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View Diary: A point that should have been raised in DOMA arguments today (39 comments)

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  •  I think DOMA is going down (3+ / 0-)
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    Odysseus, Cassandra Waites, MJB

    It will be very hard for the Supremes (other than Thomas and Scalia and Alito) to argue that the USG has a compelling interesting in singling out gay marriages as deserving special Federal legislation.

    Economics is a social *science*. Can we base future economic decisions on math?

    by blue aardvark on Wed Mar 27, 2013 at 06:47:32 PM PDT

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    •  DOMA is toast, but what about Prop 8? (1+ / 0-)
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      blue aardvark

      Tom Goldstein at SCOTUSblog nicely summed up the dilemma for the Dem appointees plus Kennedy:

      But if DOMA is going to be decided as a federalism case, Hollingsworth becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

      In fact, there is a realistic chance that the Court’s most conservative Justices understood that dynamic from the beginning and for that reason voted to grant certiorari in Hollinsgworth. In effect, they would put the Court in the box fully grappling with the implications of a ruling invalidating DOMA. To then also invalidate Proposition 8, the Court would have to go quite far in applying heightened scrutiny and invalidating the traditional definition of marriage, notwithstanding its professed concerns for states’ rights.

      So the project for Justice Kennedy and the Court’s left seemingly is how to escape the dilemma that Hollingsworth is before them for decision. It is hard to “disappear” a granted case. The more liberal Justices presumably represent four votes to invalidate at least Proposition 8 on equal protection grounds. But four votes get you nothing at the Supreme Court, and Justice Kennedy expressed deep concern at making such a significant ruling at this time. All likely realize that history is on the side of gay-rights advocates, but they disagree significantly on whether that is the same thing as a constitutional mandate, at least at this time.

      I suggested one way out of the Hollingsworth box yesterday – remand the case for further consideration in light of the ruling in Windsor. Much would depend on what the Court said in invalidating DOMA. Another option is to hold that the Hollingsworth petitioners lack standing to appeal. It will be fascinating to see what they do.

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      by MJB on Wed Mar 27, 2013 at 09:56:16 PM PDT

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      •  The real issue is whether agents of government, (1+ / 0-)
        Recommended by:
        blue aardvark

        which is what the Congress is, merely an agent of those who govern, i.e. the people, -- whether agents of government can coerce or deny good behavior, or are restricted to stopping and punishing bad behavior.
        Individuals committing to mutual support is good behavior. The only justification for granting registration is for the convenience of agents of government knowing who's committed to being responsible for whom. It is because it is a convenience to have official registration that various benefits are provided to encourage both the behavior and the registration. Thus, to deny the equal treatment is an unwarranted segregation and deprivation.
        Some segregation is warranted. People with infectuous diseases are properly segregated to protect the community and promote their cure.

        We organize governments to deliver services and prevent abuse.

        by hannah on Thu Mar 28, 2013 at 02:10:53 AM PDT

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      •  but if 5 Justices rule lack of standing (2+ / 0-)
        Recommended by:
        blue aardvark, MJB

        then Prop 8 remains struck down based on decisions in both District and Circuit courts, and same sex marriage in CA is reinstated

        "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

        by teacherken on Thu Mar 28, 2013 at 05:12:18 AM PDT

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        •  I think that's the approach they'll take (0+ / 0-)

          You can't always tell based on questions at oral argument -- and the Obamacare cases are a good example of that -- but I think that's right. The SCOTUS will invalidate Section 3 of DOMA by a 5-4 or 6-3 vote, and they'll punt on Hollingsworth for lack of standing.

          I don't think they can go with Goldstein's suggestion to remand Hollingsworth to the 9th Circuit in light of Windsor, because it's unlikely that the SCOTUS' Windsor opinion will contain any meaningful guidance on how to decide cases like Hollingsworth. Kennedy and/or Roberts are not going to allow Windsor to be decided on the ground that DOMA discriminates on the basis of sexual preference. They are going to require that the decision be based on a holding that the federal government cannot refuse to recognize a marriage that is lawful in the state or country in which it was performed.  (They can't limit it to states only, because Edie Windsor and her spouse were married in Canada.)

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          by MJB on Thu Mar 28, 2013 at 09:45:12 AM PDT

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          •  re Canada (0+ / 0-)

            even though the marriage in the case was done outside the country, if in fact they took a married deduction or advantage of any other marriage benefit under NY State law, does not that serve for the purposes of the jurisprudence relevant to this case?  New York State accepted the marriage as valid, even though it was performed outside of NY State.

            "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

            by teacherken on Thu Mar 28, 2013 at 01:48:44 PM PDT

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            •  It's tricky (0+ / 0-)

              ... but I think the issue is whether the feds are permitted under the constitution to recognize certain marriages that are legal in the jurisdiction where they were performed but not other marriages that are also legal in that jurisdiction. In other words, whether the feds are permitted to discriminate against couples in same-sex marriages.

              Your idea is that it's up to New York, not the feds, to decide whether to recognize marriages from other jurisdictions and the IRS has to defer to what New York decides.  And maybe that's the way it will go.

              But, as Erwin Chemerinsky points out here, that would be a great departure from existing precedent:

              At the argument on Section 3 of DOMA, Justice Kennedy expressed great doubts about the constitutionality of this provision based on federalism concerns.   He emphasized that marriage is something traditionally regulated by the states.   This seems to be an argument based on the Tenth Amendment and the idea that that provision reserves to the states exclusive control over certain matters.

              But not once since 1937 has the Supreme Court endorsed that view.   Since 1937, the Court only has found Tenth Amendment violations where Congress has commandeered states and forced them to enact laws or adopt regulations.   DOMA does not do that.  For the Court to hold that the Tenth Amendment leaves some matters, like marriage, exclusively to the states would be a radical change in constitutional law.


              An easy out, but certainly possible, would be a judgment invalidating DOMA Section 3 but with no majority opinion and a few individual opinions that agree on invalidating the statute but not on the reasons why it is unconstitutional.

              Please help to fight hunger with a donation to Feeding America.

              by MJB on Fri Mar 29, 2013 at 10:17:10 PM PDT

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