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View Diary: The SCOTUS Stopped Short of Equal Protection. DOMA Still Hurting LGBT. (20 comments)

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  •  I think that's because of the basis the (2+ / 0-)
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    ord avg guy, TiaRachel

    Court used to find Section 3 unconstitutional.  For all of Justice Kennedy's language, the basic ruling, as a practical matter, is that it is up to the each State to define marriage for itself.  

    As a practical matter, allowing a couple who lives in Mississippi to go to California, get married in California, then return to Mississippi and be considered married by the State of Mississippi would seem to Justice Kennedy, I suspect, as inconsistent with his notion that each state gets to decide what marriage is within that State.  

    I the 4 liberals had had their way, and had declared that the right to marriage, regardless of the gender of the parties, is a fundamental right that must be recognized in all states, the result would be different.  But there clearly were not five votes for that.  Instead, the four liberals could only get Justice Kennedy's vote on the notion that states can decide for themselves what is marriage within that state, and that the federal government cannot decide it for them.  

    Ironically, the decision that gave much joy to supporters of same-sex marriage was based on a notion close to the heart of conservatives -- federalism (the notion that certain  things are the purview of the states and the federal government should not involve itself).  

    •  Sort of. (1+ / 0-)
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      If you take the wording of the decision on its face, although it talks about federalism, it really struck Section 3 due to equal protection/due process.  I'm sure Kennedy would have been just fine with a federalism decision, but I doubt the liberals would have gone along.  So while he nods at federalism, it's not the basis for the ruling.

      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 Thu Jun 27, 2013 at 10:13:24 AM PDT

      [ Parent ]

      •  Seems to me (having read the decision) (0+ / 0-)

        that both are important pillars of the decision.

        And the one can be used as an argument against, and the other as an argument for upholding marriages across state lines.

        It may well again come down to which argument Kennedy will choose to go with two or three years hence if and when the issue comes before the court.

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