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Thu Jun 27, 2013, 11:05 AM

I'll say it again: DOMA HAS NOT BEEN STRUCK DOWN

Yesterday's ruling only affected Section 3 of DOMA, which concerns recognition of same-sex marriages by agencies of the federal government. The rest of the law remains intact, including the part that permits states to refuse to recognize same-sex marriages legally performed in other states. Yesterday's ruling, while a big step forward, is still only a step. It is important that people understand that!

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Reply I'll say it again: DOMA HAS NOT BEEN STRUCK DOWN (Original post)
markpkessinger Jun 2013 OP
Skittles Jun 2013 #1
HappyMe Jun 2013 #2
Texasgal Jun 2013 #3
markpkessinger Jun 2013 #4
bullwinkle428 Jun 2013 #5
MichiganVote Jun 2013 #6
rhett o rick Jun 2013 #26
ProSense Jun 2013 #7
dsc Jun 2013 #10
Robb Jun 2013 #12
dsc Jun 2013 #15
Robb Jun 2013 #31
ProSense Jun 2013 #14
dsc Jun 2013 #16
ProSense Jun 2013 #19
dsc Jun 2013 #23
ProSense Jun 2013 #28
markpkessinger Jun 2013 #35
spooky3 Jun 2013 #32
markpkessinger Jun 2013 #34
William769 Jun 2013 #18
dsc Jun 2013 #24
bigbrother05 Jun 2013 #29
Major Hogwash Jun 2013 #8
backscatter712 Jun 2013 #9
ecstatic Jun 2013 #11
TalkingDog Jun 2013 #20
ecstatic Jun 2013 #25
cali Jun 2013 #13
dsc Jun 2013 #17
TalkingDog Jun 2013 #21
dsc Jun 2013 #22
mike_c Jun 2013 #27
markpkessinger Jun 2013 #30
Fire Walk With Me Jun 2013 #33

Response to markpkessinger (Original post)

Thu Jun 27, 2013, 11:07 AM

1. it's a big step in the right, er, left direction

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 11:08 AM

2. That door has been kicked wide open.

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 11:14 AM

3. Thanks Debbie Downer!

Appreciate your thoughtful post!

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Response to Texasgal (Reply #3)

Thu Jun 27, 2013, 11:20 AM

4. Sorry if reality is a 'downer' to you . , ,

. . . but I think it is more important that we not become complacent than it is to avoid raining on anybody's parade.

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Response to Texasgal (Reply #3)

Thu Jun 27, 2013, 11:23 AM

5. Mark can correct me if I'm wrong, but I'm quite sure he has identified

himself as a member of the GLBT community. Therefore, this affects him directly, and he has every right to share this highly relevant information with the rest of the DU community.

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Response to Texasgal (Reply #3)

Thu Jun 27, 2013, 11:23 AM

6. He is right you know. You have only to look at the outcome re: VRA to

 

see that vigilance and continued work is needed to uphold what has been gained or to advance marriage equality.

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Response to Texasgal (Reply #3)

Thu Jun 27, 2013, 12:23 PM

26. Is it your point that we shouldnt discuss this? Is what he is saying not the truth?

 

Isnt it important to know exactly what we are dealing with?

On edit: Those questions are rhetorical. You've clearly made your point.

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 11:25 AM

7. "The Supreme Court did what I once thought was unthinkable in striking down DOMA."

<...>

The Supreme Court did what I once thought was unthinkable in striking down DOMA. The Court could have played it safe ruling on federalism grounds finding that the federal government must recognize states' determination of who may or may not get married. But instead, a majority of the Justices took one huge step further, striking down DOMA on Equal Protection grounds. That gives us a new quiver to go after laws that discriminate against same-sex couples in every state.

http://www.aclu.org/blog/lgbt-rights/big-win-today-now-full-equality-sight


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Response to ProSense (Reply #7)

Thu Jun 27, 2013, 11:48 AM

10. The ACLU was, unusually for them, sloppy in its writing here

Part of DOMA has been struck down not the whole thing. Part 3 was struck down meaning that the federal government will now recognize same sex marriages that were performed in a state where they were recognized and whose couples are still living in a state in which they are recognized. But part 2, which permits states to not recognize the same sex marriages performed in other states lives on. Thus the numerous friends of mine who got married legally in other places are being treated no differently today than they were yesterday. To gain benefit from this decision they have to move to a state that legally recognizes their marriage.

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Response to dsc (Reply #10)

Thu Jun 27, 2013, 11:53 AM

12. I'm just tuning in -- didn't Pab or someone yesterday say something about

...the lack of a severability clause, or some such? I logged off before chasing it down and now can't find it.

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Response to Robb (Reply #12)

Thu Jun 27, 2013, 12:00 PM

15. the whole severability clause thing is a red herring

If one exists then the court has to only strike down the parts they find unconstitutional but if one doesn't then the court can do as it pleases. Part 2 of DOMA still stands.

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Response to dsc (Reply #15)

Thu Jun 27, 2013, 01:33 PM

31. Got it, thank you. nt

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Response to dsc (Reply #10)

Thu Jun 27, 2013, 11:58 AM

14. I get that

Part of DOMA has been struck down not the whole thing. Part 3 was struck down meaning that the federal government will now recognize same sex marriages that were performed in a state where they were recognized and whose couples are still living in a state in which they are recognized. But part 2, which permits states to not recognize the same sex marriages performed in other states lives on. Thus the numerous friends of mine who got married legally in other places are being treated no differently today than they were yesterday. To gain benefit from this decision they have to move to a state that legally recognizes their marriage.

...point, but considering that this was a federal law, it was essentially struck down. The ruling also makes it easier to challenge the other aspect of the law, which is the ACLU's point.

Today's ruling was the tipping point in the struggle for full equality for LGBT Americans. It is not by any means the end of discrimination against LGBT folks, but it is the end of legally sanctioned, federal discrimination against same-sex couples.

http://www.aclu.org/blog/lgbt-rights/big-win-today-now-full-equality-sight

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Response to ProSense (Reply #14)

Thu Jun 27, 2013, 12:03 PM

16. even that last paragraph is a bit sloppy

The feds still won't recognize some marriages that they would recognize if the couple weren't same sex. I get it is a big day, and I get that if the logic of the decision is followed then part 2 may become moot, but as of right now, it still exists.

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Response to dsc (Reply #16)

Thu Jun 27, 2013, 12:05 PM

19. Huh? n/t

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Response to ProSense (Reply #19)

Thu Jun 27, 2013, 12:14 PM

23. Let me spell it out for you

I have friends who are legally married (they got married in CA during the time it was legal and their marriage was grandfathered in). We live in NC. If they were a straight couple, NC would recognize their marriage, the feds would recognize their marriage, and all would be sunshine and bunny rabbits. Since they are a gay couple, NC doesn't recognize their marriage and because NC doesn't recognize their marriage, neither will the feds. Thus the feds are not recognizing a marriage that they otherwise would, solely because the couple is gay.

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Response to dsc (Reply #23)

Thu Jun 27, 2013, 12:26 PM

28. I'm not sure

"Let me spell it out for you

I have friends who are legally married (they got married in CA during the time it was legal and their marriage was grandfathered in). We live in NC. If they were a straight couple, NC would recognize their marriage, the feds would recognize their marriage, and all would be sunshine and bunny rabbits. Since they are a gay couple, NC doesn't recognize their marriage and because NC doesn't recognize their marriage, neither will the feds. Thus the feds are not recognizing a marriage that they otherwise would, solely because the couple is gay."

...what about that point you think I don't understand?

What does that have to do with the point I made, which is that this was a federal law, it was essentially struck down. The ruling also makes it easier to challenge the other aspect of the law, which is the ACLU's point.

The states that recognized same-sex marriage existed under DOMA. Everyone knew that striking down the law was going to be significant for its unconstitutionality under federal law.

Cut to the chase, a Democratic Congress could go about repealing the law. Who knows what other efforts will speed the path to all states seeing the light.

ACLU Hires Ex-McCain Strategist Steve Schmidt To Move GOP On Gay Marriage
http://www.democraticunderground.com/10023103289

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Response to ProSense (Reply #28)

Thu Jun 27, 2013, 04:21 PM

35. The import of DSC's point . . .

. . . Is that the plaintiff in this case, Edith Windsor, had she been a resident of a state like NC at the time of her partner's death, would still not be entitled to the spousal exemption from federal estate taxes, merely because she resided in a sfate that did not recognize her marriage. And that was tshe whole point of her lawsuit.

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Response to dsc (Reply #23)

Thu Jun 27, 2013, 02:28 PM

32. are you sure about this? I thought that the ruling meant that

if people are legally married but move to NC, for example, they are entitled to federal benefits given to spouses, such as Social Security based on spouses' earnings, federal income tax filing status/rates, federal estate tax exemptions, etc. If so, then the feds. DO recognize the marriage for the purposes of applying federal laws. The problem is that state laws may continue to discriminate against them, e.g., state income tax laws, because those (and some other provisions of DOMA) were not directly challenged in the recent lawsuit.

The basis for this interpretation is that as I understand it, the USSC ruled that the challenged provision was inconsistent with the Equal Protection amendment to the Constitution.

This also implies (according to various writers) that if people in states like NC choose to challenge their states' behavior or other aspects of DOMA, they now have a greater likelihood of success, because there is now a precedent on the part of the USSC of viewing the Equal Protection amendment as providing some protection against unfair discrimination.

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Response to dsc (Reply #23)

Thu Jun 27, 2013, 04:17 PM

34. This is really a critical point . . .

. . . because it means that the plaintiff in this case, Edith Windsor, if she and her partner had been residents of, say, NC at the time of her partner's death, would not be entitled to the spousal exemption from federal estate taxes.

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Response to ProSense (Reply #14)

Thu Jun 27, 2013, 12:05 PM

18. Thats the point many don't seem to grasp.

"but considering that this was a federal law, it was essentially struck down. The ruling also makes it easier to challenge the other aspect of the law, which is the ACLU's point."

Myself, I think it's a huge fucking deal, I may have never worked in the Federal Government but I did work in State Government & know how things like this work.

People need to get a clue, conservative heads are exploding right now for a reason. They lost and they lost big!

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Response to William769 (Reply #18)

Thu Jun 27, 2013, 12:16 PM

24. We are still years away from any such ruling

yes, this is a big deal, and yes I do harbor hopes that we will soon see part 2 mooted. But there is one big concern I have. Kennedy would have ruled on the merits of the Prop 8 case, yet two liberal justices voted to avoid the merits. Did Kennedy telegraph that he was not going to go our way on Prop 8?

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Response to dsc (Reply #24)

Thu Jun 27, 2013, 12:54 PM

29. IMO, the Prop 8 decision showed the Cons feared making a broad ruling

Had the Court taken on the case and used the same type of logic as they did on DOMA, they probably would have ruled Prop 8 unconstitutional based on equal protection. Such a ruling could have been applied broadly to all states and could have essentially made same sex marriage the law of the land.

By using the no standing excuse to return to the state, it has no effect outside of CA. They didn't rule on the merits, just that it was improperly brought to them.

The votes of the two Cons to return it kept it narrow. The votes of the two Lib to hear the case was an attempt to try and settle the broader issue now instead of later. The split reveals how close they were to hearing and deciding the case this time. If they had always intended to turn it back on a technicality, why did it take them so long to issue the ruling? They punted on this, probably as a compromise paired with the DOMA decision.

While it's certainly a victory for the folks in CA, it did nothing to help anyone in the rest of the country. A local victory is intact, but the war continues.

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 11:38 AM

8. Last night on rightwing news here in rightwing I-Dee-Ho, they were reassuring the rednecks . . .

. . . of this very thing.
This news was so big that they had 2 different news anchors reporting on it, bragging about how they had "team coverage" of the Supreme Court's latest 2 decisions.

The main news anchor acted like she was shocked while she read the Supreme Court's decisions, almost as if she was scared.
She was almost out of breath while she read the teleprompter.

Then they had some guest legal professor from the local college come in and calm them both down, and reassure them that the state's Constitution barred same-sex marriages here in the state.
So, they sighed a great sigh of relief.

Then he added that he thought that it was only a matter of time before a lawsuit was filed to challenge that state's Constitutional amendment for being unconstitutional in light of the decisions made today by the Supreme Court.

And the 2 news anchors got scared looks on their faces again.

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 11:42 AM

9. Valid point, though it will make striking the rest of DOMA down much easier.

And it will make striking down states's anti-gay-marriage and anti-gay laws much easier.

The precedent has been set in the Supreme Court that discrimination in the law against the LGBT community is unconstitutional, and the same arguments that took down Section 3 can now be used against all the other discriminatory laws.

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 11:51 AM

11. Forgive my ignorance, but why did they only focus on that part instead of the whole law?

Obviously it will come up again. Kicking the can down the road like that is a huge waste of resources.

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Response to ecstatic (Reply #11)

Thu Jun 27, 2013, 12:08 PM

20. Because that was the part that was challenged.

You can challenge the whole of a law (bad idea, like trying to kill a hydra) but it would have to be an exceptionally flawed piece of legislation.

The court tends to favor the rights of states to govern themselves. So the lawsuit didn't address that because it's questionable as to whether the SCOTUS would make such a sweeping declaration about what states can or cannot do.

Their job, supposedly, is to police bad law. They are not law makers or even law re-makers. They tell Congress how it screwed up. It's up to Congress to write a better law if they think it's that important.

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Response to TalkingDog (Reply #20)

Thu Jun 27, 2013, 12:17 PM

25. Thanks.nt

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 11:56 AM

13. it's been pretty well gutted. the major portion was the federal part

 

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Response to cali (Reply #13)

Thu Jun 27, 2013, 12:05 PM

17. tell that to those of us who live in the 37 states which don't recognize same sex marriages

which it should be noted, the feds also still won't recognize our marriages either.

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Response to dsc (Reply #17)

Thu Jun 27, 2013, 12:10 PM

21. And to those of us living in states that do not recognize Civil Unions at all because: teh geyz!

I'm talking to you North Carolina.

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Response to TalkingDog (Reply #21)

Thu Jun 27, 2013, 12:11 PM

22. NC as well

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 12:25 PM

27. is it simply a question of someone with standing challenging the other sections?

If that's the case, I think the dominoes will fall quickly. Or at least I hope so.

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Response to mike_c (Reply #27)

Thu Jun 27, 2013, 01:24 PM

30. One would certainly hope . . .

. . . that if Section 2 were challenged, it would be struck down as a violation of the full faith and credit clause as well as of the 14th Amendment. But with this Court, we can't afford to take that for granted.

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Response to markpkessinger (Original post)

Thu Jun 27, 2013, 03:00 PM

33. K&R! :(

 

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