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View Diary: Prop 8 Struck Down: The Decision (376 comments)

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  •  Is this issue broad enough to (5+ / 0-)

    make a subsequent SCOTUS ruling in favor dissolve most variations of 'Defense of Marriage' nonsense?

    •  I heard a pundit suggest today (7+ / 0-)

      that other cases--like the recent MA one--were ahead of this one in the queue and might take DOMA down sooner anyway.

      "It's not like she's marrying out of her species or anything," Ms. Lynch said.

      by mem from somerville on Wed Aug 04, 2010 at 06:39:11 PM PDT

      [ Parent ]

      •  The MA case (3+ / 0-)

        seems to me a way to get at the Section 3 federal recognition. I see that as falling first, and then this CA case (potentially) getting at the individual state prohibitions. I'd like to believe there are 5 justices who want to get this over with, rather than dealing with a mess like having couples married federally, but not locally, and all the ensuing conflict of recognition that would ensue.

        Even Dobson's FotF replacement has said (granted indirectly): "The trend is clearly and steadily toward majority acceptance (DOMA is in stall-mode now)."

    •  If this is upheld then this would definitely (6+ / 0-)

      take DOMA down because if it's unconstitutional for the states to limit marriage to opposite-sex couples, then it's going to be unconstitutional for the federal government to recognize only opposite-sex marriages.

      Do not underestimate the potential impact of this ruling because if it is upheld anywhere there are laws that are related to marriage will be applicable, at the local, state, and federal levels.

    •  DOMA? opening another can-o-worms (0+ / 0-)

      While Judge Walker's opinion applies (most correctly, IMO) to California law, its hard to see where this would/will have much of an impact on DOMA - since that (excrable) Act deals with inter-State issues vis-a-vis same-sex marriage as relates to  Federal law: another area entirely.

      But one can always hope...

      •  also (1+ / 0-)
        Recommended by:

        Even if DOMA was struck down, it probably isn't possible to force states to recognize. For example, states have differing standards on cousin marriage, which is held to be constitutional.

        iow, I can't marry my first cousin in state A, move to state B and have it recognized if state B is a no first cousin marriage state.

        it could go the other way like the miscegenation laws and it could be banned everywhere, but for some reason I just don't see that coming. I wish I did, but I just don't.

        Maybe that old bastard Kennedy will surprise me!

        All I've got is an orange blog, three paragraphs, and the truth.

        by Attorney at Arms on Wed Aug 04, 2010 at 07:03:20 PM PDT

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        •  Are you sure about that? (1+ / 0-)
          Recommended by:

          If I remember correctly, one of Judge Tauro's decisions referenced the fact that a marriage in NH between a 13 year old girl and a 14 year old boy would be legally recognized elsewhere despite the fact that the age of legal marriage (with parental consent) in NH is at odds with policy in any other state. I am not an attorney but my recollection on this and similar discussions was that, as a general rule, states will recognize marriages legally performed in other states, subject to very few exceptions, and of course subject to the exceptions provided by DOMA which appear to ripe for challenge.

          •  I wondered the same thing as you (0+ / 0-)

            and then I remembered that Judge Tauro was talking about federal recognition.  He said that the federal government currently recognizes all marriages, except same-sex marriages, regardless of whether the other marriages are valid in all 50 states.

            It had not occurred to me before, but maybe states don't necessarily recognize all of each other's marriages, and we don't know about this because, apart from the well-known gay marriage exception, those other marriages typically involve age issues or biological relation issues (first cousins).  The previous poster is an attorney, so would presumably have some knowledge of this...?

            •  asdf (0+ / 0-)


              You can Google "cousin marriage."

              I think that restriction is absurd as well. The argument that it's for preventing gene pool problems is belied by the fact that it's not illegal for cousins to procreate outside of marriage. Therefore, to me at least, like gay marriage, it's an institutionalization of certain Christian mores.

              I also don't have any problem with polygamy, but most liberals draw the line there.

              All I've got is an orange blog, three paragraphs, and the truth.

              by Attorney at Arms on Thu Aug 05, 2010 at 12:49:17 AM PDT

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              •  I think the cousins restriction is stupid as well (0+ / 0-)

                And weirdly, it's a pretty new taboo.  I like to remind people of that when I hear them frothing about "cousin incest" and whatnot.

                I think polygamous relationships can be difficult to make work, since I don't think most people are wired for that, but I also don't feel it's really my business.  People should be able to form the relationships they want to form.  Marriage between two people is difficult too.  And the same abuses that can occur in a polygamous relationship can and do occur in a conventional marriage too.

          •  no (0+ / 0-)

            I never claimed to be sure, but I'm telling you there is a big difference between killing DOMA and getting, say, Utah to recognize gay marriages internally.

            If it goes down like Loving, then they won't have a choice. But if they don't make it that broad in the end, then it might not.

            I'm not sure about that, but I am also not sure it won't go the other way.

            All I've got is an orange blog, three paragraphs, and the truth.

            by Attorney at Arms on Thu Aug 05, 2010 at 12:46:17 AM PDT

            [ Parent ]

    •  You mean the state based bans? (1+ / 0-)
      Recommended by:
      Adam B

      This is where it becomes complicated. The case, as far as I understand it, won't be that they can't have such laws. The case will be that the states must prove that such laws are not the product of animus against gays as class.  They must show a rational basis for it that's a real rational basis as opposed to the historic definition, which was literally the Court could make up a reason for the legislature or the voting public that was not in the record. Here, what is happening is that the rational basis with teeth is requiring that they actually demonstrate factually that the state's action against the minority group is rational. Of course, if a better set of states brings up arguments in subsequent cases- that meet that higher, but still not intermediate, scrutiny of being rational in fact rather than in theory- (again how I read the law)- then it could pass muster.

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