Why hasn't their been a federal challenge to the DOMA?

[Solon]

OK, on the eve of the first legal marriages of same-sex couples in MA, I thought I would bring up a question that is puzzling to me. Why hasn't the ACLU or another civil rights organization challenged the constitutionality of the DOMA, not based on the full faith and credit clause, but instead on the 14th amendment?

Here is the text:

Amendment 14 - Citizenship rights

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Emphasis mine)

Wouldn't the DOMA as well as all those Marriage Protection Acts and Amendments to State Constitutions be ruled unconstitutional due to abridge the immunities of certain citizens? BTW: To avoid confusion, State Constitutional Amendements can be overruled by the Federal Constitution if there is a conflict. Another note: I am assuming that as many opponents of Gay marriage say, that marriage is a privilege not a right, in either case it would seem to me that it is unconstitutional to deny it in any state.

[dsc]

1. A person has to have standing to do the challenge

Until one state permits marriage no one has standing. There will be a challenge unless we fear it will lose.

[Solon]

5. I was thinking if a gay couple tried to get a license

in a state besides MA and were denied it because they were of the same sex, wouldn't that be the basis for a challenge?

[dsc]

7. only at the state level

States grant marriage licences not the feds. Thus one would have to sue their state to get the right to marry. Without any lawfully married couples there was no one to challenge the part of DOMA which denied federal benefits to same sex married couples. Now there are. Those people can sue when they are denied a federal benefit such as filing a joint return, the granting of citizenship to a spouse, etc. If one of those couples move to another state then they can challenge the other part of DOMA (which lets states deny recognition).

[MikeG]

2. You need an attempt to give full faith and credit to the marriage

in another state. Then you have a federal question.

[DRoseDARs]

3. Because there isn't any state-sanctioned gay marriages...yet.

Probably waiting for Mass. et al. to allow gay marriages so the case would be stronger. Since the SCOTUS already declined to stop Mass. from allowing gay marriages tomorrow, it's possible they'll overturn any DOMA that come their way, federal or state.

[dsc]

4. that has nothing to do with it

There is no federal issue with MA issuing marriage licences. No matter what the SCOTUS opinon of DOMA is they would stay out of this.

[DRoseDARs]

6. Well if no state has gay marriages, how can someone "have standing"?

eom

[dsc]

8. as of 19 miutes ago MA has gay marraige

so now someone does.

[DRoseDARs]

9. So where was your disagreement with me?

eom

[dsc]

10. because the issue isn't ripe for them yet

States issue marriage licences, and in point of fact, DOMA doesn't ban them from doing that. But once the licences are issued everything changes if people decide to sue. Both MA couples can sue to get federal benefits and couples from elsewhere can sue to get recognition (both denied by DOMA) but the mere issuance of those licences isn't a federal issue which is why the court didn't intervene. In short, the fact they didn't stop the licences doesn't mean they will overturn DOMA.

On edit I highly suspect that no one will file a case until after the election and only if Kerry wins. We got burnt bigtime once in 1986 on Bowers v Hardwick when we sued too soon. I don't think that mistake will happen again.

[MikeG]

12. You need an attempt to recognize the mariage in another state.

Two states = federal question.
You know - crossing state line.
Otherwise its a state issue.
Federal courts will abstain.

[foreigncorrespondent]

11. Well it is about to be challenged.

I did post about it on here, but I can't find the thread now.

But here is a link to the actual news story:

Suit will challenege Federal Gay Marriage Ban: http://www.365gay.com/newscon04/05/051104fedMarry.htm