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View Diary: UPDATED! A big deal on Prop 8 is BREAKING (46 comments)

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  •  Justice Dept. DOMA brief (7+ / 0-)

    The Justice Departments DOMA brief argued for "Heightened" scrutiny regarding the Equal Protection Clause.  If the Court agrees, it would be a VERY expansive Ruling.

    Tikkun olam. Repair the world.

    by sarvanan17 on Thu Feb 28, 2013 at 11:45:18 AM PST

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    •  What do you think are the chances (1+ / 0-)
      Recommended by:

      the other sections of DOMA would survive heightened scrutiny?

      You never trust a millionaire/Quoting the sermon on the mount/I used to think I was not like them/But I'm beginning to have my doubts -- The Arcade Fire

      by tomjones on Thu Feb 28, 2013 at 12:18:30 PM PST

      [ Parent ]

      •  DOMA has only three sections (5+ / 0-)

        Section 1 is basically the title. Section 2 is the one whereby no state needs to give effect to same-sex marriages performed in other states. This is not being contested because states are already permitted, with some caveats not to recognize marriages performed in other states. The biggest caveat of course pertains to interracial marriages because Loving vs Virginia determined that such a basis for a state refusing to recognize another state's marriage would not be constitutional under any circumstances. But states can already, based on other statutes and regulations, refuse to recognize marriages they deem "contrary to state policy." It is possible that a determination that sexual orientation is a suspect class subject to heightened scrutiny could result in Section 2 being rendered invalid but I think that would probably need to be litigated separately.

        At this point, Section 3 is the portion of DOMA that really matters since it imposes a blanket non-recognition of a set of legally contracted marriages for ALL federal purposes whatsoever. I don't think it stands a prayer of being upheld. And THEN, once it's struck down, we can go on to litigate marriage equality in all states as a matter of constitutional right.

        Two other observations here:

        1. As much as I'd like to see either the Prop 8 or the DOMA case result in a decision akin to Loving vs Virginia I don't think the current court has the courage to make such a ruling and in fact, no matter how strongly they rule against Prop 8 and/or DOMA they will do their best, using whatever contorted logic is available to them, to limit the scope of those rulings.

        2. It strikes me as more than a bit ironic given the scope of DOMA's reach that it is such a short and simple piece of legislation. That fact makes it apparent that the proponents of DOMA gave no thought at all to what it might actually mean or that they were so terrified that gay people might have the right to marriage that they didn't even care what DOMA's consequences would be. Or some combination of both.

        •  Sec. 2 of DOMA should be the next target, (0+ / 0-)

          before constitutional right to marriage (like Loving).

          I think sec. 2 would almost certainly go down before a full faith and credit constitutional challenge.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Thu Feb 28, 2013 at 03:45:27 PM PST

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          •  Section 2 is irrelevant for the reasons that (0+ / 0-)

            sfbob stated.    Even without section 2 states are already free to refuse to recognize out of state marriages which significantly violate its own marital statute.    The "public policy" precedent dates from 1939.

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