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View Diary: Law firm drops House DOMA case, Clement resigns (183 comments)

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  •  They've offered other defenses. (3+ / 0-)
    Recommended by:
    VClib, Rumarhazzit, davidincleveland

    When Obama's DOJ handled the case, it offered, as Judge Tauro explained in Gill:

    In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the "status quo," pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of "marriage" and "spouse" under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits.

    In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may  constitutionally employ in the face of a changing socio-political landscape.

    Which Judge Tauro dismissed, starting here:
    [T]his assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.

    There can be no dispute that the subject of domestic relations is the exclusive province of the states. And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law. The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA  refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest.

    •  And Judge Tauro's dismissal here (0+ / 0-)

      is weak in my view. We should all be wary of "Congress does not have the authority" arguments. Because it almost always does.

      The problem is with how Congress exercised that authority.

      Ok, so I read the polls.

      by andgarden on Mon Apr 25, 2011 at 12:14:44 PM PDT

      [ Parent ]

      •  well, there's more. (4+ / 0-)
        By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process. Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law....

        And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire. Though this court knows of no other state in the country that would sanction such a marriage, the federal government recognizes it as valid simply
        because New Hampshire has declared it to be so.

        •  Historical practice doesn't obviously amount (0+ / 0-)

          to a limit on Congress's power. The unique exercise of this power does make for a more compelling Equal Protection (not to mention Due Process) argument, though.

          Ok, so I read the polls.

          by andgarden on Mon Apr 25, 2011 at 12:20:35 PM PDT

          [ Parent ]

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