Althouse: "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state..."

July 8, 2010

"The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state..."

"... and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid."

Wrote federal district judge Joseph Tauro. In a second case, he said DOMA violates equal protection.

79 comments:

Fred4Pres said...: 10th Amendment issues are x-over sexy, gay or straight.; 7/8/10, 6:41 PM
Anonymous said...: How exciting it will be to see whether conservatives back the Tenth Amendment or their precious one-size-fits-all policy on gay people! Will we hear cries of "activist judge" from the Right?

A question for Althouse:

How seriously do you take a District Court decision about constitutional, and especially federalism, issues? I mean with regard to the likelihood of its being overturned on appeal.; 7/8/10, 6:47 PM
Eric said...: Tenth amendment? What? They've been treating the tenth like it was written in invisible ink for 150 years now. Talk about selective constitutional enforcement!; 7/8/10, 6:49 PM
David said...: This comment has been removed by the author.; 7/8/10, 6:49 PM
David said...: From District Court web site, District of Massachusetts:

JOSEPH L. TAURO has served as a Judge of the United States District Court since 1972. He was elevated to the position of Chief Judge in January 1992 and served in that capacity until January 1999. His public service prior to being appointed to the bench included that as United States Attorney for Massachusetts, Chief Legal Counsel to the Governor of Massachusetts, and two years in the Army as a Nike Guided Missile Officer.

A graduate of Brown University and of the Cornell Law School, Judge Tauro practiced law for a number of years with his own firm, and is admitted to the Bar Associations of Massachusetts and the District of Columbia. He was a Visiting Professor of Law at the Boston University School of Law, and is a trustee of Brown University. For many years, Judge Tauro served as a trustee of The Children’s Hospital Medical Center in Boston, as well as of the Massachusetts General Hospital. He has been a member of the Judicial Conference of the United States, and has served on the Judicial Conference Committees on Codes of Conduct, as well as The Jury System.

Judge Tauro has received honorary degrees from Brown University, Boston University, Northeastern University, Suffolk University, The University of Massachusetts, and the New England School of Law. He has also received the Cornell Law School Distinguished Alumnus Award, the Brown University Brown Bear Award, the Massachusetts Bar Association Hennessey Leadership Award, and the Boston Bar Association Citation of Judicial Excellence.

Judge Tauro’s family includes his wife, three children and six grandchildren.

Personally, I blame Richard Nixon (who appointed him.); 7/8/10, 6:54 PM
Peter Hoh said...: Gee, professor, could you break it down for those of us who didn't go to law school?

This isn't a big deal until it reaches a higher court, correct?; 7/8/10, 6:56 PM
Skyler said...: It's odd logic that a federal law allowing the states to be free to choose their own path is being cited as a violation of the Tenth Amendment which says that the federal government is not allowed to dictate to the states except where they are specifically given that power.; 7/8/10, 7:07 PM
David said...: Maybe this guy could get the Arizona immigration law case. That would be fun.; 7/8/10, 7:10 PM
knox said...: Maybe this guy could get the Arizona immigration law case. That would be fun.

That was my first thought. Dare we expect consistency?

With that said, I am against DOMA. Not the role of the Fed. to have a say in such matters.; 7/8/10, 7:18 PM
David said...: This comment has been removed by the author.; 7/8/10, 7:19 PM
David said...: This comment has been removed by the author.; 7/8/10, 7:19 PM
David said...: This comment has been removed by the author.; 7/8/10, 7:20 PM
David said...: This comment has been removed by the author.; 7/8/10, 7:20 PM
Anonymous said...: So I guess that Prop-8 will stand now because it is a state initiated law.; 7/8/10, 7:22 PM
David said...: This comment has been removed by the author.; 7/8/10, 7:22 PM
David said...: This comment has been removed by the author.; 7/8/10, 7:24 PM
David said...: This comment has been removed by the author.; 7/8/10, 7:25 PM
Anonymous said...: Prop-8 ruling in 30 minues, Drudge reports.

Maybe we'll have a one two punch from federal district courts today.

1. Law on marriage is within the purview of the state under the 10th amendment.

2. But a state better not define marriage as being one man and one woman, or it is unconstitutional under Section 1 of the 14th amendment.; 7/8/10, 7:30 PM
David said...: My apologies--profusely--for the multiple, repatative comments above. Blogger kept telling me that my comment had not been posted, even though obviously it had.

Then I got error messages when I tried to delete the comments.

Sorry, sorry, sorry.; 7/8/10, 7:30 PM
Peter Hoh said...: Damn, if there was only some way to learn about the judge's dad.; 7/8/10, 7:31 PM
Anonymous said...: How many gay golfers does it take to hit a hole in one?; 7/8/10, 7:36 PM
chickelit said...: Tauro means bull but not the papal kind.; 7/8/10, 7:38 PM
David said...: Maxima Culpa!!!; 7/8/10, 7:43 PM
sunsong said...: So, one way or another, this goes to the Supreme Court.; 7/8/10, 7:49 PM
dbp said...: I can't help but think Clinton's DOMA and Bush's McCain/Feingold are mirror images of each other.

Both presidents signed them for purely political reasons and hoped/believed the laws would be struck-down by the courts.

They could go to the voters with, "Hey, I tried. Sorry".; 7/8/10, 7:54 PM
I'm Full of Soup said...: Who cares about this- where will LaBron James sign?; 7/8/10, 7:55 PM
Synova said...: Wait... aren't those sort of contrary?

Or am I misunderstanding that, on the one hand, the problem is that it doesn't apply to everyone, and the other is that it does?

I'm not trying to defend DOMA or anything. Also, it seems to me, that things like DOMA is what you get when you insist that people are elected to DO things. Too many political gestures end up as laws.; 7/8/10, 7:58 PM
Unknown said...: Always thought this should be shot down. Now states can vote for or against same sex marriage and have it stand.

Dead Julius said...

How exciting it will be to see whether conservatives back the Tenth Amendment or their precious one-size-fits-all policy on gay people! Will we hear cries of "activist judge" from the Right?

No idea what he's talking about, but most Conservatives seem to want the people, not interventionist courts, to have the final say. Julie's just mouthing the Demos' "We're for gay rights as long as they vote for us" propaganda.

I'd like to see if any of the Honorables currently in the majority would be willing to go to war to defend Iranian homosexuals.

PS David, if you login again and hit the trash can just below those redundant posts, you will delete them and save a little space.; 7/8/10, 8:06 PM
Anonymous said...: Who cares about this- where will LaBron James sign?

LeBron James.

Jesus, you've given him the feminine article.; 7/8/10, 8:06 PM
I'm Full of Soup said...: Synova:

I'd like to vote for someone who promises to get rid of many of the redundant or useless laws and regulations we have.

I heard Sam Brownback, runnning for gov of Kansas, has promised to do that.; 7/8/10, 8:06 PM
Scott said...: Yay! I could KISS Judge Tauro!; 7/8/10, 8:32 PM
Revenant said...: As Obama's Department of Justice could explain, states have no business say who is or isn't married because it creates more work for the IRS. So any state recognition of marriage is as unconstitutional as that darned Arizona immigration enforcement law.; 7/8/10, 8:53 PM
David said...: trying to delete; 7/8/10, 9:02 PM
Revenant said...: This comment has been removed by the author.; 7/8/10, 9:06 PM
David said...: Deleted!!! Bye-bye Papa Truro.

Thanks to edutcher for the tip.; 7/8/10, 9:09 PM
Skyler said...: I don't agree with your analysis, reven. DOMA doesn't strip any state's powers. It grants them more powers by allowing states to decide not to recognize other states' improper laws regarding what they call marriage.

The tenth amendment claim also fails for rights left to the people because states have always been allowed to define marriage eligibility. Individuals have never been free to define marriage as it is recognized by the state.

It is a very poor opinion based on very bad logic. But that appears to be the history of the legal system for at least a thousand years of common law.; 7/8/10, 9:15 PM
Dust Bunny Queen said...: So then, how does this ruling apply to things like

abortion

forced purchasing of medical insurance

federal regulation of insurance pricing and coverges, instead of states regulating for themselves

gun control laws

states being able to utilize the lands within their boundaries as they see fit

gasoline and carbon emissions standards from state to state.

and lots of other state's rights issues

??; 7/8/10, 9:28 PM
Bob Ellison said...: Can we step away from the lawyerly analysis?

edutcher is on the trail of the case: "Now states can vote for or against same sex marriage and have it stand."

But the issue for the same-sex marriage movement has never been about same-sex marriage. They can have civil unions or contracts drawn up or whatever the hell they want. The hospitals may not let them come to the death beds, true, and that's sad, but that's not really a big, overbearing issue. It's a poster-child issue.

Let's be honest. Gay marriage is about gay marriage, because those who demand it want to shove it up the noses of non-gay/non-lesbian people that this is happening in the world. If that weren't the case, they'd be perfectly happy with "civil unions" and the like.

It must be "marriage". Anything less is a failure to stick it up the collective nose of the heterosexual majority.; 7/8/10, 9:28 PM
Dust Bunny Queen said...: BTW is anyone else as sick of this Chinese spam as I am?

They seem to be able to master the word verification system anyway.; 7/8/10, 9:32 PM
Anonymous said...: This comment has been removed by the author.; 7/8/10, 9:56 PM
Anonymous said...: "They seem to be able to master the word verification system anyway."

I'm thinking that they are using cheap-labor brute force method.

Regarding the DOMA ruling, and depending on how the prop-8 ruling comes out, it may be that the federal district courts hand conservatives another rallying cry right before the national elections.; 7/8/10, 10:00 PM
Unknown said...: Dust Bunny Queen said...

So then, how does this ruling apply to things like

abortion

Back to the states - originally their jurisdiction.

forced purchasing of medical insurance

Probably violates all kinds of federal, as well as state, protections.

federal regulation of insurance pricing and coverges, instead of states regulating for themselves

Probably a toss up. Don't know we had anything like this pre-1787, but states had plenty of leeway in the 19th century. Keep interstate commerce in mind.

gun control laws

Back to the states - originally their jurisdiction, except for interstate commerce.

states being able to utilize the lands within their boundaries as they see fit

Back to the states - originally their jurisdiction

gasoline and carbon emissions standards from state to state.

Probably a toss up. Don't know we had anything like this pre-1787.

and lots of other state's rights issues

??

Well, there's always secession ;); 7/8/10, 10:01 PM
Anonymous said...: The Tenth Amendment? Really.

I am holding my breath waiting for its application against government across every sphere of life. I will die soon.; 7/8/10, 10:04 PM
William said...: This, like the tax on tanning beds, will not affect my life in any substantial way. I don't have a strong opinion either way. The gays seem to have the most velocity and will probably carry the day. When gays are free to marry, the institution of marriage will not be subverted, but gays will not find true, meaningful love in any greater amount than they do today......I have read that in those European countries where gay marriages are legal only a very small proportion of gays choose to marry. Gays want to have the choice, but they do not wish to exercise it.....The judge describes opposition to gay marriage an an "irrational prejudice". That seems to me to be extreme and wrong.; 7/8/10, 10:44 PM
John Stodder said...: 9:33 p.m. has a dangerous link and should be removed. I just moused over it, didn't click it. But someone might and get a virus.; 7/8/10, 10:48 PM
NotWhoIUsedtoBe said...: Which should mean that a federal court decision in favor of same sex marriage can't touch the states.

Right? If you believe that I've got something to sell you.

WOW GOLD WOW GOLD WOW GOLD

Oh, sorry, I outsourced my comment.

And of course it's about marriage. This is a civil rights issue. I wouldn't want to have second class rights or not be able to do what everyone else could do.

Civil unions reek of separate but equal. Don't they?

This isn't a large part of the population, maybe a few percent. Unlike polygamy and other strangeness the social cost of allowing it is pretty small.

The ship has sailed on preserving heterosexual marriage. We have a divorce rate and an illegitimacy rate... that I don't even want to think about.

One can make an argument that allowing same sex marriage is inclusive, has a low cost, and forestalls a court decision that would begin a slippery slope to polygamy et al. It seems to me that that would be worse.

We are going to have a liberal supreme court. Maybe we should work around that.; 7/8/10, 10:55 PM
Ralph L said...: What about the Full Faith and Credit clause? Isn't that the most explicit nullifier?; 7/8/10, 10:56 PM
Anonymous said...: I guess I have to say it:

1. There's nothing that prevents gay people from getting married.

2. States do have a legitimate interest in restricting marriage to heterosexual monogamy if they so choose, to the extent that they have an interest in marriage.

3. Gayness is not race or bastardness or nationality or religion or gender.; 7/8/10, 11:13 PM
Revenant said...: But the issue for the same-sex marriage movement has never been about same-sex marriage. They can have civil unions or contracts drawn up or whatever the hell they want.

Well, no. Many (most?) states don't have civil unions, and neither does the federal government.; 7/8/10, 11:14 PM
Skyler said...: We are going to have a liberal supreme court. Maybe we should work around that.

What makes you think that?; 7/8/10, 11:15 PM
Anonymous said...: Rev -- It's cute that you are allowing the state to determine whether you are married or not. Did you finally give up libertarianism and have you now gone over the edge?

Where is it illegal for gays to be married or have civil unions? In the United States I mean, not some 'Stan.; 7/8/10, 11:16 PM
Revenant said...: Which should mean that a federal court decision in favor of same sex marriage can't touch the states.

Not necessarily. Congress has limited powers, but the courts consider their power to be basically limitless.; 7/8/10, 11:17 PM
Revenant said...: Rev -- It's cute that you are allowing the state to determine whether you are married or not. Did you finally give up libertarianism and have you now gone over the edge?

I just pointed out that most states don't have civil unions. The "civil" in "civil union" refers to the fact that it is recognized by the government. So, yes, I "allow" the state to determine if civil unions exist just like I "allow" them to determine if citizenship exists.

I did not complain that the unions aren't available, nor did I complain that gay marriage isn't recognized. Obviously gay people can get married if they don't care about government recognition; I've pointed that out here countless times. But saying "they can just have civil unions" is flatly incorrect.

And the notion that the driving force behind the gay marriage movement is a desire to "shove it up the noses of non-gay/non-lesbian people" is so delusional it would be worthy of Andrew Sullivan if it was on the other side of the argument. :); 7/8/10, 11:24 PM
Milwaukie guy said...: When courts can find gay marriage in constitutional equal rights issues it is a matter of time before polygamy will be legalized.

I wonder how swingers will be accommodated. I'll bet there's a debauchery gene.

wv: adoging: I was only ten when I realized I was different, I enjoyed adoging, I was born to swing.; 7/8/10, 11:45 PM
traditionalguy said...: I understand that the DOMA lets states other than Massachusetts refuse recognition of two men or two women marriages that are now, and will remain, valid marriages in Massachusetts.This will be a test case. The judge may be correct.; 7/8/10, 11:56 PM
MadisonMan said...: Judge Tauro also ruled against the US in a case of a malfunctioning ocean weather buoy, if I'm not misremembering things, that was claimed to have lead to the death of several fishermen. That was back in the mid-80s. It surprises me that he is still around.

I don't know if that ruling was overturned, but it was unusual for the US Weather Service to be held liable essentially for a bad forecast (in reality, it was for not maintaining the weather buoy that provided key data).; 7/9/10, 12:13 AM
Palladian said...: No one should get married. To anyone.

But if they insist, whether they're two men, a man and a woman or two women, it's not the government's business to affirm or deny the intended union. Marriage is a religious and/or romantic ceremonial and not something the State should be involved in, whatever the configuration of the parties.

Those of you who see marriage as some age-old tradition, why do you require the sanction of the secular State for your ceremony? And those of you who demand equal rights, why do you grant the State the power to contravene your personal religious/romantic rituals?

All the important things are contractual, and should be treated as a contractual agreement between parties, regardless of the sex of the participants. What other civil contract restricts parties based on sex?

Marriage is not mentioned in the Constitution of the United States. Smart men, those Framers.; 7/9/10, 12:30 AM
Anonymous said...: Marriage is a religious and/or romantic ceremonial and not something the State should be involved in, whatever the configuration of the parties.

While I agree with you 98.2 percent, let me discuss the other 1.8 percent.

In my opinion, the state has the power to tax whatever it wants. It should have the power to record marriages, like births and deaths. These things are important.

Divorce is the big deal, really. It's not so much the beginning of this contract as the end. Because children tend to be involved in marriage (and the state is right to encourage married people having children), the state has an obligation to those children to make sure that those children are not unfairly burdened when marriage contracts end.

There's also death. Ultimately, in fact, the state's interest in marriage comes down to the tranquil, orderly transfer of property over generations.

Seven Machos out.; 7/9/10, 12:46 AM
Anonymous said...: I was born to swing.

Me, too, dude. Every man was. Which is why monogamy is so important, to reign in that impulse. Monogamy is also important so we don't have three or four angry young males in our society every generation, being angry having lots of pent-up energy and looking for ways to vent to that anger and that energy.

Also, I have on record in these threads gay men explaining to me what I always expected to be true: that gay men have the best opportunity to live the dream of every man -- having many, many sexual partners (but not, sadly, without the disease risks that come with any sexual promiscuity).; 7/9/10, 12:52 AM
Ralph L said...: the driving force behind the gay marriage movement is a desire to "shove it up the noses of non-gay/non-lesbian people" is so delusional

Tell that to the Anglican "Communion", what's left of it.; 7/9/10, 4:06 AM
Mick said...: Leave it to lawyers to torture the constitution, and impart meaning that isn't there to make it unrecognizeable to the common man which it was meant for. When everything is relative then there is no truth.
Lost in the comments here is the fact that this case has nothing to to with 5th Amendment "due process", the clause abused in such cases as Phyler v. Doe, which gave ILLEGAL immigrant's children the right to the same education as legal citizens.
Due process has to due with equal treatment in criminal cases, it has nothing to do w/ "civil rights" as the Left sees them, that "since each person's reality is different, then their liberty and pursuit of happiness is impaired if that reality is not recognized". Now it has become a shrill "civil rights" cause celebre.
Marraige is an institution recognized by the governement because it benefits society by setting a legal framework for the propogation of the citizenry. Gay marraige does not serve this purpose, at least not yet. Gays can have "contractual" marraiges all they want, they just shouldn't be recognized by the Federal government, since by definition and timemworn purpose, the only reason the state recognizes marraige is to advance the citizenry. There has to be a definition of "marraige" that relates to it's purpose. Even Polygamy supports the purpose of the marraige institution.
The Fourth Amendment should be the reason for uniformity, as a minority of states would impose their "marraige relativity" on states that don't wish to engage such nonsense.
Using the 10th Amendment logic will result in 5-7 states imposing their definition and legal framework of marraige on the others.; 7/9/10, 5:32 AM
Unknown said...: Palladian said...

No one should get married. To anyone.

But if they insist, whether they're two men, a man and a woman or two women, it's not the government's business to affirm or deny the intended union. Marriage is a religious and/or romantic ceremonial and not something the State should be involved in, whatever the configuration of the parties.

Those of you who see marriage as some age-old tradition, why do you require the sanction of the secular State for your ceremony? And those of you who demand equal rights, why do you grant the State the power to contravene your personal religious/romantic rituals?

All the important things are contractual, and should be treated as a contractual agreement between parties, regardless of the sex of the participants. What other civil contract restricts parties based on sex?

Marriage is not mentioned in the Constitution of the United States. Smart men, those Framers.

What nonsense. The Bill of Rights allows states to define those things that they had previously defined, including marriage. That's part of what the suit is about.

More to the point, marriage has been a legal construct for centuries, protecting the rights of widows and orphans and trying to protect public health (something which organized homosexuals have been trying to undermine for the last quarter century). The states have every right to define marriage as they see fit (some will do it to Palladian's liking, no doubt).; 7/9/10, 5:54 AM
Anonymous said...: Homosexual marriage is a civil rights issue?

If it is, it's the very last civil rights issue for a preposterously spoiled, incredibly rich society that doesn't have much else to worry about.

Gay men are drama queens. Gay marriage is a bauble they want, and creating all sorts of theatrical drama over it appeals to their thespian instincts.

Once this is over, the drama queens will want something else.

I continue to be amazed that the demand for gay marriage comes on the heels of the AIDS epidemic, which, of course, was caused by the behavior of gay men. To notice this reality is to be labeled a bigot by the drama queens.

We've got a lot more important things to worry about than this nonsense. But, it gives knuckleheads like Palladian the chance to mount the stage and bellow out the tragic soliloquy:

"I'm just like a black men in the Jim Crow south. I, too, am a tragic victim of the genocidal bigots!"

And, for the amount of time he's on stage and pretending, the idiot believes it.

Oh, God, Palladian! It's so tragic. I guess we should organize freedom marches to the hair salons of America.

Have fun, Palladian.; 7/9/10, 6:43 AM
Opus One Media said...: Bob Ellison said...
"Let's be honest. Gay marriage is about gay marriage, because those who demand it want to shove it up the noses of non-gay/non-lesbian people that this is happening in the world. If that weren't the case, they'd be perfectly happy with "civil unions" and the like."

I'm sure if you read the decision you would understand that your comment isn't really on point at all. In fact, it is offensive at best and bigoted at worse.

The entire DOMA thing was trumped up much akin to O'Reilly's yearly "war on Christmas". It was and is a blatant politic act of war on a boggyman that doesn't exist.

It might just boil down to the simple fact that the states and local jurisdictions with the states issue marriage licenses (depending on the state). There is no Federal Marriage License and requirements, waiting periods, etc. vary from state to state.

If you think about it, and some do, a marriage license granted by the state is as much of you can be married as it is "here are the rules". With the permission comes the stipulations.

A marriage license granted by a state means simple that permission is extended and you abide by the rules that surround it and the act of marriage itself.

DOMA takes away one part of the state's interest...that of the rules that govern marriage within the state. That was the distinction without a difference the judge was getting at...and that is what the 10th amendment so clearly states.; 7/9/10, 7:05 AM
Moose said...: If we dumb down the definition of marriage (I love him/her/it/them)AND you remove the rule of law controlling the legal responsibilities of marriage, then you will wind up creating an even more litigious society.

With marriage comes an assumption in law of rights and responsibilities for each other, children, property, access and so forth. If, as Palladian says you should divorce marriage from the law, then you'll need a whole new system of laws and contractual agreements for couples wishing to marry.

If you liberalize legal marriage so that anyone can marry anyone, then you will have created a legal blunt instrument capable of great institutional damage to the family unit.

One thing I will agree on with shouting thomas is that gay marriage is an idea of a frivolous spoiled generation..; 7/9/10, 7:14 AM
Opus One Media said...: @shouting thomas

wowser. that's about a zillion urban myths in a row.

would you mind terribly going back to your prior post and correct some of the stuff that must be either typos or just an abundance of bad research and conclusions? it would be helpful to us all as we rely on your normally sane voice and reasoning very much.

thank you. you've been a big help and your views are, as always, keenly anticipated and great grist for the grinding wheel.

many thanks again for correcting your errors...takes a big man to admit blunders and, by gosh, you just might be that big man.; 7/9/10, 7:19 AM
Anonymous said...: 7 Machos' 12:46 response to Pallidian is completely correct. The idea of marriage as a completely private contractual agreement is a great liberatarian ideal, but it rests on the presumption that marriages never end (or never end badly) and never involve people outside of the contract. I watch marital disputes every day in court, and they are ugly as hell. The state needs a uniform set of provisions to deal with it, and that set is marital law.

Now, the question becomes, as "living together" for very extended periods of time continues to become more prevailant, what that will mean for the state as they try to untangle those webs. I don't know the answer to that, but I'm sure that nobody's going to like the results; 7/9/10, 7:20 AM
Anonymous said...: Thanks for that opportunity, HD.

I formed my view of gay men by living among them for 40 years.

Before that, I actually subscribed to your views.

I will endeavor to please you by working diligently to replace my views with your trendy ideology.

Never allow direct personal experience to interfere with ideology.; 7/9/10, 7:33 AM
Hagar said...: The Supremes need to declare that "marriage" is a religious rite that is of no interest to the state and completely independent of it, and everyone (or two's) that want to establish a "civil union" for tax purposes, etc., must do so at a state authorized agency, such as the county clerk's office, and be recorded there in accordance with state law.; 7/9/10, 8:23 AM
Anonymous said...: The Supremes need to declare that "marriage" is a religious rite that is of no interest to the state and completely independent of it

Except that many people who are not religious get married and the state clearly does have an interest in marriage, as it is the bedrock corporate structure for human beings, their progeny, and their property.

People would balk at the idea of not being able to enter marriage in a religion. Much of this marriage debate ism in fact, purely semantic. Like probate law, the law concerning marriage basically seeks to mimic what reasonable people would do and are doing, anyway.; 7/9/10, 8:30 AM
Anonymous said...: "The Supremes need to declare that "marriage" is a religious rite that is of no interest to the state and completely independent of it, and everyone (or two's) that want to establish a "civil union" for tax purposes, etc., must do so at a state authorized agency, such as the county clerk's office, and be recorded there in accordance with state law."

My ancestors got the stuffing beat out of them because the Supreme Court refused to place marriage strictly into the religious realm.

See Reynolds v. U.S.

Ironic, isn't it, that in the popular conventional wisdom Mormons used to be America's profligate dissolute rabble, now they are the hateful inhibited prudes.

And who is it that has changed in the intervening time? Isn't the Mormons.; 7/9/10, 8:43 AM
Salamandyr said...: I'm guessing this is going to go to the Federal Appeals Court, and whatever decision they make in reference to DOMA, it will be marginally less stupid than this judges. Whether the Supreme Court decides to take it after that probably depends on how not-stupid it is.

Personally, I don't see gay marriage as being constitutionally required under equal protection. Marriage, in its civil state, is essentially contract law. It's uncontroversial that the government can create requirements and regulations for entry into any kind of contract it creates; and that it can give favorable status to behaviors that it has a state interest in promoting. Using the same logic as we do to grant Equal Protection status to gay marriage, we might argue...

that VA clinics must treat non-veterans,

LLC's, partnerships, and public corporations all have the same protections and requirements

"Enterprise Zones" in cities, areas given favorable tax status in order to encourage businesses to build there are either illegal, or similar tax status must be given to any business, regardless of where they locate.

Any tax law that fundamentally that encourages certain behavior would have to be applied regardless of that behavior.

And any number of other areas where the government has chosen to encourage personal behavior via positive reinforcement.

Now, whether extending marriage benefits to gays is a good idea or not is a completely different story. I'm perfectly willing to entertain the argument that it is. But gay marriage as a Right, I just don't see.; 7/9/10, 8:53 AM
Brian said...: OK, at risk of hijacking the thread, but since we're talking about "equal protection under the law" in general:

A story in the Washington Post brings up the "tanning bed" tax as possibly being "reverse racism" since it's a tax that only the fair-skinned are going to pay. Prof. Randall Kennedy at Harvard Law says "there is no constitutional problem at all, because a plaintiff would have to show that the government intended to disadvantage a particular group, not simply that the group is disadvantaged in effect."

Forgive me if I'm wrong, but when the government gives preference to one ethnic group over another in any other endeavor, such as internships for minority students, scholarships, etc., is that not "intent" as well as "effect?"

Or is the professor's statement incomplete? It's OK if the government does it to address a social justice issue?

For private interests, isn't it usually enough to prove "effect" without "intent?"; 7/9/10, 10:00 AM
Opus One Media said...: Marriage a religious rite?

The honor of performing marriages has been extended by the state to ministers, priests, and other qualified (another can of worms) persons. It was not always thus.

It would do some of you here a great deal of good to read some articles on the "history or marriage". Might put a differet view in the minds of the DOMA dummys.; 7/9/10, 10:02 AM
Opus One Media said...: This comment has been removed by the author.; 7/9/10, 10:02 AM
Phil 314 said...: So does this ruling make Judge Tauro a

sexually activist judge; 7/9/10, 10:33 AM
Methadras said...: How does Dolma encroach on the province of the state. It's a delicious treat from the mediteranian. What has Dolma ever done to this judge? Did he get a bad grape leaf?

Uh, what? DoMA? Oh uh, nevermind...; 7/9/10, 12:15 PM
sunsong said...: What makes the case a bit different from some of the state cases are (1) the Obama Justice Department’s abandonment of the classic rationales for limiting marriage to its traditional understanding, and (2) the peculiar federal dimension involved.
Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23.
Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones. Op. at 23–24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996. But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I’m guessing was particular glee, Judge Tauro cites Justice Scalia’s dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24–25. Justice Scalia’s dissent in Lawrence is effectively the first draft of a brief for SSM.
The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it’s not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25–26.
The third rationale — promoting traditional morality — is insufficient after Lawrence. Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia’s dissent.
And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26–27.
That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question. Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it. Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding. Op. at 28–35.
A related justification, said the DOJ, was Congress’ interest in moving incrementally on the issue. The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35–37.

volokh.com; 7/9/10, 1:56 PM
Revenant said...: Tell that to the Anglican "Communion", what's left of it.

And what are the rulings you think the Anglican Communion has made because they wanted to "shove it up the noses" of their congregation? Note that I'm not asking which rulings they have forced upon the Communion's membership. I'm asking which rulings were motivated by a desire to force things on the membership.

There aren't any. The leadership is much more left/liberal than the membership, but the leadership has done what it has done (gay pastors, female bishops, etc) because it thought it was doing the morally correct thing. That their decisions infuriated many Anglicans and Episcopalians was a side effect, not the intended effect.; 7/9/10, 2:20 PM

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