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View Diary: Obama administration will file brief in Prop 8 case (101 comments)

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  •  the difference, as I see it (1+ / 0-)
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    Romer, because it's based on ill motive, helps us strike down new laws which were consciously passed to block marriage equality. But it won't be enough for states where they just haven't consider the question in over a century. That's where we need heightened scrutiny.

    This DOMA decision will likely only say "when a state has recognized marriage equality, the feds have no rational basis not to do so as well."

    In other words, you can resolve both cases without hitting heightened scrutiny.

    •  I think DOMA's going to be struck completely. (1+ / 0-)
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      Loving more or less demands it, and you can't have people legally married in one state and legally not married once they cross state lines.

      As for what is essentially your "historical" argument, that was also dealt with by Romer and said just because we've done things one way for a long time does not mean it's constitutional.

      There's a reason they took both Prop 8 and DOMA at the same time.  Right now, the law regarding same-sex marriage is a legal hash, and the law generally abhors that.  You can't have a couple married in Iowa, then not married in Nebraska, which is why we have the Full Faith & Credit Clause in the U.S. Constitution.

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