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How Marriage Equality Could Win In The Worst Possible Way In The Supreme Court

One way or another, marriage equality is coming to the United States. A recent poll shows support for equality at 58 percent, up 21 points from just a decade ago, and a massive 81 percent of adults under 30 support treating same-sex couples just like any other. The Supreme Court should strike down the anti-gay Defense of Marriage Act (DOMA) and California’s equally anti-gay Proposition 8 because they are unconstitutional, but one way or another, marriage equality is happening. And it is happening soon.

Perhaps for this reason, two leading conservatives published columns last week advocating a way the Supreme Court could strike down DOMA while doing maximal damage to the social safety net. Five days after anti-science columnist George Will published a piece seeking to discredit the social science supporting marriage equality, Will endorsed a radical misreading of the Constitution’s Tenth Amendment that would lead to DOMA being struck down. One day later, Michael McConnell, a former federal judge and leading socially conservative law professor, made the same argument in the Wall Street Journal. Here’s McConnell’s version:

[quote][T]he court need not base its decision in Windsor on the merits of the same-sex marriage question. The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

[quote][T]he court need not base its decision in Windsor on the merits of the same-sex marriage question. The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

This is constitutional gobbledygook. McConnell and Will are both arguing that, because the Constitution does not give the federal government power over “domestic relations” it follows that DOMA exceeds Congress’ lawful powers. This is similar to the argument conservatives raised against the Affordable Care Act, and it is also compete nonsense.

...

Now, let’s be completely clear. DOMA is unconstitutional. But it is unconstitutional because the Constitution guarantees all people “the equal protection of the laws,” not because of some unworkable limit on Congress’ ability to decide who is entitled to federal benefits. The danger of Will and McConnell’s theory is that it would allow the conservative justices to accomplish Paul Ryan’s wildest dreams in a single judicial opinion, and to do so under the cover of a decision that most progressives would cheer.

(complete article at link)

by Anonymousreply 704/16/2013

[quote] But it is unconstitutional because the Constitution guarantees all people “the equal protection of the laws,”

But, is this true? More than once I have read that the equal protection clause was not used in the civil rights battle because it would not withstand legal scrutiny. The implication is that states had a right to not recognize mixed race marriages if such marriages were illegal in the state. Of course, this is the sort of thing that is mentioned in an article but never developed or supported.

by Anonymousreply 103/25/2013

As McConnell, in particular, realizes, if you begin to dismantle DOMA, gay marriage will soon come to be generally recognized in the USA, via the "full faith and credit" clause. This aspect of DOMA is not before the Supreme Court on Wednesday, but it soon will be if, as expected, SCOTUS strikes down denial of Federal benefits to legally married same-sex couples. The scaffolding of anti-gay legislation will quickly start to fall apart. McConnell favors this happening "naturally," rather than by SCOTUS fiat. His position is not as anti-gay as it may seem at first sight.

by Anonymousreply 203/25/2013

Oh geeze, R2... you're actually being an apologist for the horrible awful person known as Mitch McConnell?!? Really?!?

by Anonymousreply 303/25/2013

Is that actually *Mitch* McConnell, R3? I thought so at first, but there's an entirely separate RWA, *Michael* McConnell, who is a law professor at Stanford.

by Anonymousreply 403/25/2013

I hope this doesn't happen... I want a win, but in the BEST possible way.

by Anonymousreply 504/16/2013

urf

by Anonymousreply 604/16/2013

Any attempt to slash into our rights via a "states rights" position will only postpone the correct Constitutional decision. It would represent a Dred Scott approach to the matter, and would not determine anything except the willingness of the hypocrites on the Court to see the big picture and vote accordingly.

It is a matter of equal protection, and strongly and irrevocably connects to the underlying precepts of Common Law, whether our forefathers and foremothers could see it at the time Western legal codes were developed.

I do not doubt that the craven determination of creatures such as Thomas will never bend, but even Scalia recognizes the inevitability of the judicial-decision processes that have begun uprooting historical discrimination of gay people. And ultimately Roberts will attempt an end run to minimize what he sees as potential damage in a decision supporting our equal rights, but Kennedy could undermine his tactic by seeing that big picture and opting for a historic vote.

by Anonymousreply 704/16/2013
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