Why The Supreme Court Won't Making A Sweeping Gay Marriage Ruling For The Country
Why is this left out? I'm totally confused. If they strike down DOMA, what's the deal with marriage equality for the entire United States? What suit was brought to make the Supreme Court possibly take up the issue of (all) state bans on gay marriage?
It's Prop. 8, and DOMA, correct? Where did the possibility of the Supreme Court taking on all states come into this? Wouldn't that have to be an entirely different suit, or are people saying that the Prop. 8 ruling could go all the way to declaring all state bans illegal? I'm confused.
|by Anonymous||reply 13||03/28/2013|
I thought this analysis from the NYTimes was particularly concise.
|by Anonymous||reply 2||03/27/2013|
I agree R2 that the NY Times analysis is good. One question that they do not reach is the ramification of overturning DOMA as unconstitutional. The basis used for finding it unconstitutional could effectively spell the end to the state bans, even if the Court does not do so outright. If, for example, the Court finds that there is no rational basis for the disparate treatment of opposite gender and same-sex couples by the federal government, then it is difficult to see how the state bans could survive the same level of judicial scrutiny.
|by Anonymous||reply 3||03/27/2013|
While I doubt it will happen, I do actually wonder if they might just bite the bullet and come out with a ruling stating gay marriage as a protected right. It's not so much because I think Kennedy is excited to do that, but more because if they find it on more narrow grounds, they're just setting themselves up for a Loving v Virginia-style case (or, even worse, dozens of them) five years down the road.
Look, I'm going to be happy with progress, and I think we're going to get it, whether it's a baby step or otherwise. In ten years, one way or another, it's going to be a reality and a non-issue, and the only question is if we get there now or more slowly.
|by Anonymous||reply 4||03/27/2013|
Only the federal part of DOMA is at issue in this case, not the recognition by other states.
|by Anonymous||reply 5||03/28/2013|
BUT federal law trumps state law in issues of equal protection.
|by Anonymous||reply 6||03/28/2013|
R5, the Full Faith and Credit clause of the Constitution renders the DOMA section related to (the lack of) recognition by other states as unconstitutional. That section was not being argued before the USSC although it is clearly unconstitutional even to those with no expertise in constitutional law. The court could strike it down if it wants to do so. However, this court is cowardly so I don't expect that section to be overturned. They would rather argue this same crap again in 2-3 years instead of issuing a plain as day judgment and be done with it.
If the four liberals can persuade Kennedy and/or Roberts to their side in the Prop 8 case and they issue a broad ruling that throws out marriage bans everywhere, then that section of DOMA is dead anyway.
As nasty as Scalia and company are, the questions about federalism during the DOMA hearing should be strong enough to convince even them, given their steadfast conservative belief in states' rights. Sure, they may devise some bullshit argument for voting to uphold that section (section three?) of DOMA; but the vote really should be 9-0 to strike down that section and require the federal government to respect all marriages sanctioned by the states given how the Constitution explicitly says that regulations of marriage should be determined by the states.
|by Anonymous||reply 7||03/28/2013|
Which would mean that as long as a gay couple marries in one of the nine states where it is legal, they can LIVE in any of the others and be able to receive federal benefits like social security...?
|by Anonymous||reply 8||03/28/2013|
The line that Justice Kennedy was pursuing yesterday was that DOMA Section 3 was an unconstitutional violation of the States' right to define marriage, not that it was an unconstitutional violation of gays' right to marry. (The latter tack was taken by the four liberal Justices.) The Kennedy line, although it has real difficulties in legal theory, would eliminate a crucial thread of DOMA without, in itself, taking away any rights from the States.
But I agree that even on the narrower Kennedy line, a successful flanking attack on State restrictions would be inevitable, although obviously on different grounds -- probably through the "full faith and credit" clause.
|by Anonymous||reply 9||03/28/2013|
Please please please answer my question, someone.
|by Anonymous||reply 10||03/28/2013|
R8/R10: If the Supreme Court majority follows Kennedy's line, same-sex couples legally married in one state could live anywhere and receive federal benefits, but whether their marriage was recognized locally would depend on the law of the state in which they were living.
So other lawsuits would be required to get rid of the State requirements, unless (what seems unlikely) the SC gives us a complete victory in the Prop. 8 trial.
|by Anonymous||reply 11||03/28/2013|
That's GREAT news then. I mean, federal benefits far outweigh state, imo.
|by Anonymous||reply 12||03/28/2013|
Great flow chart at r2, except it doesn’t take into consideration vacating or not the Ninth Circuit’s decision last year against the defenders of Prop 8 (a dotted line would be in order, perhaps?). This would affect states under their jurisdiction, especially those who have since approved SSM (in other words, Washington).
|by Anonymous||reply 13||03/28/2013|