Skip to main content

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

Comment Preferences

  •  They would... (1+ / 0-)
    Recommended by:
    Dave in Northridge

    I suspect they would be forced to ignore all marriages from stares that have approved gay marriage. If they accepted as valid a document that has a M/F and not one that is M/M I would think the gay couple would have the ability to go to the courts on the grounds of equal protection.

    Am I wrong that section 2 bars LGBT people from even seeking that protection?

    •  You could go to courts now (3+ / 0-)
      Recommended by:
      jpmassar, terrypinder, skrekk

      on Equal Protection.  The point is simply removing Section 2 of DOMA doesn't change anything.  More litigation is needed.

      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 10:11:10 AM PDT

      [ Parent ]

      •  In other words (1+ / 0-)
        Recommended by:

        a law (Section II of Doma) does not supersede the US Constitution.

        But someone has to challenge the non-recognition of same-sex marriages by other states as a violation of the US Constitution.

        But people have been unwilling to do so UNTIL NOW because of serious fear that the Supreme Court would rule against them, leaving a horrible ruling intact for years and years.

        But now the language of the DOMA (Section III) ruling (as Scalia helpfully pointed out) can be used to plausibly argue that non-recognition is a violation of equal protection, etc.  The argument might still lose, but it has a much better chance.  (It would have a much better chance were one of the conservative justices to be replaced before the case reached the Supreme Court by a Obama appointee)

    •  You're wrong, and here's why: (0+ / 0-)

      In Summary:

      • When a court in one state issues a judgment in a lawsuit, including a lawsuit that somehow involves a marriage -- an award on an insurance or wrongful death claim, or the resolution of a custody dispute -- full faith and credit has always required other states to give effect to that judgment, almost without exception.

      • When there are no court judgments involved, and a couple has simply gotten married and wants another state to recognize that marriage for some reason -- the probate of an estate, or equal participation in a public employer's health, insurance and retirement benefits -- the situation is more complicated. These questions have always been treated as a matter of policy for the states to decide, rather than as a matter of mandatory obligation. Some states have taken a liberal attitude toward such recognition, while others have employed a more case-by-case analysis.

      • Historically, states have reserved the right to apply an exception for reasons of public policy when they are asked to recognize an out-of-state marriage, even if their normal rules would otherwise indicate that the marriage should be given effect. But that public policy exception has never been available where judgments by courts are involved.

      The simplest and best example is that of mixed-race marriage.    Full Faith and Credit did nothing to prevent the south from ignoring (or criminalizing) valid out-of-state marriages.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site