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View Diary: BREAKING: DOMA is going to the Supreme Court (95 comments)

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  •  If they do not grant cert (4+ / 0-)

    then DOMA would be unconstitutional within the 1st Circuit, and constitutional everywhere else.

    That would be the biggest clusterfuck ever.

    •  But (0+ / 0-)

      wasn't Loving v Virginia brought from just one Circuit Court and when SCOTUS ruled against Virginia, weren't miscenegations laws struck down nationwide?

      Not a lawyer here so - looking forward to hearing from someone who knows.

      If corporations are people, and Soylent Green is people, I think I see a way out our problems.

      by jaf49 on Fri Jun 29, 2012 at 05:22:32 PM PDT

      [ Parent ]

      •  There were many differences (4+ / 0-)

        Among the differences:

        1. Loving did not pertain to a federal law but to a state law.

        2. Virginia not only didn't recognize or perform mixed-race marriages, it prosecuted them. The Lovings were legally married in DC. As soon as they crossed the Potomac River to Virginia they became criminals.

        3. By the time Loving was decided many states had already done away with their anti-miscegenation laws, either by statute or as a result of their own state court rulings (as was the case in CA in 1948). Of course some of the remaining laws stayed on the books for a considerable period of time even though they could no longer be enforced. The last one was removed only 12 years ago.

        •  Massachusetts still had one when Romney was gov. (2+ / 0-)
          Recommended by:
          jaf49, sfbob

          I am embarrassed as a Mass. resident that in 2003 there was still anti-miscegenation laws on the books. Even more shameful was the way that Romney ordered AG Tom Reilly to use the 1913 law, originally designed to prevent Jack Johnson style weddings, after the boxing champion married a white lady. Immediately after Deval Patrick was sworn in as governor, that racist law was repealed.

          •  Not quite an anti-miscegenation law... (0+ / 0-)

            Instead it was a law that prohibited out-of-staters from being married in Massachusetts if they couldn't also get married in their home state. So it was not a direct reference to interracial marriages but a means of keeping interracial couples from coming to MA from elsewhere and then going back to challenge the local laws. It was a piece of political backscratching when it originally passed but certainly served no legitimate purpose after 1967 and should have been dumped then and there. The last actual anti-miscegenation law to be removed from state statutes was Alabama's which was done away with by referendum a mere twelve years ago. It's pretty shocking that only 59% of voters approved the change. South Carolina did something similar in 1998; 62% of the voters approved removing the law from the books then. You'd think there would be no reason for states not to immediately abandon such statutes but you'd be mistaken. There are quite a few states that not only have not done away with their anti-sodomy laws since Lawrence vs Texas, some refuse to do so on principle. As long as the law stays on the books, you can be arrested for breaking it even if you can't actually be convicted. This can be useful when some vindictive jerk wants to harass someone.

      •  That's what will eventually happen with DOMA (3+ / 0-)
        Recommended by:
        Otteray Scribe, Scott Wooledge, jaf49

        But the court has to grant cert to hear this case, or as jpmassar points out, DOMA would be dead within the 1st Circuit, which would set-up a huge complicated legal mess which the SCOTUS would no doubt need to try and unwind when the conflicting cases brought across jurisdiction which would inevitably explode as a result.

        Part of me hopes this case instead of prop 8 is heard simply because of the public perception of it will be different nationally than if it were to come up from California through the 9th. But that is simply a PR view.


        Mitch Gore

        Want to end too big to fail banks? Then move your money and they will no longer be too big.

        by Lestatdelc on Fri Jun 29, 2012 at 05:34:01 PM PDT

        [ Parent ]

        •  First Circuit is a great test case (4+ / 0-)
          Recommended by:
          Otteray Scribe, sfbob, grover, jaf49

          since so many of the states within the Circuit recognize same-sex marriage -- all but Puerto Rico and Rhode Island (and Rhode Island now sorta kinda recognizes it, as long as the ceremony was across the border in Mass or CT). So the number of people who are forced to file a really convoluted set of tax returns, for example, is pretty high in the region.

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