So we are finally getting a real federal court challenge to DOMA by Massachusetts. On behalf of its 16,000 married gay couples, Mass. is asking what purpose the federal government has in denying them equal rights with other persons validly married under state law. The case has all the earmarks of a winner. It's the right plaintiff and the right argument. Why do I say this? Because the challenge being brought in California to Prop 8 is based on an equal protection argument that says "all persons have the right to marry." That is politically more difficult and requires a bigger ruling. The Mass. challenge, by contrast, is an equal protection argument for already-married persons. The Court can rule more easily that nothing requires a state or the federal government to marry two persons of the same sex to each other, BUT that where a person is legally married in a state to another person of the same sex, the feds, at least, must afford such persons equal treatment with other married persons. I expect Justice Kennedy will write a majority opinion striking down at least that much of DOMA.
Wednesday, July 08, 2009
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9 comments:
I would hope that Iowa and California would join the suit (as they also have hundreds Gay couples with valid marriage licenses).
To quote Justice O'Connor's concurrence in Lawrence v. Texas, "Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.[citations] .Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons."
Here's a thought. If the court rules as LTG expects and nothing else changes, Omaha could experience a sizable influx of hard-working, educated, respectable people with significantly more disposable income than the average couple.
Omaha is a medium sized city (about 3/4 of a million) right on the border with gay-friendly Iowa. It also just gave one of Nebraska's separate electoral votes to Obama - so it's not as conservative as the rural areas around it.
I am very happy to see this! I think your analysis is just right, LTG. I do have one legal question though... I can understand how a gay couple could sue for benefits, but what standing does the State of Massachusetts have to sue the Federal government regarding this issue? Is it suing on their behalf?
Here are some pertinent thoughts on gay marriage and the Constitution. (Legal references have been removed.)
"[P]reserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples... If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring;" what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"?
...Can you guess the source?
Yay Massachusetts! Fingers crossed here that they win - every bit chipped off DOMA is good with me...
Dr.S - that's Justice Scalia from the dissent in Lawrence v Texas, right?
As for the one question - the state is required by DOMA to discriminate against its gay married citizens in its administration of federal programs, such as medicaid, TANF (welfare). There are other arguments made for the state's role in social security and federal tax enforcement tha tifeels is unfair. Or rather, it is only required to discriminate agaisnt gay married people if they are married to each other...
Yup, it's Scalia's dissent. And how amusing would it be if his dissent were quoted in a court case that led to the recognition of gay marriage?
OK, just wondering about the standing thing. The court loves to throw issues out on technicalities so it does not have to deal with them. Especially under Roberts, I think.
The more I think about this, the more happy I am. I think LTG is exactly right that it is the right plaintiff, the right argument, the right time.
Go, Mass.!
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