The Gay Thread

[JWBear]

Originally Posted by Prudence

I didn't read the article closely, but didn't the MA court say that DOMA infringed on the states' rights to define marriage? That seems like it could be a problem later when one might, say, want to argue that OK has to accept out-of-state gay marriages under the full faith and credit clause.

They'd come up against Loving v Virginia.

[Alex]

And it should be noted that neither ruling struck down the "Full Faith & Credit" exemption part of DOMA. So even if these stand there's still no obligation for Oklahoma to recognize Massachusetts' marriages.

[JWBear]

Originally Posted by Alex

And it should be noted that neither ruling struck down the "Full Faith & Credit" exemption part of DOMA. So even if these stand there's still no obligation for Oklahoma to recognize Massachusetts' marriages.

That's because it wasn't part of the original complaint. If challenged in court, there is no way it can stand.

[Chernabog]

Originally Posted by Alex

And it should be noted that neither ruling struck down the "Full Faith & Credit" exemption part of DOMA. So even if these stand there's still no obligation for Oklahoma to recognize Massachusetts' marriages.

I'm pretty sure that if DOMA is struck down on ANY basis, then the marriages would have to be recognized on full faith & credit (though it may take another lawsuit to hammer the nail into the coffin).

In other words, if DOMA is found unconstitutional, I don't think it's a piecemail sort of thing (like a contract). In most contracts, for instance, there is a clause which states something to the effect that if one of the aforementioned clauses is found unenforceable, illegal or invalid, then the rest of the clauses can still be enforced.

A statute like DOMA on the other hand is either constitutionally valid or it isn't. It isn't going to remain on the books simply because there hasn't been a lawsuit testing its constitutional validity in every situation or under every theory out there.

[Alex]

Originally Posted by Chernabog

In other words, if DOMA is found unconstitutional, I don't think it's a piecemail sort of thing (like a contract). In most contracts, for instance, there is a clause which states something to the effect that if one of the aforementioned clauses is found unenforceable, illegal or invalid, then the rest of the clauses can still be enforced.

I would be glad to be wrong but I every analysis I've seen has been clear that these rulings have no impact on the Full Faith and Credit stuff in Part II of the law.

If bills were all or nothing then that would mean if any single part of an omnibus budget or one section of the healthcare reform bill would invalidate the entire thing.

[Chernabog]

Originally Posted by Alex

I would be glad to be wrong but I every analysis I've seen has been clear that these rulings have no impact on the Full Faith and Credit stuff in Part II of the law.

If bills were all or nothing then that would mean if any single part of an omnibus budget or one section of the healthcare reform bill would invalidate the entire thing.

I didn't mean that every bill was an "all or nothing" proposition, and I apologize because the contract example was a really bad analogy in retrospect. What I meant was, if a provision is found unconstitutional for ANY reason, then it is unconstitutional period. It doesn't matter if it's constitutional in certain situations, or if the unconstitutionality in a particular situation wasn't argued in the lawsuit overturning it, etc. I thought someone was arguing that the statute would remain on the books because a mere phrase in the statute had not been challenged, or it hadn't been challenged on a particular basis (namely, full faith and credit).

However, on that note I have to eat some crow here because I violated a principal rule of lawyering in my previous post, namely RTDS, which stands for "Read The Damn Statute!" I had it in my mind that DOMA was codified as one statute but it is not. The full faith and credit part (28 U.S.C. section 1738C) is a completely different code section than what was challenged (1 U.S.C. section 7). It doesn't matter than both were enacted into law under the same bill. What was challenged was not "DOMA" technically but "1 U.S.C. section 7" which would not have an effect on a completely separate statute. So the rulings will have limited effect, in the way DOMA was codified, how it is set up, etc. -- the "parts" are not interdependent as I assumed they were. The rulings themselves speak in terms of DOMA part 3. However, it always boils down to RTDS, which I should have done in the first place.

Hey, we can always move to Canada, Sweden, Norway, Holland, Belgium, Spain, Portugal, Iceland, or South Africa to get married. They are all lovely places, you know, and marriage is much less confusing there.

I hope that makes more sense.

[Alex]

Am reading one of the decisions now (a readable 39 pager). The judge used a rational basis review in reaching his conclusions (a relatively deferrent standard). I'm guessing most people here will agree with it but it is interesting to read the judge dismissing each argument offered for why the federal government has a valid purpose is withholding marriage recognition from those in states that allow gay marriage. (Mostly typing this out to force myself to read carefully and think about what it says.)

Rational Goal - Encourage responsible procreation
a) Expert consensus is that being raised by gay parents is not a harm.
b) DOMA doesn't actually do anything to encourage responsible procreation, just withholds benefits from some children.
c) Procreation has never been an explicit part of marriage qualifications (he quotes Scalia here).

Rational Goal - Defending and nurturing heterosexual marriage
a) DOMA can't encourage heterosexual marriage among those it deprives of benefits because they are already legally married.
b) Denying benefits to gay marriages does nothing to strengthen heterosexual marriages.
c) To the extent that it makes heterosexual more valuable or desirable it does so only by punishing people evercising a legal prerogative and it is fundamentally unconstitutional to legislatively punish a politically unpopular group.
d) Defense of traditional values of morality is not sufficient. Quotes Lawrence here with "the fact that the governing majority in a State has traditionally viewed a particular practics as immoral is not a sufficient reason for upholding a law..."

Rational Goal - Preservation of scarce federal resources.
Rejected with citation to Pyler v. Doe (1971) that "a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources." Since no reason is given for this method of saving money beyond serving as a way of expressing disapproval of same-sex marriage there's no argument in support.

Also rejected because DOMA's sweep is so broad in impacting more than 1400 federal programs that rely on this definition of marriage that many have nothing to do with "scarce" federal resources (whether that be money or effort) such as the Family and Medical Leave Act which allows 12 weeks of unpaid leave to care for a sick spouse.

Rational Goal - There's a federal interest in maintaining a status quo while the states work it out.
Everybody concedes it is entirely a state right to define the qualifications of marriage. There has never been a nationally uniform definition of marriage and federal laws an regulations have always simply deferred to state definitions without issue. Gay marriage did not create any new hurdle. The argument that gay marriage is different in scale if not type from other historical changes is rejected as being no more signficant or contentious than the fall of anti-miscegination laws were.

Further, the government misstates its case in stating it has an interest in maintaining the status quo for federal law as of 1996, before the first suggestion of same sex marriage came up. The judge notes that the 1996 status quo was complete deference to states in defining marital requirements and thus DOMA, rather than maintaining a status quo is itself the departure from the status quo. Further, DOMA does not actually create a federal standard for marriage, it just eliminates one source of state-by-state variation. Example given is a 13-year-old girl marrying a 14-year-old boy which is legally sanctioned only in New Hamphshire but still recognized as valid by federal law.

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At least in this ruling, since the Part 3 of DOMA is rejected on a rational argument basis it seems to me less like a double edged sword than it if had failed under strict scrutiny.

[Ghoulish Delight]

NBC allows gay couples to compete for on-air wedding ceremony

[Strangler Lewis]

Apart from whatever full faith and credit limitations are in DOMA, there is full faith and credit case law about when states need not accord full faith and credit. Now, if the DOMA provision had been challenged and struck down, it's difficult to imagine what other interests individual states might advance, but the Supreme Court (if it gets this far) could still allow each state to have its say on the matter.

[Alex]

Yep, all good.