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SCOTUS and us: this is going to be huge.

(1) what day do you predict the rulings will come down?

(2) how will they decide?

(I am optimistic they will decide in our favor on Prop 8, but pessimistic that they will punt to the states on DOMA...)

Yes, I was naively hoping for a nationwide, federal law change regarding federal marriage benefits.

by biting my nailsreply 9706/17/2013

It'll be at the end of the session. Probably either June 26 or 27. Right before SF and New York Pride.

As someone said in another thread, this will either be the best Pride ever or the worst.

US vs Windsor (the DOMA case) was never about establishing a right to gay marriage, it was about the unconstitutionality of the Federal Government refusing to give full faith and credit to the states where gay marriage is legal.

by biting my nailsreply 106/10/2013

Good point, but they know full well that as soon as they grant that right (if they grant that right) to americans IN the states where gay marriage is legal, there will be many lawsuits to come and eventually it will have to be ruled at the federal level...


by biting my nailsreply 206/10/2013

I know we're all focused here on the gay rights issues... but the Supreme Court is also poised to decimate civil rights in other ways... voting rights and such.

by biting my nailsreply 306/10/2013

Of course they do, R2.

by biting my nailsreply 406/10/2013

So since we agree they do, r4, why would they not seize the moment to do the "right thing" and hasten that day (and avoid all those inevitable lawsuits clogging up the courts for years)?

by biting my nailsreply 506/10/2013

Yeah, I think the Voting Rights Act is widely expected to be gutted, which is horrifying.

by biting my nailsreply 606/10/2013

R5, because they are cowards.

by biting my nailsreply 706/10/2013

well okay then, r4. :(

by biting my nailsreply 806/10/2013

[quote]Yeah, I think the Voting Rights Act is widely expected to be gutted, which is horrifying.

This is an understatement.

by biting my nailsreply 906/10/2013

I AM clutching my pearls, god damnit!

by biting my nailsreply 1006/10/2013

No SCOTUS ruling today on DOMA or Prop8. Next time we might hear from the Court is Thursday.

by biting my nailsreply 1106/10/2013

...I do think they will wait to the last possible second, so I am thinking it will be the last thursday in June (the 27th)...

by biting my nailsreply 1206/10/2013

At least this SCOTUS decision in Oxford v. Sutter is somewhat limited. Still, I really don't like how arbitration is slowly privatizing our judicial process.

by biting my nailsreply 1306/10/2013

The widespread prediction at the law school where I teach is that the DOMA decision will ultimately be the more important, in that it will pull out the crucial thread in Federal protection of anti-gay-marriage state legislation. Once that thread is pulled, the fabric of anti-gay legislation will rapidly deteriorate both at the federal and state levels. However, it is also likely that the decision will not be a majority decision (Kennedy will most likely file a concurring opinion leading to an effective majority), and that it will not be founded on gays having "heightened scrutiny" protection under the Constitution -- which is what we really want and need. So we will stumble along for a number of years of protracted litigation.

The Prop. 8 case will probably be punted. The hope is that it will at least allow gay marriage in CA as a whole, and not somehow be narrowly confined to the two couples who are the plaintiffs. CA would be a big win, more than doubling the number of Americans living in jurisdictions that allow same-sex marriage. But other states would have their own legal obstacles still intact.

by biting my nailsreply 1406/10/2013

thanks for that excellent analysis.

by biting my nailsreply 1506/10/2013

My own impression is that they won't declare a Constitutional right to same-sex marriage, but they'll leave the door open for a future Court panel to do it somewhere down the road.

by biting my nailsreply 1606/10/2013

Yes, R15.

Considering what it took to abolish slavery, it is important for all of us to remember that the vision of the Declaration of Independence and the notions of liberty and individual rights are distinct from our legal system, and that systematic discrimination still is possible - and existent - regardless of the foundational "self-evident" nature of our supposed rights.

by biting my nailsreply 1706/10/2013

[quote]So since we agree they do, [R4], why would they not seize the moment to do the "right thing" and hasten that day (and avoid all those inevitable lawsuits clogging up the courts for years)?

I think they deem it best to only decide the case in front of them rather than issue a sweeping ruling. Sometimes, it's best to let things evolve, though it causes pain to people in the the short run. I know, it's not fair, but there is something to be said for not getting out too far from public opinion. We've seen how this can have a negative effect in a lot of other cases.

I'm not even sure DOMA will be struck down, but I'm hoping for the best.

r15 - can you explain what you mean by "heightened scrutiny"? This is a legitimate question and not meant to be snarky.

by biting my nailsreply 1806/10/2013


by biting my nailsreply 1906/10/2013

Under the Constitution as interpreted by the Supreme Court, it is permitted for Federal or state governments to discriminate against certain specified classes of people only if the government can advance truly compelling reasons for doing so. This is especially true for racial groupings, and, to a slightly lesser extent, for sexual groupings, religious groupings, and so on. Basically, the rule of thumb is: any legislation that discriminates against such groups is almost certainly going to be found unconstitutional. This form of constitutional protection is called either strict or heightened scrutiny, depending on the specific class.

At present, the Supreme Court has never held that gays are entitled to heightened scrutiny of legislation that discriminates against them, as anti-gay-marriage statutes arguably do. But in cases like Romer v. Evans and Lawrence v. Texas, majorities did seem to adopt at least a minimalist form of heightened scrutiny; and numerous lower-level courts, both Federal and state, have held that full heightened scrutiny should be extended to gays.

If the Supreme Court finally did give us heightened scrutiny, that would be a really big victory for us. But don't hold your breath.

by biting my nailsreply 2006/10/2013

They SHOULD give us heightened scrutiny, those rat bastards!

by biting my nailsreply 2106/10/2013

[quote]Yes, I was naively hoping for a nationwide, federal law change regarding federal marriage benefits.

Well how many states have to pass same sex marriage before the Feds get involved, all 50? In New York where it is legal now, a gay couple is not afforded the same benefits their straight next door neighbors do. How is that Constitutional?

by biting my nailsreply 2206/10/2013


by biting my nailsreply 2306/10/2013

The DOMA decision, if it is favorable to us, will almost certainly not satisfy you, R23. What it will most likely say is that the Federal government, in granting its own marriage benefits (including, e.g., Social Security), must defer to state definitions of marriage and cannot impose its own definition nationwide.

So: if the decision goes as anticipated, the New York gay married couple will get the same Federal benefits as the hetero couple living next door. However, if those two couples both move to, say, Georgia or some other state that does not now recognize gay marriage, the hetero couple will continue to receive both Federal and state benefits, while the gay couple will receive neither.

As Stephen Colbert (in his role as conservative pundit) observed, "Even for me, that's fucked up."

by biting my nailsreply 2406/10/2013

[quote]So: if the decision goes as anticipated, the New York gay married couple will get the same Federal benefits as the hetero couple living next door. However, if those two couples both move to, say, Georgia or some other state that does not now recognize gay marriage, the hetero couple will continue to receive both Federal and state benefits, while the gay couple will receive neither.

This would seem to violate another Constitutional provision...

For example: First cousins can marry in one state, but not another. However, if those married first cousins move to a state that won't allow same-sex cousins to marry... they're still married. Because regardless of individual state laws on marriages, the state is required to recognize the marriage performed in another state.

So why, if those couples move, would the Federal Government be required to "un-recognize" their legitimately performed and legal marriage?

Further, why would the state they move to be allowed to consider them "unmarried" when they are in fact legally married in the state of their origin?

It seems requiring these additional cases to go to court when the legal outcome should be obvious and clear is rather stupid... shouldn't all of this "just happen" as a consequence of DOMA falling?

by biting my nailsreply 2506/10/2013

Only part of DOMA is up for review by SCOTUS. They could theoretically strike down the whole thing, but I don't think anyone expects them to.

Yes, it's stupid.

by biting my nailsreply 2606/10/2013

I was wondering the same thing, r26. Does the law require the state you live in to recognize your marriage in order to receive FEDERAL benefits?

by biting my nailsreply 2706/10/2013

And for those of us who got married in one gay marriage state and live in another, do we need to get married again?

This waiting is killing me. I'm optimistic, but still....

by biting my nailsreply 2806/10/2013

[quote]The DOMA decision, if it is favorable to us, will almost certainly not satisfy you

Thank you but that's not what I wanted to know. Maybe I worded it wrong. How many states have to approve Same Sex Marraige for the United States Federal Govermnet to award all married same sex couples the same as straight couples, no matter where they live. Straight couples don't have to worry about losing benefits if they leave a certain state.

by biting my nailsreply 2906/10/2013

Yes, r28 and that's entirely FUCKED UP.

by biting my nailsreply 3006/10/2013

Not being a legal expert, I will defer to those of you who are more well-versed in such matters. However, I cannot even begin to imagine the chaos that would ensue eventually over having differeng "rights" or the lack thereof from state to state. That is far from "equal protection under law" so frequently touted by legal talking heads.

by biting my nailsreply 3106/10/2013

R31, but that isn't true for straight couples. You can be married in the state and according to the Federal Government EVEN IF the state you reside in wouldn't perform your marriage. Because it's legal in another state, it's recognized in all states.

by biting my nailsreply 3206/10/2013

Which is precisely why it's so outrageously unfair and UNCONSTITUTIONAL r33!

by biting my nailsreply 3306/10/2013


by biting my nailsreply 3406/10/2013

I think many of you are picking up on what will precisely be the next legal challenges to go before the Supreme Court. It is not going to happen this time around, but we WILL be making progress even if it is not the sweeping ruling we would all like, myself included.

by biting my nailsreply 3506/10/2013

R30: Well, you put your finger on the problem. In principle, it wouldn't immediately make any difference if 49 states accepted same-sex marriage, and one state (say, Alabama) held out; the Federal government might still defer to each individual state, so if a couple moves from NYC to Birmingham, it would lose benefits.

But that would be a nightmare. For instance, what does it mean to reside in a state? If you have a winter home in Alabama, do you reside there? If you don't, will your benefits continue despite your being in Alabama?

The Supreme Court, so it seems, is preparing to unleash the Kraken, all because they're scared about making an oversweeping decision. Wimps.

by biting my nailsreply 3606/10/2013 the number one urban dictionary definition of that phrase...

by biting my nailsreply 3706/10/2013


by biting my nailsreply 3806/10/2013

[quote]As someone said in another thread, this will either be the best Pride ever or the worst.

Not necessarily. Adversity has always set the stage for the best marching we’ve ever done and manages to extract the sense of pride to a level beyond floats, cock rings, and feathers.

by biting my nailsreply 3906/11/2013

We pay a lot in taxes, and it sucks that we don't get federal marriage benefits.

by biting my nailsreply 4006/11/2013

If the SC screws us just days before Pride, I think you'll see some angry protests at NYC and SF Pride parades this year. It will be interesting for sure.

by biting my nailsreply 4106/11/2013

No ruling today on DOMA.

by biting my nailsreply 4206/13/2013

While I appreciate the update and the bump, this monumental ruling won't be until the 27th, don't you think? I am 96% sure they wouldn't release it while they still had to walk into the courthouse for days afterwards. I am sure they want to get the heck out of dodge, because $%^& will hit the fan whichever way they rule...

by biting my nailsreply 4306/13/2013

We'll probably get one win and two punts.

We'll see.

by biting my nailsreply 4406/13/2013

One win and two punts is better than three defeats, I guess. The arc of history is in action here for sure.

by biting my nailsreply 4506/13/2013

"The arc of history is long but it swings toward justice."

I hope MLK was right about that.

by biting my nailsreply 4606/13/2013

sorry it should read

"bends toward justice."

by biting my nailsreply 4706/13/2013

[r44] I agree. Next possible dates are 6/17 and 6/24, but I don't expect them to rule before 6/27

by biting my nailsreply 4806/13/2013

Huffpost is shaming them on the front page.

by biting my nailsreply 4906/13/2013

Interesting survey results.

by biting my nailsreply 5006/13/2013

R15 is right on the odds, but for a law school professor (and possibly a gay one) the legal explanation is scarily colloquial.

Courts don't extend heightened scrutiny to people, and would never extend protection to a minority group.

Courts heighten scrutiny of classifications based on a characteristic -- race, gender and (as California has done) sexual orientation discrimination. Yes, courts heighten scrutiny that end up helping minority groups because a history of discrimination against "Negroes" or "gays" justifies being suspicious of that form of discrimination, but the scrutiny benefits the majority as well. This is why white people have benefited from heightened scrutiny of race-based classifications, and may be handed a win by the conservatives this term in Fisher.

Just so you know....

by biting my nailsreply 5106/13/2013

Will the punts be cunt punts?

by biting my nailsreply 5206/13/2013


by biting my nailsreply 5306/13/2013

SCoTUS will save the decision for the last day. Such drama queens.

by biting my nailsreply 5406/13/2013

[quote]I am optimistic they will decide in our favor on Prop 8, but pessimistic that they will punt to the states on DOMA...

Another poster on this thread may have already pointed this out, but the OP actually has this backwards.

It seems counterintuitive but: It's the Prop 8 case which is the one that has the potential to establish a constitutional right to ssm. Punting on Prop 8 leaves it to the states.

Overturning Section 3 of DOMA actually does follow a state's rights argument ie leaving it to the states, not the feds, to determine who is married.

This chart helps explain the cases and the potential outcomes:

by biting my nailsreply 5506/13/2013

[quote]But that would be a nightmare. For instance, what does it mean to reside in a state? If you have a winter home in Alabama, do you reside there? If you don't, will your benefits continue despite your being in Alabama?

All good questions. And what about couples married in Canada? Couples who marry or live on military bases? Will they get federal benefits? Will they lose those benefits the moment they step off base? What about couples that live in Virginia but work in DC? They're married at work but unmarried at home?!?

The Supremes may be too timid to dig into the issues of Prop 8, but narrowly overturning the blatantly unconstitutional Section 3 of DOMA--even with the state's rights argument--just seems like it leaves in place a legal situation so lopsided, chaotic and unequal they almost have to take it further than that. I'd be curious to hear a legal expert's thoughts.

It's so fucking obviously time for equality. Just effin DO IT, Kennedy. History does not look back kindly on cowards.

by biting my nailsreply 5606/13/2013

Sadly unlikely, R57. We could be shocked by the outcome, but probably will not be.

But if the DOMA case is a win for us, it sets the stage for full faith and credit cases in recognizing gay marriages federally and state to state, which could be the battleground case of the future (states have the right to make their own laws but generally recognize marriages in other states, even if they have different age limits, etc. -- it could be a Romer violation to say no.)

A gay couple married in Canada can move to a state that recognizes marry in a state that recognizes gay marriage and will get federal benefits.

But for the rest of the country...

If you look at the trilogy of cases most relevant in politics if not law -- Loving v. Virginia, Bowers v. Hardwick, and Lawrence v. Texas -- the Court favored rights in the first and third after most states had already gone in that direction, whereas in Hardwick the Court split 5-4 and specifically claimed it wasn't going to go against the half of the states that had sodomy laws at the time.

The Court doesn't want to move too fast, and if the Court at least lets the lower courts stand in Prop 8, it's better than the nightmare scenario that Lambda worried about if the case was brought too fast -- that the Court would come up with a homophobic ruling, and from the digs Scalia took at oral argument, it looks like that's why the Court took cert, because the conservatives wanted to make a statement and convinced Kennedy to go along, who seemed to have regrets by the time oral argument went around.

In other words, it wasn't the progressives who wanted to take the case to make history. Even Ginsberg has said with regard to Roe v. Wade that she wonders if the Court went too fast ahead of the nation in making a broad ruling.

So yes, this will actually force gay people in the horrible states to take drastic steps -- move even if it's a hardship -- or fight harder than ever to get rights.

And we'll see, as Britain gets same-sex marriage democratically, if the US starts to see itself as backward...

by biting my nailsreply 5706/13/2013

[quote] there is something to be said for not getting out too far from public opinion.

The idiotic, racist, homophobic, know-nothing, fundie American public can go shit in a lake as far as I'm concerned.

It's time for legal equality. It shouldn't have to be a popularity contest.

by biting my nailsreply 5806/13/2013

I just can't see the logistics of the Fed Govt "flagging" same sex couples' records, such that if widower Adam gets Joe's Soc Sec benefit in MA, and moves to FL a year later, he gets a shutoff notice?

I'm hoping that Roberts would rather end this DOMA nonsense now, rather than have it keep coming back.

by biting my nailsreply 5906/13/2013

[quote]convinced Kennedy to go along

They wouldn't have had to convince Kennedy because only four justices need to vote to hear a case. In fact, it was clear from what Kennedy said at oral arguments that he had not voted to hear the case. He wondered aloud if review had been properly granted, that's not something he would be likely to say if he had been among those who voted to review. The most likely explanation is that the conservatives voted to hear it because they knew their chances of convincing Kennedy would not improve with time.

[quote]full faith and credit cases

My understanding is that full faith and credit does not apply to marriage law. See link.

But I'm still actually wondering about the mechanism by which the feds will deny benefits to married gays living in inequality states. Could you not claim to reside with friends in NY but that you simply travel a lot to New Jersey? Will the feds send teams to investigate every last claim for benefits? How might this work? Couldn't couples just get a PO Box in a freedom state? Who's to say?

My point is that denying federal benefits to married couples in inequality states would seem to require a new level of scrutiny about 'state of residency' that it just seems almost unworkable. Has there ever been another situation (besides slavery/segregation) where a citizen's legal status changed so drastically from state to state?

My point is no longer really even about justness or unjustness. I'm actually wondering if they'll be able to carry it out convincingly. It seems almost unworkable and I'm wondering if someone knows enough about "residency" law to comment.

by biting my nailsreply 6006/13/2013

Well put, r60. My questions at r61 are along the same lines, but you put it much better.

by biting my nailsreply 6106/13/2013


by biting my nailsreply 6206/13/2013

R61, with regard to Kennedy, you need to check your sources. The Kennedy-Scalia exchange suggested to most observers that when he wondered if the Court took the case inappropriately, Scalia's dig at Kennedy (it's too late now!) was directed at Kennedy because Kennedy had voted to grant cert. and now had regrets.

Most people think Roberts probably did not vote to take it. He saw what position he was put in during the Sebelius case and doesn't want the Court remembered for divisive political decisions. That would mean that it was Scalia, Alito, Thomas and yes Kennedy.

As for FF&C, Wolff is correct in part, but his view is skewed by his politics to put down the panic argument. The fact that there has been no case forcing a state to recognize a marriage doesn't mean there won't be.

FFC does require courts to uphold court decisions, as Wolff concedes, so any rights decided in a court case (property, probate court, divorce, etc.) would have to be recognized in another state -- under the FFC clause.

The idea that any straight married couple would be deemed unmarried in another state is exactly why there has been no case, so to selectively recognize marriages raises a separate problem -- discrimination again. So yes, it might be brought up through Equal Protection again (see my post invoking Romer above) rather than the FF&C clause, but the constitutionality of singling out gay couples for non-recognition is problematic.

by biting my nailsreply 6306/13/2013

We would all be wise to remember that oral arguments last year suggested the ACA would be overturned. In its judgment, the Court upheld it thanks to Roberts. I am optimistic the final decisions in both cases will be better than some of the pessimists and pundits would lead us to believe.

I also struggle to believe Roberts will want to revisit either of the cases in a year or two, which is what will happen with narrowly scoped decisions. A broad, fundamental right ruling, as unlikely as it seems to us, surely must be tempting for Roberts if he wants to prevent rehearing similiar cases and to cement his legacy.

by biting my nailsreply 6406/13/2013

To R60 and R61 about the residency requirement and DOMA.

The DOMA challenge, if successful, would prevent the federal government from withholding recognition of same-sex marriages granted by the states.

If you get married in New York, and leave New York, your license is still valid in that state -- and therefore for federal tax purposes, etc., if the relevant provision of DOMA is struck down. In fact, even states like Georgia have held that a civil union / same-sex marriage is valid to the extent that if you want to get a divorce, you have to go back to the state where you got married or a state that recognizes it to get divorced.

Therefore, there's no need to keep track of such couples. If you have a marriage license from a SSM state, you will be entitled to federal marriage benefits.

The problem for tax purposes will be the reverse of what it is now for SS couples now in Massachusetts. If you marry in Massachusetts now and try to file federal taxes jointly, you can't file a federal joint return because of DOMA, therefore you have to do phantom joint returns to go with your state joint returns.

If DOMA is struck down and you can now file federally on the basis of your Massachusetts license, but move to North Carolina and try to file jointly using your federal return, you'll have to make up phantom individual returns to have the data to file your state taxes.

In other words, it's not the federal government you'll have to deal with post-DOMA. It's the anti-gay state you move to ... so don't move there, problem solved.

by biting my nailsreply 6506/13/2013

Um, R65, the Court is not forced to take any case.

It never took the DADT cases, even though it could have. It let all the decisions stand -- possibly because the progressives thought they didn't have the votes, but the Court also didn't take several cases involving gay couples and gay speech that won in courts of appeal for gay plaintiffs either.

After this battle, the Court could easily want to stay out of it for awhile.

And R66 is right. Stay out of these bigoted states - no gay person should even vacation there or spend one dime there. Ever.

by biting my nailsreply 6606/13/2013

R67, I suspect the four liberals will vote to keep hearing future cases until a broad ruling is issued. Those four are enough votes to keep those cases coming.

by biting my nailsreply 6706/13/2013

R68 you suspect it based on what?

Did you not read the above? The progressives didn't vote take the DADT cases because they didn't think they had the votes. They didn't take the Cincinatti ordinance case post-Romer, the gay immigration cases, or the Shahar case, or any number of cases that they should have taken because the voting was uncertain.

The Court takes a case usually when there is a split in the circuits, and even then doesn't often do it.

And the four progressives apparently didn't vote to take the Prop 8 case either.

by biting my nailsreply 6806/13/2013

And by votes, I mean the votes to win the case.

Progressives don't vote to take cases that they will lose. If Kennedy (and Roberts) vote on an issue like standing, they're sending a warning sign that they're not ready.

by biting my nailsreply 6906/13/2013

"I'm hoping that Roberts would rather end this DOMA nonsense now, rather than have it keep coming back"

Because that closet door creaking makes him shiver to the bone.

by biting my nailsreply 7006/13/2013

When will Scalia and Thomas DIE so someone can appoint some competent, human beings as replacements?

by biting my nailsreply 7106/13/2013

R66 is correct; there is no question about this (though weird bloggers say this sometimes.). If Section 3 is thrown out, couples married in same sex states can pick up & move to wherever they want to and they could file jointly, claim SS benefits and all of the rest of the federal benefits.

This will create such a ratfuck that it will eventually lead to an equal protection claim that throws out Section 2, i.e., a lesbian couple in the Marines are married in Iowa and stationed in North Carolina and can't enroll their kids in school or similar. We're talking thousands of these lawsuits and either Congress repeals it under pressure or SCOTUS rules it unconstitutional.

by biting my nailsreply 7206/13/2013

Thank you, r73.

by biting my nailsreply 7306/13/2013

r71, I'm surprised in this day and age that someone hasn't busted open that closet door in the media by now.

by biting my nailsreply 7406/13/2013

...because he's married with kids and often that's all it takes.

by biting my nailsreply 7506/13/2013

If you're same-sex married and live in a red state with no state income tax and no estate tax, like Florida and Texas, then you'll be okay IF you also have the necessary legal documents in place. For instance, you'll need a medical power of attorney and an airtight will, etc. Texas and Florida gays won't necessarily be forced to move to SSM states. I'm talking about childless couples here.

by biting my nailsreply 7606/13/2013

R73 --

So, you're saying that a couple can move from say MA to TX, and keep their Federal married status, but a TX couple who marries in say, New York, never gets any Federal recognition at all?

Do the feds defer to local laws such that a gay couple gets a joint customs allowance arriving at Boston, JFK and Seattle, but not at Dallas, Atlanta, etc.?

by biting my nailsreply 7706/14/2013


by biting my nailsreply 7806/14/2013

On the full faith and credit issue, R61 is correct and R33 is wrong. The FF&C Clause has never required a state to recognize a marriage contrary to its own public policy. That's why so many states rushed to declare public policies defining marriage as only between a man and a woman after the Hawaii Supreme Court in 1993's Baehr v. Lewin held that the denial of marriage equality violated the equal protection clause--they were terrified that all these same-sex couples would fly to Hawaii, get married, and then demand recognition of the marriage in their home states. (That's part of what impelled the enactment of DOMA. Well, that and Monica Lewinsky.)

So, yes, a state that denies heterosexual first cousins the right to marry could refuse to recognize a marriage solemnized in a state that would permit it. It's rare in practice, but it's entirely lawful.

by biting my nailsreply 7906/14/2013

If a gay couple living in TX decides to get married in MA while on vacation, will their marriage be recognized by the federal government if DOMA is struck down? Of course, they'll get no state marriage rights while living in TX.

by biting my nailsreply 8006/14/2013

R81, re-read R66 and R73. Their answer is yes.

by biting my nailsreply 8106/14/2013

Let me dial that back.

A vacation visit may not be enough if the state has a residency requirement for a marriage license.

Whether they do, I don't know.

by biting my nailsreply 8206/15/2013

It will be one big clusterfuck, whichever way they rule, unless they are bold and make a sweeping federal change.

by biting my nailsreply 8306/15/2013

As I said earlier, I really hope Roberts and Kennedy just want the issue to Go Away, so use the 9th Circuit's strong language as cover in the Prop 8 review, rather than a less likely state DOMA ban via the Windsor case, which would be tougher for that.

by biting my nailsreply 8406/15/2013

The vacationing TX couple is subject to residency requirements, which are most often minimal (states love being the destination in destination weddings.). I know NH will marry out-of-staters as some lesbians from law school dragged us all there for their wedding 3 years ago.

But, yes, when they return to TX they would have all Federal recognition if Section 3 is tossed out.

When that asshole Romney was governor of MA, he wanted to prevent it from becoming the Vegas of gay weddings, so he tried to invoke a law dating back to the slavery era which prevented non-residents from being married there. I don't remember what came of it, but he took a bunch of shit for it in the Boston press.

With Section 3 gone, watch for private companies to go on the offense about this. Imagine FedEx's HR department trying to figure out how to offer health insurance to a gay pilot based in Memphis whose husband lives in MI (which bars by state law healthcare for same sex partners) and they were married in IA. Such companies are going to start getting sued everywhere, even of they're not the bad guys (like those dicks at ExxonMobil). Chik-Fil-A alone is going to be awesome.

by biting my nailsreply 8506/15/2013

I don't think there's a residency requirement in MA. I know several TX gay couples who got married while on vacation in Provincetown. Gay marriage is a cottage industry there.

by biting my nailsreply 8606/15/2013

Experts, I have a question for you. I thought states were occasionally allowed to not recognize marriages from other states. Like, if a 14-year-old gets married in Montana (or wherever it's legal) and moves to South Dakota, South Dakota does not have to recognize that marriage if it would otherwise be illegal under South Dakota state law.

Is that false? Or is it just one of those cases where it would be unconstitutional if someone took it to court, but no one will because who wants 14-year-olds to get married? (Not that gay marriage is anything like little kids getting married, but I've seen a lot of arguments saying that if it's legal in one state, all the other states will have to recognize that marriage, too, so I was curious.)

by biting my nailsreply 8706/15/2013

Or, hey, I could just read more carefully and see that my question was answered in r80 and r81. Never mind!

by biting my nailsreply 8806/15/2013

At the time that same sex marriage was mandated in MA, there was a 1913 law on the books that out-of-state residents could not marry in MA if their union wouldn't be legal at home; this (racist) statute was enacted to prevent inter-racial couples to marry in MA at the time, but Mitt grabbed onto defending it like a life raft when fundies blamed HIM for a court decision over which he had no control. The law was repealed as soon as Patrick took office.

by biting my nailsreply 8906/15/2013

I'm surprised that Hawaii doesn't currently allow gay marriage. Think of all the money the state is losing by not allowing gay tourists to get married there while on vacation.

by biting my nailsreply 9006/15/2013

Hawaii has a VERY politically active Mormon population.

by biting my nailsreply 9106/15/2013

I am not so sure that it is a given that federal recognition of marriage equality would apply in every state. I have read several opinions that SCOTUS could narrow the repeal to only apply to residents of equality states, meaning if you leave that state you loose the recognition.

I don't believe they would really do that because even many conservatives would balk at the now-you're-married-now you're-not result. Marriage is a contract after all and it is a bad precedent to make contracts potentially so worthless.

by biting my nailsreply 9206/15/2013

[quote] I have read several opinions that SCOTUS could narrow the repeal to only apply to residents of equality states, meaning if you leave that state you loose the recognition.

If that happens, then you'll see gay couples moving to equality states in droves. And a lot of them will be wealthy couples looking to avoid federal estate taxes. In fact, Edie Windsor filed the lawsuit challenging DOMA because she was stuck with a huge tax bill when her wealthy partner died.

by biting my nailsreply 9306/15/2013

r93 and r94 you're misreading those predictions and making flawed assumptions.

The repeal of DOMA would bar the federal government from using a discriminatory reason not to recognize valid marriages in those states. That is the reason that has no impact on states that don't allow same-sex marriage.

If however a gay couple is validly married in a SSM state they are married for purpose of that state's law until they divorce, and therefore the federal government has no basis to withhold that recognition on the basis of where you reside. Otherwise, any straight couple who married in another state would have to get a marriage license in each state they reside, and would not get that protection if they didn't meet the state's other marriage requirements under that state's law (age, blood relationship like cousin status, etc.). You just have to have a valid marriage license.

The gay married couple will NOT get STATE law benefits in anti-SSM because those benefits are determined based on state law -- e.g., being able to file taxes jointly for state taxes, get a tenancy by the entirety, or benefit from community property rules, etc

The DOMA case only addresses this one section of federal law and if we win there's is no basis for the federal government to deny a gay couple recognition if they have a valid marriage license, but equally no basis for compelling equality under state law. The opinion might be written in a way to help or hurt future cases under state law, but that's a different problem.

by biting my nailsreply 9406/16/2013

Legal Eagles, about the gutting of the Voting Rights Act mentioned upthread, do I understand correctly that they just voted to preserve it?

This is good, yes?

by biting my nailsreply 9506/17/2013

No, this was specifically about Arizona, right?

by biting my nailsreply 9606/17/2013
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