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View Diary: Will Calhounism doom DOMA? And is that a bad thing? (103 comments)

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  •  As usual, I'm confused (2+ / 0-)
    Recommended by:
    Armando, Eric Nelson

    Is the federalism argument in THIS case limited to the assertion that DOMA oversteps federal authority in defining what marriage is and isn't and that it's up to the states to do that, or does it also assert that in this particular area of the law, states also do not have the right to restrict marriage to just straight people, per the equal protection clause of the 14th?

    I'm guessing the former, given that the 1st case that had to do with Prop 8 did not seem as likely to be struck down as was DOMA in the 2nd case.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Sun Apr 07, 2013 at 05:47:32 PM PDT

    •  Federalism and the 14th (2+ / 0-)
      Recommended by:
      ER Doc, Eric Nelson

      Never heard that one before.

      I think they are distinct arguments.

      The EPC applies whether the feds have acted in an area or not.

      Interestingly, Verilli spend a bit of time arguing that the federalism position in this case weakens the federal gov't interest here. not sure what he meant by that. It was rather confusing.

      I'd have to review it.

      •  I thought they were distinct too (0+ / 0-)

        Kind of the whole idea behind federalism, thought--this is your domain, this is my domain, sometimes we have to meet at the fence to resolve things or do a handoff, but generally we keep to our side and mine our own business.

        So DOMA was not the fed's call to make per the 10th, but neither was Prop 8 and such, per the 14th, with SCOTUS standing on the fence, adjudicating both.

        We would hope. What states' rights trolls (i.e. Calhounists, although really Jeffersonians) don't realize or acknowledge is that the 10th (i.e. federalism) doesn't give states the right to override the constitution.

        If Escher was a lawyer, he'd understand conservative legal theory perfectly.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Sun Apr 07, 2013 at 06:03:43 PM PDT

        [ Parent ]

        •  The only relation in that (1+ / 0-)
          Recommended by:
          Eric Nelson

          Is that 14th applied the Bill of Rights (through selective incorporation over time) to the states and was an expansion of federal authority. Section 1 of the 14th defines limits on state powers to violate due process and this new right of the people to be free from unequal protection of the laws. Section 5, an often overlooked portion of the 14th Amendment, gives Congress the power, by appropriate legislation, to enforce the amendment. The Court has ruled that Congress' authority under section 5 however is one way. It cannot be used to restrict or abrogate the protections of the 14th Amendment, which is why they based DOMA on the Full Faith and Credit Clause. An attempt to justify it under section 5 would have run afoul of the 14th just as the Title IX Education Amendments of 1972 did in Mississippi University for Women v Hogan.

          "Lesbian and gay people are a permanent part of the American workforce, who currently have no protection from the arbitrary abuse of their rights on the job." --Coretta Scott King

          by craigkg on Sun Apr 07, 2013 at 07:22:33 PM PDT

          [ Parent ]

      •  Verilli was in a tough spot (5+ / 0-)
        Recommended by:
        Samer, Eric Nelson, LuvSet, thetadelta, Adam B

        on the Federalism question.

        On the one hand, it presents a clear path to a win for the side that he was representing... that DOMA Section III is unconstitutional and should be discarded.

        On the other hand, it relies on a principle with which his client, (President Obama,) and likely he himself, (being a liberal legal academic,) violently disagrees... the idea that there are limitations on the power of the Federal government beyond the explicit prohibitions of the Bill of Rights.

        "Enumerated powers" isn't really in their dictionary.

        Professor Somin's full position, at least based on what I've been reading at Volokh, is that Congress has no power to make laws regarding marriage or other interpersonal relationships AND that, while States do have that power, they cannot exercise it to limit marriage to opposite sex couples without falling foul of Equal Protection. The Amicus brief did not address the Equal Protection argument, for two reasons. First, it had been extensively briefed by others, and second, if DOMA was beyond Congress' authority to legislate in the first place, any question of Equal Protection is moot, as they were never allowed to make the law at all.

        --Shannon

        "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
        "Dissent is patriotic. Blind obedience is treason." --me

        by Leftie Gunner on Sun Apr 07, 2013 at 07:56:25 PM PDT

        [ Parent ]

    •  The amici raising this federalism argument ... (0+ / 0-)

      ... haven't pressed the second part of the argument.

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