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View Diary: Federal judge finds DOMA denial of benefits unconstitutional (126 comments)

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  •  Footnote 5 is why we are ultimately (17+ / 0-)

    going to win.

    The question of whether DOMA impacts a fundamental right is addressed briefly by the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married under state law. The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law. Thus, Baker v. Nelson, 409 U.S. 810 (1972), which ostensibly addressed whether same-sex couples have a constitutional right to marry, is irrelevant here. See Perry v. Brown, --- F.3d ---, 2012 WL 372713, at *17 n.14 (9th Cir. 2012) (“Perry II”).

    However, it is established that there is a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”).

    The analysis of the fundamental right to marry has not depended upon the characteristics of the spouse. The Supreme Court cases addressing the fundamental right to marry do not define the fundamental right in narrow terms. In Loving, the Court defined the fundamental right as the right to marry, not the right to interracial marriage. 388 U.S. at 12. In Turner, the fundamental right was the right to marry, not the right to inmate marriage. 482 U.S. at 94-96. In Zablocki, the fundamental right was the right to marry, not the right of 28 people owing child support to marry. 434 U.S. at 383-86.

    Ok, so I read the polls.

    by andgarden on Wed Feb 22, 2012 at 03:47:53 PM PST

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