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View Diary: Obama's brief urges marriage equality ... in California (and seven other states) (73 comments)

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  •  I think the way Adam framed the question (1+ / 0-)
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    Adam B

    makes it seem narrower than the brief really is.  It doesn't explicitly say that the ruling it seeks would apply to these 8 states, or that marriage equality should be extended to these 8 states only.  

    What it argues is that the lawsuit can be resolved on grounds only immediately applicable to those states, but by arguing for heightened scrutiny, it extends broadly.  A strict application of Romer v. Evans and rational basis review could result in a ruling that says if a state extends all benefits of married couples to gays and lesbians, it has to recognize those unions as marriages; but a state is not so required.  A precedent on heightened scrutiny, by contrast, makes the status of states with no civil unions considerably worse, not better, but it leaves the final resolution to interested parties in those states to bring their own lawsuits.  

    Another way to think of it is, what arguments can the U.S. Government make better than the parties, themselves.  I think that's why they were so focused on level of scrutiny, to the point of not even addressing whether Prop 8 satisfies rational basis (though reading between the lines, the government does not think it does -- it argues there's no interest at all, rather than qualifying whether an interest is "substantial").  When you throw the DOMA arguments in the mix, which arguably more directly implicates the question of scrutiny, the Obama Derangement Syndrome on display in some of the comments especially fails.

    Difficult, difficult, lemon difficult.

    by Loge on Fri Mar 01, 2013 at 07:56:56 AM PST

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