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

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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.

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

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