article about gay marriage decision

[Enrique]

http://rawstory.com/rs/2010/0709/obama-attorney-expected-stand-federal-gay-marriage-ban-lawyers/

White House declines comment;
Political implications could be enormous

(...)

In an email Friday, a White House spokesperson told Raw Story, "This is a question for the Justice Department."

"The only comment I have is the Department is reviewing the decision," Tracy Schmaler, a Justice Department spokesperson, told Raw Story shortly after.

Evan Wolfson, director of the gay rights group Freedom to Marry, said he doesn't know what the Justice Department will do, but hopes that if they appeal, they will couch their filing carefully.
"I think we're going to have to see what the Justice Department decides," Wolfson said. "I do hope that, if there is an appeal, that at a minimum the administration will agree that the appellate court should apply a presumption of unconstitutionality -- which in legal terms is called heightened scrutiny -- to this law that they concede is discriminatory."

"My message (to Obama) would be: Do the right thing," Wolfson added. "You agree this law is discriminatory. A highly respected conservative Republican-appointed judge has now said it's unconstitutional. Stop enforcing this unfair and discriminatory law that harms families and helps no one."

(...)




edit to make title less inflammatory.

[xchrom]

1. We will see. Nt

[sandnsea]

2. Isn't this the Supreme Court test case?

In order to get there, it has to be appealed. I think they expected to be on the other end of the appeals, but I think it probably still needs to go to the Supreme Court, doesn't it?

Unless Congress addresses the law.

[Skidmore]

4. Exactly. But a lot of folks won't educate them on the way the law works.

Gay marriage must be codified and stand on it own. Executive orders or administrative regulations will not accomplish this. The ban law must be reviewed for constitutionality by the SCOTUS.

[vaberella]

6. Enrique can you read post #2 and maybe edit your post. n/t

[SunsetDreams]

11. ahh that makes sense

[meow mix]

3. anti-war, pro-gay republicans.

while our guys take the opposite stance.

congrats to the sensible-centrists for completly fucking everything

[vaberella]

5. I don't see where the White House has made a decision.

And Obama is for the repeal of DOMA...so I don't agree with this.

[Enrique]

7. it sounds like you do agree with the article

the article states that the administration has not made a decision, and it also references their opposition to DOMA. Not sure what you don't agree with.

[Raine1967]

9. I think the title of the article is simplistic.

and inflammatory, especially after reading the first few posts in this thread.

This is a test case. The Administration has made it clear on its stance on DOMA.

Unless Congress acts, this is where it was ALWAYS headed. That is the way the law and the justice system works.

[vaberella]

20. I meant that I don't agree with your title. Excuse my statement. n/t

[SunsetDreams]

8. If the Administration Opposes DOMA, and they are making no comment

Why are these people or anyone assuming the Administration will appeal the courts "strike down" of part 2 of DOMA as being unconstitutional?


Defense of Marriage Act is the short title of a federal law of the United States passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions were codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. The law, also known as DOMA, had two effects:

1.No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2.The federal government defines marriage as a legal union exclusively between one man and one woman.

http://en.wikipedia.org/wiki/Defense_of_Marriage_Act

If they Oppose DOMA, why on earth would they appeal the decision? They said no such thing about repealing, it sounds like this article jumped the shark.

[jberryhill]

10. "If they Oppose DOMA, why on earth would they appeal the decision?"

Because the legal effect of this decision is limited to Massachusetts.

Without a Supreme Court decision, it remains the law in, for example, Iowa.

One might as well ask, "Why do you not want the Supreme Court to affirm this decision?"

[SunsetDreams]

12. Thank you jberry, I noticed that

post above, after I posted :)

[Raine1967]

13. They may have to appeal it.

Even though the administration opposes DOMA -- the Justice Department is still responsible for following federal law.

THAT said, and please follow me here... I know this won't be popular, but I am going to say it any way.

This ruling implies that the Federal government can't prevent states from denying rights to gay couples. This can actually be used as ammunition for states that want to ban (or have already banned) gay marriage.

The other aspect of the ruling is that it since it is a district court, it only really applies to the court's jurisdiction:
The rulings apply to Massachusetts but could have broader implications if they're upheld on appeal. ( http://news.yahoo.com/s/ap/20100708/ap_on_re_us/us_gay_marriage_benefits )

This require's the Justice Department to appeal the ruling. Understandably, this is aggravating those who think the Obama Justice Dept. should leave it as is. That said, IMO, there are two things wrong with this thought process. First, if the ruling is left as is, it only applies to Massachusetts, so the opportunity to have the ruling applied nationwide is lost. The other is more philosophical from a political perspective: we on the left were angry when Bush interfered with and influenced the Justice Department. Are we now to expect Obama to do that which we loathed?

Whether or not it gets appealed and ends up in the Supreme Court, there are still two Constitutional aspects to this issue that will eventually make it the SCOTUS. They are equal protection, and interstate commerce. The regulation of the latter is explicitly put under the authority of Congress in Article I, Section 8. Article I, Section 10 also prohibits states from "impairing the obligation of contracts", which could be interpreted to mean the marriage contract from a state which permits gay marriage. Article 4, Section 1 also requires states to recognize the laws of other states.

The 14th Amendment (Section 1) provides equal protection under the law to ALL citizens. This is the approach in the California Prop 8 case, and the one most likely to succeed.

[jberryhill]

14. The "double edged sword"

Appealing the narrow issue of federal recognition of state sanctioned marriages doesn't hurt as much as it would help.

On the one hand, the argument goes that getting rid of the federal recognition ban, since only states determine who can marry, undercuts the equal protection argument.

I believe that is incorrect because these are really two separate questions:

1. Can States Determine Who CAN Wed? (or who IS married)

2. Can States Determine Who CAN'T Wed?

I think most here see these as the same question.

They are not the same question.

Because there are several states which already recognize same sex marriage, a federal court is going to have a hard time saying "they can't do that". That horse has left the barn, and conservative "federalists" (by their definition) are in a tough spot to take that position. It is not analogous to the particular situation addressed when Utah was admitted to the Union, and outlawing polygamy was an express condition of that admission (and the cases that followed).

The answer to question 1 is pretty broad. States have always varied on things like age, first cousins or other degrees of relationship, etc. and have broad freedom to say who CAN marry.

The answer to question 2 is more qualified. A state can't forbid marriage if the proscription would violate equal protection (Loving and related cases).

Try this thought experiment - Let's say that EVERY state on its own legalized same sex marriage and recognized other states' same sex marriages (such as in New York). Under that hypothetical, which part of DOMA would be the larger problem?

Under that scenario, DOMA's full faith and credit restriction would be irrelevant. However, federal non-recognition would STILL be a problem.

Both parts need to go, but they are two separate questions.

[sandnsea]

15. The state aspect bugged me too

I don't see how they can say federal benefits will go to married gay couples in one state, but gay couples in other states will be denied, based on the denial from state law. Oregon has a legal partnership type law, to get around the haters who voted on man/woman marriage in our state Constitution. I don't know what kind of federal benefits they get, and don't know if this ruling would apply to them since the word here isn't "marriage".

It seems like it kicks it back to states' rights, which is the last thing we need any more of.

[jberryhill]

16. That already happens now

In New York, first cousins can marry and the spouse is recognized as such for federal purposes.

In Ohio, first cousins cannot marry, and you can't claim your first cousin partner as a spouse for federal purposes.

When Oregon has to pick up the tab, in terms of federal benefits that would otherwise be available, then they have a definite practical incentive for re-visiting their definitions.

[sandnsea]

18. It's not the same

In Ohio, first cousins don't have a separate legal entity that gives them partnership rights. I'm not talking about the myriad of individuals who live together without any sort of state sanctioning.

I'm talking about the fact that there are different LEGAL means to create gay partnerships across the country. It can't possibly be equal protection to provide some with federal benefits based on the word "marriage", and deny others who only have a different name to the partnership contract due to prejudice.

[jberryhill]

19. No two things are ever completely the same

This case is not a vehicle for complete marriage equality from coast to coast, but wasn't intended to be either.

The questions of "Can a state decide who can marry?" and "What are the limits of whom a state can say cannot marry?" are not the same question.

This case is about the first question, not the second question.

The fact is that states have broad, legitimate and exclusive power to say "these two people are married", and the federal government should not have the power to say "no they are not". That is this case.

The second question, "how far can the states go in who CAN'T marry" is bounded by equal protection considerations. That is not this case.

A favorable outcome in this case does not impair the answer to the second question, because they are two different questions.

Imagine this. Let's say that EVERY state decided on its own to recognize same sex marriages. The part of DOMA at issue here would STILL deny them federal recognition. Again, that's what is in dispute here.

[sandnsea]

21. No, this is a federal equal protection case

Can the federal government decide who to provide benefits to based on the federal government definition of marriage.

Or, does the federal government have to provide federal benefits to residents of a state based on the legality of marriage in that state.

Those are the questions.

The judge decided the federal government cannot override a state's right to determine marriage in that state. DOMA is illegal.

The federal government must extend federal benefits to any married couple in any state.

So now the question becomes, what about the states that provide legal partnership in a name other than marriage. Don't those individuals deserve the same equal protection, since this court has stated the federal government cannot define marriage.

I don't think they ever expected a conservative judge to overturn DOMA.

[jberryhill]

22. This distinction may be difficult, but try to grasp it

The "equal protection" argument made here is between two classes of people (gay and straight) who are already married.

What this section of DOMA was doing, contrary to state prerogatives to say who is married, was saying "we prefer this group of married people to that other group of married people".

The "equal protection" issue was not among two classes of people who (a) can and (b) cannot, get married in the first place.

And maybe that's why there is some confusion on just what the narrow issue here is.

The point is that states - only states - can marry people. There are no "federal marriages". So the idea that the federal government can distinguish between classes of married people, is an encroachment on state sovereignty.

Consider this passage from the decision carefully, and note what I have bolded:

"Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is
not “grounded in sufficient factual context to ascertain some relation” between it
and the classification DOMA effects.110 To begin with, this court notes that DOMA cannot
possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already
married to members of the same sex. But more generally, this court cannot discern a means by
which the federal government’s denial of benefits to same-sex spouses might encourage
homosexual people to marry members of the opposite sex.111 And denying marriage-based
benefits to same-sex spouses certainly bears no reasonable relation to any interest the government
might have in making heterosexual marriages more secure.

What remains, therefore, is the possibility that Congress sought to deny recognition to
same-sex marriages in order to make heterosexual marriage appear more valuable or desirable.
But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex
couples who exercise their rights under state law.”112 And this the Constitution does not permit."

The phrase "equal protection" gets thrown around a lot in these discussions, but it needs to be recognized, for the purpose of this decision, that it is not about the right of gays v. straights to have equal protection for the purpose of becoming married. This case was about the relative rights of two groups of people who are already married.

What this section of DOMA was saying was "even if the state says you are married, the federal government won't agree". The federal government, however, cannot say that one marriage, legal in state X, will be recognized, but some other marriage won't. It's not up to the feds to say who is married.

This decision does not lead to an affirmance which says, "States can't ban same sex marriage". That is a DIFFERENT "equal protection" question about who can become married, and not an "equal protection" question about how the federal government MUST treat people who are already married.

Both questions are premised on an equal protection argument, but they are not about the same two groups of disparately treated people.

The thing is, once we say the feds have no business deciding who IS married, then it can follow that the feds have no legitimate interest in restricting operation of full faith and credit. That is also NOT this case, but this case provides a springboard for that next step.

So yes it is a federal equal protection case, but the distinction being made in this context is between two groups of people who are already lawfully married in their state. In making distinctions between groups of married people, DOMA is violating a fundamental principle that states decide who is married.

The OTHER case is about whether equal protection is violated when states deny the right to become married. That's another question entirely, and there IS a federal role there.

[sandnsea]

23. Which is why your Ohio argument was wrong

The issue isn't about who can get married in any given state - rather it's about the federal benefits granted once the state has created a definition of marriage.

HOWEVER, states that created separate terminology for what is in essence marriage, and often filed for on the exact same forms as a marriage license, will also have a basis to have a suit filed for equal protection. Can the federal government deny benefits if the state declares a civil union is legally the same as a marriage, except in name. And if it can't, then the federal government will have to affirm all legal gay partnerships in any state that grants them. That's the complete opposite of DOMA, as far as I can tell.

[jberryhill]

24. "Can the federal government deny benefits if the state declares a civil union is legally the same"

Probably not.

Because if a state expressly declares them to be "legally the same", then it is not up to the federal government to make a legal distinction. Again, if comes back to the basic proposition that the federal government does not have the power to make distinctions of legal status in this area.

The other "freak out" that people are having is this sense that the preceding sentence necessarily implies that the decision reinforces the claimed authority of states to ban gay marriage. It does not.

Loving v. Virginia didn't assert a Constitutional basis for saying people "aren't married". It asserted a Constitutional limitation on states' ability to say people "can't get married".

But the other thing is that nothing is necessarily static. If, in considering this issue relative to status in Oregon, a court decides that civil unions are federally distinguishable from marriage, then Oregon has some work to do. You pose the question as if it is impossible for the situation in Oregon to be changed in response to this new circumstance.

This decision, if applied in the way you propose to Oregonians, gives Oregonians food for thought about how they might change the situation in their state.

Take something like common law marriages. Some states recognize them. Some states don't. Nobody in a common law marriage has a certificate from the state that says "You're married". Can they claim to be married on their federal tax return? Yes they can. If the IRS questions them, then there is no federal law which provides the answer - state law does.

So, how can it possibly be that people living together in common law marriage states can claim to be married for federal purposes, but people living together in non common law marriage states can't? The simple answer is that it is state law that determines whether or not to people ARE married, and state laws vary more than people seem to think about.

[Raine1967]

17. I think what you are saying is exactly why this has to be appealed.

The ruling is groundbreaking, but it opens up many more things that need to be answered.

This ruling is like saying I have a certain right in state "A* but not state *B* ... THIS is why I believe the DOJ will appeal.

and I truly believe it isn't as nefarious as some people might think it is.