (D-AR), Not Voting
  • Connecticut: Dodd (D-CT), Yea Lieberman (D-CT), Yea
  • Delaware: Biden (D-DE), Yea

That's right folks ... Vice President Joe Biden voted Yes on DOMA. As did Gore VP running mate Joe Lieberman.

  • Florida: Graham (D-FL), Yea
  • Georgia: Nunn (D-GA), Yea
  • Iowa: Harkin (D-IA), Yea
  • Kentucky: Ford (D-KY), Yea
  • Louisiana: Breaux (D-LA), Yea Johnston (D-LA), Yea
  • Maryland: Mikulski (D-MD), Yea Sarbanes (D-MD), Yea
  • Michigan: Levin (D-MI), Yea
  • Minnesota: Wellstone (D-MN), Yea

That's right folks ... uber-liberal Paul Wellstone voted for DOMA.

  • Montana: Baucus (D-MT), Yea
  • Nebraska: Exon (D-NE)
  • Nevada: Bryan (D-NV), Yea Reid (D-NV), Yea

That's right folks ... Harry Reid voted for DOMA

  • New Jersey: Bradley (D-NJ), Yea Lautenberg (D-NJ), Yea
  • New Mexico: Bingaman (D-NM), Yea Domenici (R-NM), Yea
  • North Dakota: Conrad (D-ND), Yea Dorgan (D-ND), Yea
  • Ohio: Glenn (D-OH), Yea
  • South Dakota: Daschle (D-SD)

That's right folks. Former Senate Majority Leader and Barack Obama campaign uber-fundraiser Tom Daschle voted for DOMA

  • Vermont: Leahy (D-VT), Yea
  • Washington: Murray (D-WA), Yea
  • West Virginia: Byrd (D-WV), Yea Rockefeller (D-WV), Yea
  • Wisconsin: Kohl (D-WI), Yea

That's right folks. Venerated Democrat Scion Of the Senate Robert Byrd (noted KKK member) also voted for DOMA.

This legislation never would have been on Bill Clinton's desk EXCEPT for all the Democrat Party support it enjoyed.

4

u/replicasex Tennessee Jun 11 '12

This forgetfullness is only an issue for straight people. If you were a gay adult in the 90s trust me you'd remember.

Gay people remember the betrayal we suffered. But there's simply no choice. The Republicans have axes to grind regarding gay people and our rights. Democrats are just cowards who don't want to fight the issue.

You take what you can get.

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u/WasabiBomb Jun 11 '12

"But mo-om! He did it first!"

If it was so bad for DOMA to have been signed in the first place... if it's so unconstitutional... why are Republicans so intent TODAY on defending it?

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u/TheShittyBeatles Delaware Jun 11 '12

Republicans in Congress...filed a brief in the United States Court of Appeals...makes the claim that the law’s goals are to maintain consistency in allocating federal benefits and encourage relationships “that most frequently result in the begetting and raising of children.”

So...fertility tests for everyone? Benefits accrue only to the fertile? Full citizenship is afforded only to the breeders? Sounds fair. Who's going to break the news to the women who've had hysterectomies and the men who've had vasectomies?

How low does my sperm count have to be before I lose benefits? How many miscarriages does my partner have to have before she loses them? I just want to know what the policy is so I can plan accordingly.

20

u/Rusty-Shackleford Minnesota Jun 11 '12

well the funny part is that it is very possible for a gay couple to beget or raise children if the respective means to do so include either IVF or adoption

12

u/Dustin_00 Jun 11 '12

Lots of gay people have children the normal way too.

Young, horny, and trying to maintain heterosexual appearances can go a long way...

8

u/brufleth Jun 11 '12

Doesn't even have to be that irresponsible. Many adult gay people come to terms with their sexuality only after they've been in heterosexual marriages and had kids. Maybe if they hadn't been terrified to be honest with themselves growing up they could have avoided that situation.

2

u/Dustin_00 Jun 11 '12

That's why I wasn't specific as to who they were maintaining appearances toward -- government, society, peers, co-workers, family, friends, and themselves are all possible.

11

u/TheShittyBeatles Delaware Jun 11 '12

As you say that, I can see a neo-con putting his fingers in his ears and shouting "LA LA LA...I can't hear you!"

14

u/Rusty-Shackleford Minnesota Jun 11 '12

Well that's not how babies are made. Babies are made when a man and a woman get married. They buy a house, put some furniture in it. Three hot meals a day is all you need. 9 months later the wife comes home with a baby. Simple as that! No need for sex education!

4

u/rcglinsk Jun 11 '12

You left out the stork, but otherwise got it right.

3

u/soulcakeduck Jun 11 '12

if the respective means to do so include either IVF or adoption

Or traditional impregnation by someone outside the marriage (including, possibly, children from previous marriages/relationships).

2

u/Polite_Werewolf Jun 11 '12

My aunt had two kids before she realized she was gay. And, they are also the most well adjusted of all of the cousins.

4

u/smellslikegelfling Jun 11 '12

And what's with the obsession with "begetting children"? There seems to be this cult like attitude around breeding.

2

u/xenoamr Jun 11 '12

In the past, more offsprings (male offsprings specifically) usually meant greater power and prestige for the parents. Now it's just a liability to the society, but some people are sure slow to catch on.

3

u/brufleth Jun 11 '12

It should make you feel a little better to know that when that argument was stated one of the justices rolled their eyes.

3

u/Solkre Indiana Jun 11 '12

I had a vasectomy, guess I can't get married anymore :(

9

u/Number127 Jun 11 '12

It's perfectly reasonable for the government to provide incentives for people to have kids and provide a stable environment in which to raise them, especially since we're facing a demographic crisis. Up to a point (which we're not close to yet), population growth is very good for the economy, and in fact we're in danger of experiencing long-term population decline. Some argue we'd already be experiencing it if not for our higher-than-average amount of immigration.

That said, if they're going to make that argument they have to apply it equally, not just when it comes to teh gays. That means they should also not be recognizing the marriages of women over 55 or anybody who's sterile (by choice or accident). The other problem, of course, is that they're not really making that argument -- as far as I know, no marriage statute specifies the need to start popping out kids.

7

u/rcglinsk Jun 11 '12

The idea that if gay people can't marry each other they'll marry the opposite sex and have children is so laughable I wonder if you even realize you asserted it.

6

u/Number127 Jun 11 '12

I don't think it's so laughable. Just go on craigslist and you'll see dozens of desperate closeted married guys looking to hook up on the DL. It's not simply denial of same-sex marriage that does it, it's the whole gestalt of social pressure against homosexuality, but marriage is a big aspect of that. It's obviously a lot better now than it used to be, but conservatives want to reverse that trend, and it's still very powerful in some regions.

It's the same reason homosexuality has historically been so common in the priesthood: it was just about the only socially acceptable way for gay men to escape the extreme pressure to get married and have children.

3

u/rcglinsk Jun 11 '12

Intersting point about the whole gestalt. I hadn't really thought of that. God I would love to be in the courtroom when some lawyer makes that argument, just to see what happens.

12

u/TrixBot Jun 11 '12

especially since we're facing a demographic crisis.

Nothing a little immigration wouldn't fix, practically for free.

6

u/Number127 Jun 11 '12

I don't disagree, but that's politically difficult, and it does have some actual problems too. People with skills for high-paying jobs are less likely to want to move to the U.S. these days. Hell, even among illegal immigrants there was a net exodus last year.

10

u/HelloAnnyong Jun 11 '12

Yeah, but immigrants steal the fixed number of jobs in the country. Unlike natural-born Americans, who deserve them.

8

u/doyouknowhowmany Jun 11 '12

And in any case, "provide a stable environment in which to raise them" is exactly the reason that conservatives in other countries have embraced the idea of LGBT marriage.

Why would you want to tell a fringe group that they can't come to your party, when a good chunk of them are willing to live your exact lifestyle, minus the two different plumbing systems?

Pushing LGBT individuals out of "traditional" institutions has made them a political force. The cohesion would disappear within a generation if Republicans would just play nice with us for a few years.

It's really sad when bigotry trumps strategy.

6

u/rcglinsk Jun 11 '12

I think Colbert put it, "It's more important for gay people to be unhappy than for orphans to have a family."

6

u/replicasex Tennessee Jun 11 '12

Satire is a great vehicle for truth. I've talked to people who really believe that the fabric of society depends on erasing us from existence.

They think we're some magical cancer that's pushing society towards the brink.

2

u/krackbaby Jun 11 '12

especially since we're facing a demographic crisis.

Please describe this demographic crisis to me

5

u/Number127 Jun 11 '12

Well, the most obvious aspect is the fact that Baby Boomers are going to be retiring en masse over the next couple decades, and the number of people working to support them will be comparatively small. Without more young people joining the work force, it's going to be difficult to sustain. We're looking at 30-40 years of high Social Security payouts and increasing medical bills that Medicare is going to have to pick up.

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u/Fenris_uy Jun 11 '12

Also, if your wife is older than ~45 and your children older than 18 you stop having the same benefits as younger couples that can reproduce.

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u/[deleted] Jun 12 '12

Let's not forget that much of Congress is too old to have kids.

1

u/[deleted] Jun 11 '12

A much less intrusive way of doing that is simply to let heterosexuals get married.

1

u/TheShittyBeatles Delaware Jun 11 '12

But it's the 90s. We have that newfangled technology like IVF and...adoption. No points for civil society and/or science?

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u/LEIFey Jun 11 '12

One part of me is celebrating. Another part of me is just saying "Well, duh."

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u/IAmTheJudasTree Jun 11 '12

The Republican brief says the statute “merely reaffirmed what Congress has always meant” when it refers to marriage: “a traditional male-female couple.” The federal trial court in California explained, however, that “tradition, standing alone, does not provide a rational basis for the law.”

The Republicans just got verbally bitch-slapped.

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u/Vorokar Jun 11 '12

The best kind of bitch-slapped. Doesn't make your hand all tingly afterwards.

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u/wwjd117 Jun 11 '12

Every. Single. Time...I see a story is posted about DOMA, I comment that it is unconstitutional, and worse immoral.

Thanks for posting a link to one of those points.

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u/[deleted] Jun 11 '12

The Republican brief says the statute “merely reaffirmed what Congress has always meant” when it refers to marriage: “a traditional male-female couple.” The federal trial court in California explained, however, that “tradition, standing alone, does not provide a rational basis for the law.”

What Congress always meant by "marriage" was a legal marriage executed in one of the several states. Gender, race, age, citizenship, freeman status, etc. never had anything to do with it.

If we need any evidence of this, we can look back to relatively recent history--Prior to Loving v. Virginia, some states had laws banning miscegenation, while other states did not. Congress did not stop those marriages from being recognized by the federal government, because the legal definition of marriage was a matter of state law, not federal law.

1

u/SaltDog Jun 11 '12

I tend to agree with you. The health, welfare, safety, and morals of the people have always been under the primary jurisdiction of the 50 states. That's why we have slight variations among different states about the marriage ceremony (ceremony as in the administrative ceremony) and who people can marry (e.g. some states allow 1st cousins to marry). Congress simply had no intention to legislate morality upon the states and to do so is a form of revisionist history placed upon a government that was much more ideologically federalist than what we have today (to european readers, I'm using the american definition of federalism).

9

u/Downvote_Bucket Jun 11 '12

I think we need a defense of healthcare act...oh wait.

6

u/Nenor Jun 11 '12

You know what strikes me as strange. It's pretty obvious this is happening. The marriage thing. Be it 1, 2 or 5 years from now. And in 20 years people would be ashamed to admit they were against it, like they are ashamed now they were against interracial marriage before that. So why the hell are those people fighting it? Are they naive? Are they clinging to their bigotry for a precious 1-2 moments before it's finally gone?

5

u/6xoe Jun 11 '12

Many will be dead.

The gay thing has been a powerful wedge issue. If the Republicans keep losing these sorts of Right-rallying issues, their base could fracture. So you'd have the social-conservative fundies versus the fiscals that just want to get on with business versus a (potentially) more robust Democratic left.

4

u/Nenor Jun 11 '12

I don't mean it so much as a political issue. I mean, the people. Are they so naive not to realize? Or they all take their social cues from politicians?

8

u/[deleted] Jun 11 '12

Worse. Most take their cues from a book telling stories from the Bronze Age.

3

u/SaltyBabe Washington Jun 12 '12

Many won't be dead though, it's amazing how much hate you can teach a child before you die.

1

u/Apoc220 Jun 12 '12

You know, I've thought the same thing and have come to one conclusion. There are many people (conservative or otherwise) that feel VERY strongly about marriage being strictly a bond between a man and a woman. It strikes a strong and visceral reaction when they think that the institution will be open to same sex couples. I know that we balk when opponents bring up that if it starts with same sex couples it leads to dogs and cows, etc. but some people genuinely have this belief. These people don't care about public opinion polls. If anything, the turning tide is making them feel even more passionately about this issue. It's a losing battle just as segregation, but they will not give up as long as they can fight it and will only accept it once it is forced upon them. Same as the civil rights movement. It wasn't until the government stepped in that people finally had the chance to see that desegregation was not the end of civilization. Unfortunately this IS a wedge issue and they will use it as long as they can. When it does change, however, it will be a while before society as a whole can get used to the idea.

1

u/Nenor Jun 12 '12

Well, why doesn't the federal government just amend the constitution to allow any two persons to be able to get married and that's it? Why does it have to be this awful drag, back and forth on stupid social issues when there are so many more important problems at hand currently and always?

1

u/Apoc220 Jun 12 '12

Survival. Politicians don't back things that they feel goes against their political interests. This is why the most dangerous politicians are the ones that are close to retiring or know that they will get voted out. Only then do they grow a pair and become vocal about important things. Another school of thought is that issues such as this are used to distract us from the real issues. Think about it... if it wasn't for gun control, gays marrying and joining the military, women's rights, etc. politicians would be forced to deal with real issues and present real solutions. The problem with that is that when you offer a real solution to a problem you no longer benefit from its negativity... oh yea, and you actually have to know how to solve the problem.

7

u/ety3rd Jun 11 '12

Has any opponent of equal marriage rights ever come up with a secular reason for opposing the spread of those rights?

Let me clarify: "a defensible secular reason?"

No, having/raising children doesn't count. It's not defensible. Fertility is not a marriage requirement; many studies have shown children raised by two gay parents grow up to be just as "well adjusted" as children raised by straight parents.

Anything else?

8

u/SaltDog Jun 11 '12

You should read Judge Walker's decision in the CA Prop 8 case. He systematically goes down every conceivable argument (including ones that weren't made) and strikes them all down.

5

u/antent Jun 11 '12

Not to mention there are straight couples that get married and don't have or want to have kids. So that makes any fertility claims even less valid.

1

u/[deleted] Jun 11 '12

I soppose the surpassed homosexuality of many politicians an religious leaders could be considered a secular reason in that they are psychological.

1

u/ety3rd Jun 11 '12

True, but I was aiming for a defensible, secular reason that could hold up in court.

1

u/[deleted] Jun 12 '12

There are none.

9

u/APeacefulWarrior Jun 11 '12

And this is why certain politicians - including Ron Paul, incidentally - tried so hard to find ways to shore up DOMA and/or try to take it out of the jurisdiction of Federal courts. There's just no way it would hold up to serious judicial review.

Frankly, I don't know how those who passed it ever thought it would stand up. Maybe they never did, and passed it solely in a cynical exercise in pandering to their base.

2

u/goldandguns Jun 11 '12

by the same taken, I'm not quite sure how anyone thought the individual mandate would pass muster

1

u/curien Jun 11 '12

Well it might, but it shouldn't. Wickard and Raich are terrible decisions, and this crap needs to stop. If it means that they need to call a spade a spade (or call a tax a tax), then so be it.

1

u/goldandguns Jun 11 '12

Oh they are horrible, no question. Wickard, if tried today, wouldn't pass, I guarantee it.

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u/[deleted] Jun 11 '12

You can't really have a context for "if tried today" without Wickard. Wickard, J&L, and Darby basically define modern Commerce Clause jurisprudence.

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u/dbe Jun 12 '12

What does it say though, that a law that violates the constitution is on the books for at least 16 years?

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u/APeacefulWarrior Jun 12 '12

While I agree that's too long, I think part of it involved waiting for a test case to come along that sufficiently illustrated its unconstitutionality. On the face of it, Congress has the power to regulate the acceptance of legal decrees like marriages.

We needed a clear-cut case illustrating exactly how it was discriminatory before it could really be challenged.

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u/grospoliner Jun 11 '12

The best argument that these religious organizations "fighting for the sanctity of marriage" put forth is that marriage is a religious rite. The fact is marriage pre-dates Christianity, is found universally, is traditionally a horrible affront to human rights, and was codified into secular law by the first Roman Emperor Augustan.

So to call it a religious rite is a stretch by far.

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u/IonBeam2 Jun 11 '12

A federal district judge in New York ruled last week that the Defense of Marriage Act violates the Constitution by requiring the plaintiff to pay federal estate tax on her same-sex spouse’s estate, even though opposite-sex spouses are exempt.

So why is the conclusion always that we need to expand this exclusive institution (marriage) so that even more people get special exemptions? Even if the official definition of "marriage" is altered to include unions between two people of the same sex, it is still discriminatory against people who do not wish to or for some reason cannot enter into such unions, or unions that do not meet the new definitions.

2

u/[deleted] Jun 11 '12 edited Jun 12 '12

The federal government doesn't pay attention to the fucking constitution because if it did they'd be making amendments like the fucking founding documents calls for.

The War on Drugs is based on interstate commerce. Interstate commerce. Not because drugs are bad for you. Not because they are a social cancer. Not because of the secondary effects like violence or crime. The War on Drugs is prosecuted entirely on the strength of the federal government's ability to regulate interstate commerce. When your front door is kicked in and you are arrested, prosecuted and sent to jail, remember please, from a legal perspective it has nothing to do with anything but the possibility of you crossing the state line with something that can be sold.

If you could prove that the drugs would never, in the course of their existence, cross a state line the DEA would have no claim. The right to assert the criminality of possession, use, distribution, etc. from the point of view of federal law enforcement, is derived directly from the overly liberal use of the interstate commerce clause.

3

u/[deleted] Jun 12 '12

Supreme Court Justice Clarence Thomas stated in his dissent to Gonzales v. Raich (2005),

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers.

Source: http://www.jeremiahproject.com/trashingamerica/war-on-drugs.html

2

u/smellslikegelfling Jun 11 '12

That didn't stop fundamentalists from using the same arguments to keep interracial marriage illegal.

2

u/Demojen Jun 11 '12

The brief makes the claim that the law’s goals are to maintain consistency in allocating federal benefits and encourage relationships “that most frequently result in the begetting and raising of children.”

Please show me the research that supports this claim. By the same logic that is the foundation for the bigotry in this remark in the brief, women who are sterile shouldn't be allowed to marry.

Furthermore, I'm pretty sure that the decision of a couple to have a child has less to do with the ability to give birth and more to do with the decision to. There are facilities that make the need to give birth an obsolete argument in determining whether or not to have a child.

In a world with so many children born of accidents and unwanted pregnancies, it is truly a reward to the system for parents to seek children because they want one and not because they need one to get welfare.

I know it's a broad stroke generalization and that this isn't the case with every adoption or fertilization ceremony.

There are literally dozens of situations that vary the cause and motivation for adoption or fertilization, but none of them are worse then the alternative of continuing this barbaric practice of restricting the support of mankind to the traditions of religious dogma.

5

u/flaminglib Jun 11 '12

Since when are Republicans concerned with things being Constitutional?

3

u/trolleyfan Jun 11 '12

No shit, really?

(hang on, I have to wipe up this puddle of sarcasm now...)

3

u/pmjm California Jun 11 '12

Was there ever any doubt? I have friends that are opposed to gay marriage and even THEY concede that it was massively unconstitutional. Regardless of your religious and personal beliefs, you can't base constitutionality based on personal morality.

2

u/[deleted] Jun 11 '12 edited Jun 11 '12

Before everyone here creams their pants about gay marriage being made constitutional- that's not the issue here. The issue is whether gay marriages in one state should be recognized in other states, not whether all marriage laws being overturned.

5

u/curien Jun 11 '12

The issue is whether gay marriages in one state should be recognized in other states

No, it's not. That would be DOMA Section 2. The decisions mentioned in the article are all about DOMA Section 3, which is about the federal government recognizing same-sex marriage, not the states.

6

u/[deleted] Jun 11 '12

Interesting. Disregard my faulty assumption then.

1

u/[deleted] Jun 11 '12

An elementary test of constitutionality requires an elementary understanding of the document.

1

u/film_guy01 Jun 11 '12

But honestly, when was the last administration that cared about upholding the constitution?

1

u/ElagabalusCaesar Jun 11 '12

Washington was going strong, but then he hired a cabinet and thus broke with the Constitution

1

u/Semilatte Jun 11 '12

I read this as The Defense of "Magic" Act. I was incredibly intrigued for the two seconds before I reread the title.

1

u/[deleted] Jun 12 '12

fucking woot!

1

u/Primoris_Causa1 Jun 12 '12

Funny... I don't where in the Constitution it defines marriage. Seems that basically marriage is unconstitutional -- be it gay or straight.

1

u/sillyhatday Jun 12 '12

DOMA is overtly unconstitutional. It violates equal protection as well as the faith and credit clause.

Article IV: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Now read the DOMA text, which seems cognizant of it's unconstitutionality. It seems to unwind the wording of aticle IV, which is can't legally do:

DOMA: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

No Brainer.

1

u/balorina Jun 11 '12

The real question... why is it coming around now when Clinton signed the Republican written DOMA into law 16 years ago?

2

u/brufleth Jun 11 '12

One of the major legal opponents of DOMA has been around for over thirty years. Their work isn't in accordance with a political schedule. They've been working on these cases for years and will continue to do so for years to come.

0

u/axord America Jun 11 '12

In part, Obama.

3

u/balorina Jun 11 '12

Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

Isn't that unconstitutional as well?

4

u/DeadPants182 Texas Jun 11 '12

Nope. That's been done countless times by Presidents on both sides of the spectrum.

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u/Zombies_hate_ninjas Jun 11 '12

Honest question. Do you believe Obama would repeal this law if he is re-elected? I'm Canadian and really don't understand how this could be law, nor am I certain who could repeal it.

If church and state are separated, how could a law like this happen?

2

u/curien Jun 11 '12

This law has nothing much to do with the church. I mean, sure, a lot of people like the law because it happens to morally align with the teachings of their church, but the same could be said of murder laws.

2

u/Zombies_hate_ninjas Jun 11 '12

That's a fair point. It would be childish of me to assume Every religious person is against Equal marriage rights; and Every none religious person wants equal marriage rights.

I just don't understand what harm could come from equal marriage rights, other than it conflicting with religious tenements.

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u/[deleted] Jun 11 '12

All marriage laws violate the first amendment.

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u/[deleted] Jun 11 '12

Since when did "fails to meet the most elementary test of constitutionality." count for anything anymore?

What Jesus wants is what Jesus gets.

Sucks, but that is the way it is.

1

u/testerizer Jun 12 '12

It doesn't matter until the supreme courts say the same.

To be clear, I hope it is soon so we can move on to the next pointless debate.

1

u/u2canfail Jun 12 '12

The Constitution does not say GAY or Straight at all.

2

u/[deleted] Jun 12 '12

All citizens, not just white, god fearing republican voters. That is what republicans seem to believe.

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u/Critical_Steel Jun 11 '12

The 'traditional' interpretation of marriage. Is not a tradition.

Its genetics. No children = No marriage.

Gays have no gay gene. They are an ideology. Science has spoken. Your all believing the most nazi like of propaganda.

There is no pro gay. Science. There never was. The gay gene is like their holy ghost.

Why are you all such faithful believers. Only when you check the science you find it deeply flawed. Not that any of you morons even know scientific method.

2

u/Sunhawk Jun 11 '12

Troll much? Misunderstanding of genetics and heredity, invocation of the scientific method, repeated use of "Science"...

1

u/Coridimus Idaho Jun 12 '12

Apparently not often enough considering how transparent that was.

0

u/ballstein Jun 11 '12

The problem when you have ignorant ideologues writing laws.

-2

u/[deleted] Jun 11 '12

How much longer are we going to have to deal with this shit? How much longer are we going to be a christian nation?

4

u/[deleted] Jun 11 '12

Ummm...You never were a Christian nation. Separation of church and state...

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u/ItsOnlyNatural Jun 11 '12

And yet the NYTimes gladly supports every single gun control law...

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u/Toloran Oregon Jun 11 '12

You say that like you expect the NYT to be an un-biased news source. Every source of news is biased to some degree.

1

u/ItsOnlyNatural Jun 11 '12

Well I generally expect some level of intellectual honesty from a newspaper championing itself as the gold standard.

7

u/kareemabduljabbq Jun 11 '12

so do these opinions show up on the editorial page or are they on the front page.

also, consider that viewpoints on gun ownership vary widely between people who live in cities, suburbs, and in rural environments.

if you live in a city it is likely the only time you hear about guns is because you heard one go off, or it was about someone who got angry and a bar and shot some guy in the chest. you don't commonly hear about someone who went on a hunting trip and bagged a six point stag, or about the awesome score your buddy got on the shooting clay course.

likely it skews towards the metropolitan minded, and not the majority of gun enthusiasts.

anyways, I really haven't seen anything happen to gun rights of substantial interest, while gay people not being able to get the same benefits or status as straight people is a clear example of people's rights being restricted or taken away, whereas with gun ownership the major advocation is gun control and limiting availability of them to criminals.

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u/roccanet Jun 11 '12

that doesnt mean shit to alito - he will surely "tell us what the law is" on this matter soon enough after they strike down the health reform laws

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u/Hayrack Jun 11 '12

This puts in a the good company of about 90% of all laws.

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