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View Diary: Elena Kagan proves that DOMA's original intent was bigotry, not tradition (129 comments)

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  •  The whole argument was depressingly (10+ / 0-)

    narrow.  They barely even scratched the subject of whether DOMA involved an equal protection violation, or whether there was a level of scrutiny appropriate for sexual orientation.

    That being said, our side put up a good fight today (better than yesterday, I think) and kept trying to refocus the discussion on these points.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Wed Mar 27, 2013 at 12:51:03 PM PDT

    [ Parent ]

    •  Another question or observation (8+ / 0-)

      Massachusetts is a marriage equality state but say I live in a state that doesn't allow it but I go to Massachusetts and fulfill whatever is required to get a marriage license. I get married in Massachusetts and move back to my home state.  Now I assume that my marriage will be recognized by the federal government and I can get all those benefits. Right?

      My marriage would not be recognized in my home state so I would still have to file state taxes as single and may even have issues regarding things like hospital visitation or medical decisions for an incapacitated partner, etc. And what happens if the relationship deteriorates and we decide to divorce?

      I just don't believe that marriage is an issue that should be dependent upon the state in which I live. Maybe it made more sense when the big issues may have been age and residency but no longer after the Loving decision.

      •  Not quite: (7+ / 0-)

        In this scenario, if you're a resident of the other state, you would still not be considered married even by the federal government, because you would be subject to the laws of your own state.   If your own state considers you unmarried, so would the feds.

        It'd be nice if we got a Loving-style decision that ended this once and for all, but it doesn't look like it from the oral arguments, unfortunately.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Wed Mar 27, 2013 at 01:20:49 PM PDT

        [ Parent ]

        •  But those aren't the only considerations (7+ / 0-)

          The bigger consideration for the SC, IMHO, is the military one.

          A same sex couple gets married in a state that allows it. If they were any other couple, the military benefits would be automatic - bring in the marriage license, get the ID card, medical care, BX privileges, etc.

          But now, that's not possible, and THAT is out and out discrimination. That's what they should be looking at.

          I know this case isn't about that. But that's the case that's going to change things, and I know it's coming.

        •  Well that's depressing (4+ / 0-)
          Recommended by:
          viral, pico, alice kleeman, mmacdDE

          So if my address says South Carolina but my marriage license says Massachusetts I'm SOL but if I move to Massachusetts or another state that allows same-sex marriage, all his well.

          So this would also be the case of a couple who resided in Massachusetts and got married. Now time passes and a spouse's company transfers them to a state that doesn't allow same-sex marriage. If they move they lose all the benefits of marriage.

          I may be overthinking this but there are way too many complications for marriage not to be a universal right.

          •  Not quite so depressing (2+ / 0-)
            Recommended by:
            BlueSue, True North

            Once you are legally married, merely moving your residence should not change that fact or work an "involuntary divorce" of sorts.  The new state of residence gives "full faith and credit" to the former state's marriage law, even if you could not in the same circumstances marry in the new state.

            •  Not necessary. There's the public policy (3+ / 0-)
              Recommended by:
              BlueSue, pico, mmacdDE

              exception to the FFC clause.  It's not a done deal.  Take pre-Loving Virginia.  They arrested the Lovings and banned them from the state.  Moving from one to another won't automatically force them to recognize it.

              One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

              by AUBoy2007 on Wed Mar 27, 2013 at 01:57:57 PM PDT

              [ Parent ]

              •  It won't UNLESS (0+ / 0-)

                The sc rules that states must abide by the full faith and credit clause of the constitution and recognize all LEGAL marriages, regardless of where they were performed.

                A straight couple can get married in canada, or Jamaica, or Mexico, or the Bahamas and there's no question that they're legally married. A gay couple that gets married in Canada, and they might as well not have bothered UNLESS they live in a state that recognizes it.

                That's crazy, and that's exactly the situation that was supposedly resolved by Loving.

                Which was, IMHO, the most appropriately named case ever decided by the court.

          •  No, if legally married in MA, SC *MUST* recognize (5+ / 0-)

            the marriage. You would certainly have a "Federal Case." Article 4 of the Constitution (not even one of those pesky Amendments) requires

            "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
            If you are denied any benefits due to different-gendered couples, then you can (and should) sue. The state may prevent same-gendered couples from marrying IN the state, but they can't ignore the legal act of another state.
          •  on a related note (0+ / 0-)

            Apparently 19 states + DC allow first cousins to marry. I know this isn't a DOMA issue, but will the feds recognize that marriage if they move to one of the 31 other states?

            And then there's the whole minors getting married thing.

            These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

            by HugoDog on Wed Mar 27, 2013 at 02:23:29 PM PDT

            [ Parent ]

        •  which could increase incentives (3+ / 0-)
          Recommended by:
          msmacgyver, viral, doraphasia

          on gay couples to move to gay-friendly states, benefiting those states' economies.

        •  If legally married in MA, legally married in CO (7+ / 0-)

          The Constitution's "full faith and credit" clause:

          Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
          requires that a legal marriage in one state must be recognized in another. One of the major reasons for DOMA was to provide cover for states that wanted to discriminate against other states providing for marriage of same gendered individuals.

          Assuming the DOMA is stricken, then we'll move on to various "full faith and credit" suits addressing just the question of how does a non-marriage equality state deal with residents legally married elsewhere. Seems pretty clear to me that once those cases reach the SC they'll have to effectively allow nationwide marriage equality. Same-gendered couples may not be able to receive a marriage license in Texas, for example, but if married in Maryland (yeah!) they can obtain married benefits (if they still exist) in Texas.

          Texas has already granted a divorce of 2 men married in Massachusetts, so part of the equation is in place.

          •  And it's Texas. Doesn't the irony make it extra- (0+ / 0-)

            true? An extra potent legal precedent?

          •  No, it does not: (3+ / 0-)
            Recommended by:
            AUBoy2007, mmacdDE, BlueStateRedhead

            if you move to a state that legally bars recognition of same-sex marriage, it does not matter if you were married in another state.   This falls well under the traditional policy exception against FF&C, and either 1. the Supreme Court has to decide otherwise, or 2. the states have to legalize marriage on their own.   Repealing DOMA isn't enough: DOMA section 2 only reiterates what's already been the constitutional reality about interstate marriage.    

            (There's a long history of jurisprudence on this issue, and needless to say, it's often contradictory.  e.g, and most relevant for this case, some parties have sued and won FF&C claims, and others have lost, with no rhyme or reason. See here pp4-6 [pdf] for a ton of examples.)

            The state of Texas, by the way, does not allow same-sex divorce.  The only successful case (Naylor/Daly) was successful because the state did not appeal the ruling before the statute of limitations ran out, and even now Texas is still challenging the ruling.  The actual case that's (still) making its way through the system, In re: J.B. is still being decided, with the Texas government - and the 5th Circuit - firmly against granting the divorce.  If SCOTUS doesn't take the case, then the 5th Circuit's ruling stands and divorces cannot be granted in Texas.

            And they most certainly cannot receive marriage benefits.  I don't know where you're getting this information from.

            Saint, n. A dead sinner revised and edited. - Ambrose Bierce

            by pico on Wed Mar 27, 2013 at 03:12:38 PM PDT

            [ Parent ]

        •  Not so fast... (1+ / 0-)
          Recommended by:
          pico

          "If your own state considers you unmarried, so would the feds."

          That question will be the issue of a whole new round of marriage equality cases in the very near future. It goes to Section 2 of DOMA and to the issue of Full Faith and Credit. If, as BlueSue wrote, she fulfilled the requirements for a marriage license in a marriage equality state, and got married lawfully, that license does not become null and void simply because she moves to another state. And the extent to which a non-equality state can refuse to recognize her as a married person remains to be litigated. In any event, it is doubtful the Feds would require her to deny her own status as a married person, simply because she moved. It may be that Arkansas, for example, may not grant her state benefits, but calling her "single" will have Federal implications. Before we even get to changing states of residence, what about travelers? If a married same sex couple gets into a car accident in a non-equality state, can that state treat them in the hospital as legal strangers? Or if they sue the other driver, can the state courts treat them as strangers in a legal proceeding?

          This is headed for court the day Section 3 comes down. Count on it.

      •  You're right (1+ / 0-)
        Recommended by:
        BlueSue

        it will make for a lot of confusion, esp. with civil unions.

        But the Court needs more cases to make these rulings...or at least to push state legislatures.

      •  aoeu (0+ / 0-)

        Assuming section 3 goes away but the rest does not...so a couple marries in Massachusetts, one of them is a federal worker so both have access to federal health insurance programs. They move to a hate-state. Health insurance goes away?

        All my rights reserved.

        by TealVeal on Wed Mar 27, 2013 at 01:43:21 PM PDT

        [ Parent ]

        •  Nobody knows, really. (0+ / 0-)

          But the usual presumption is that you're subject to the laws of your state of residence.  Except another slew of lawsuits on this issue, though.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Wed Mar 27, 2013 at 03:13:24 PM PDT

          [ Parent ]

    •  Here's a lawyer's take on the narrowness issue (6+ / 0-)

      of the arguments:

      Of course, I would love to see this case, as well as the Prop 8 case, decided on Equal Protection grounds, because I believe both Prop 8 and DOMA don't pass even the lowest level of Equal Protection scrutiny, let alone the highest level of scrutiny that I believe should be applied.

      But it is a time-honored principle of constitutional decisionmaking that a court should not reach a constitutional issue unless it is necessary to do so to decide the case.

      Further, if there are reasons why the case should not even be before the Court, the case or appeal should be dismissed without reaching the merits even if both parties are left without the relief they seek. Lack of "subject matter jurisdiction" due to the lack of a live "case or controversy," otherwise known as "lack of standing," is a classic basis for dismissing a case or appeal, even when (unlike the Prop 8 and DOMA cases, the nominal plaintiffs and defendants strenuously disagree on the outcome).  

      Dismissals for lack of subject matter jurisdiction/standing/justiciability rest on the premise that, because rulings on constitutional decisions have such far-reaching consequences, such issues should only be decided when harm to one or more of the parties cannot be avoided except by reaching the merits. The courts' constitutional decisionmaking resources should be conserved, under these principles, and saved for cases in which it "really" matters. And for these purposes, "really matters" means not just that a decision would decide the rights of a whole mass of people who are not before the court. "Really matters" means that both of the actual parties' rights will be affected.

      Now, clearly in the Prop 8 and DOMA cases, the rights of the plaintiffs will be affected by a ruling.  The Prop 8 plaintiffs cannot marry in California.  The DOMA plaintiffs are being denied federal tax and other benefits. But the defendants -- the State of California and the US government, respectively -- agree with the plaintiffs that the provisions in question are unconstitutional.  The intervening parties that have taken up the cudgels of defending Prop 8 and DOMA will not be benefitted if they win the case, or harmed if they lose case, in any but the most intangible, inchoate way. So, the principle of conserving constitutional decisionmaking resources suggests that the California and US governments should just stop enforcing Prop 8 and DOMA, in accordance with lower court decisions overturning them. That would save the Supreme Court's resources, and still permit California same sex couples to marry, and permit legally married same sex couples across the nation to receive federal benefits available only to married couples.

      Why haven't they done so?  That question got a lot of attention from the Justices, especially but not exclusively from the conservative ones, yesterday and today.  In particular, this morning the Executive Branch came under fairly withering judicial criticism for not just standing down from enforcing DOMA.  Both Scalia and Kennedy questioned why the Executive Branch didn't just have the courage of its convictions and refuse to enforce a law it deems unconstitutional.  Indeed, these justices seemed to suggest that the Executive could decide, even without a lower court ruling, that a statute was unconstitutional and refuse to enforce it.

      Well, one reason might be that if a US president refused to enforce DOMA, he might well be impeached by the House. And then the Senate would have to "try" him on the charge of failing to faithfully execute the laws. And absent a judicial ruling, a Senate (perhaps not this one, but certainly a hypothetical Senate run by an opposition party) could convict a president for not enforcing what it considered to be an important statute.

      Breyer and Alito (!) suggested that a chief executive had an interest in obtaining the highest appellate ruling he could before deciding not to enforce a duly passed statute.  But the core conservative justices seemed to think (not that this was explictly stated) that the chief executive should have been willing to risk impeachment and conviction by acting unilaterally to stop enforcing a law that the Executive Branch unilaterally decided was unconstitutional.  

      Assuming they get past the standing issue, the justices could also "conserve" constitutional decisionmaking resources by deciding the DOMA case on federalism grounds rather than Equal Protection grounds. This, I think, is what will actually happen with the DOMA case. Now, one could say that deciding based on federalism grounds -- that is, that the federal government intruded upon the powers reserved to the states in excluding from the federal definition of marriage certain couples legally married under state laws -- would not really conserve constitutional decisionmaking resources, because federalism is itself a constitutional issue. But the principles underlying such a federalism ruling wouldn't break new constitutional ground.  By contrast, resolving the issue of whether sexual orientation discrimination is subject to ordinary ("rational basis") or strict ("compelling state interest") scrutiny would require making new constitutional law. So the conservation principle would still be served by such a ruling.

      As I said at the outset, I think the Court could decide it has standing. But given the traditional reluctance of the Court to make new law if it can avoid doing so, couple with the reluctance of even the conservative justices to write an opinion that they must know will someday be seen as more like Plessy v. Ferguson than Brown v. Board of Education, I think that they will punt, if not to standing, than to federalism.

      •  A huge hole in the "just stop enforcing DOMA" (2+ / 0-)
        Recommended by:
        litigatormom, basket

        argument---apparently suggested by Roberts---is (in addition to possible impeachment) that the next president would have the option to just start enforcing the law again.

        Kind of amazing the the Chief Justice of the United States would suggest that the way to deal with an unconstitutional statute is to ask the nice president not to enforce it.

        Resist much, obey little. ~~Edward Abbey, via Walt Whitman

        by willyr on Wed Mar 27, 2013 at 02:51:18 PM PDT

        [ Parent ]

        •  Yes, that is a big hole (1+ / 0-)
          Recommended by:
          basket

          Of course, if a subsequent president decided to enforce it again, the executive branch would be defending the law in the next lawsuit, ensuring there is a case or controversy.

          The fact that we don't have presidents-for-life also pokes a hole in Roberts' assertion that the proper thing for a president to do if s/he thinks a law is unconstitutional is to not sign it.  That doesn't help the president if the law was signed by a predecessor.

      •  Does a decision based on federalism mean (1+ / 0-)
        Recommended by:
        basket

        DOMA is struck down (at least section 3) because it's up to the states, not congress, to define marriage? So couples legal marriages will be recognized for federal benefits based on their state's definition?

        (Then there's the complicating issue of couples legally married in one state moving to another where their marriage is not recognized.)

        •  If DOMA is struck down on federalism grounds (3+ / 0-)
          Recommended by:
          basket, mmacdDE, BlueStateRedhead

          then states will define who may be granted a marriage license within their respective borders.

          As for what happens if a same sex couple were to move to a state that does not recognize marriage, the answer is, it depends. Traditionally, states have recognized any marriage performed validly under the laws of the state or country where the couple was married.  For example, first cousin marriage isn't legal in all states, but first cousins married in a state where it is permitted are considered validly married if they move to a state where a marriage license are not issued to first cousins.  The state would grant "full faith and credit" to the marriage licenses issued by sister states, just as would enforce civil judgments issued by the courts of other states, even if the judgment arises under law that doesn't apply in the enforcing state.  

          When it comes to same sex marriage, it's a little tricker (although of course it shouldn't be). For example, New York State recognized same sex marriages legally performed elsewhere even before it began issuing marriage license to same sex couples a couple of years ago. Indeed, Edie Windsor has standing in this case precisely because NY recognized her 2007 Canadian marriage to Thea Speyer even though same sex marriages could not be performed within the state.  By contrast, some states have passed laws explicitly saying that they will not recognize same sex marriages performed in other states.  I think the better view would be that if DOMA is struck down, a same sex marriage would still be treated as a valid marriage for federal purposes even if the couple moved to a state where they could not have been married in the first place. But to the extent that there were state law benefits for married couples, whether they would qualify for those would depend on whether the state recognized ALL sister state marriages, or excluded same sex marriages from recognition.

      •  you make me feel so smart, there's a conxtitution (0+ / 0-)

        .....to be unxerstood and Ica be alittle bit part of it. Thnx litmom. Have you thgt of thebench iin your future?
        Sorry for fat fingered typos

        "Are you bluish? You don't look bluish," attributed to poet Roger Joseph McGough, for the Beatles' Yellow Submarine (1968).

        by BlueStateRedhead on Wed Mar 27, 2013 at 06:09:38 PM PDT

        [ Parent ]

    •  But isn't this so indicative of the Culture War? (6+ / 0-)

      The whole point is to legislate extremist Christian "values" on the rest of us. So to me, this is but a long line of many Culture-War fights.

      Good for Kagan for not falling for it! It's about time the different branches of the government call this crap out, for what it is.

      If you want to ban homosexuality in your own church or home, that is on you. You can lay it Jesus or whomever, but the rest of us should not be forced to adhere to beliefs that are abhorent, unfair, and destructive to entire portions of our populace, just to appease some big babies who can't be grown ups and learn to live and let live.

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