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Supreme Court Associate Justice Elena Kagan
Justice Elena Kagan
The Defense of Marriage Act's defenders have been trying to claim that the law isn't about bigotry and denying people the right to equality. No, no, see, it's about supporting traditional marriage, and doesn't that just sound a lot nicer? But when Paul Clement, the pro-DOMA lawyer hired by House Republicans, tried to soft-pedal thusly, Supreme Court Justice Elena Kagan wasn't letting it go by unchallenged.
“All these federal statutes were passed with the traditional definition of marriage in mind,” Clement said. “What Congress says is, ‘Let’s take a time out. This is a redefinition of an age-old tradition.’”
Kagan responded that, first of all, DOMA violated another tradition, saying, “The only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state.” And, uh, also this:
A short time later, Kagan read aloud from the House Judiciary Committee report on DOMA. “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality,” she said, quoting the report.
That wasn't all members of Congress had to say along those lines, either. Rep. Steve Largent (R-OK) wanted Congress to "Look at history. No culture that has ever embraced homosexuality has ever survived." While Rep. Roscoe Bartlett did invoke "traditional marriage," he said that in the context of spouting off about "the decline of moral standards and values."

So, yeah, while Paul Clement claims that that's not the spirit in which he and today's House Republicans are defending the law, it's kinda hard to deny that the intent of passing DOMA was less about a misty appeal to tradition and more about bigotry. Just as Kagan said.

Now if only the Supreme Court would allow video of hearings so we could see these moments in action.

Originally posted to Laura Clawson on Wed Mar 27, 2013 at 12:30 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  I posted this in another thread, but (56+ / 0-)

    I was really happy with the Solicitor General's jab on this point:

    This statute is not called the 'Federal Uniform Marriage Benefits Act'; it's called the 'Defense of Marriage Act'. And the reason for that is because the statute is not directed at uniformity in the administration of Federal benefits.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Wed Mar 27, 2013 at 12:41:56 PM PDT

  •  What about civil unions and federal benefits? (18+ / 0-)

    Suppose SCOTUS strikes down DOMA, what happens to couples in a state like Colorado? Colorado has a constitutional amendment banning same sex marriages BUT this year the legislature passed a bill allowing civil unions and it becomes effective May 1, 2013.

    Will these couples be able to avail themselves of those 1,100 federal benefits? I don't think so but I haven't seen this addressed. All the coverage I've seen or read talks about marriages. Will couples in civil unions have to go to court to get recognition that their union is the same as a marriage?

    •  The whole argument was depressingly (10+ / 0-)

      narrow.  They barely even scratched the subject of whether DOMA involved an equal protection violation, or whether there was a level of scrutiny appropriate for sexual orientation.

      That being said, our side put up a good fight today (better than yesterday, I think) and kept trying to refocus the discussion on these points.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Wed Mar 27, 2013 at 12:51:03 PM PDT

      [ Parent ]

      •  Another question or observation (8+ / 0-)

        Massachusetts is a marriage equality state but say I live in a state that doesn't allow it but I go to Massachusetts and fulfill whatever is required to get a marriage license. I get married in Massachusetts and move back to my home state.  Now I assume that my marriage will be recognized by the federal government and I can get all those benefits. Right?

        My marriage would not be recognized in my home state so I would still have to file state taxes as single and may even have issues regarding things like hospital visitation or medical decisions for an incapacitated partner, etc. And what happens if the relationship deteriorates and we decide to divorce?

        I just don't believe that marriage is an issue that should be dependent upon the state in which I live. Maybe it made more sense when the big issues may have been age and residency but no longer after the Loving decision.

        •  Not quite: (7+ / 0-)

          In this scenario, if you're a resident of the other state, you would still not be considered married even by the federal government, because you would be subject to the laws of your own state.   If your own state considers you unmarried, so would the feds.

          It'd be nice if we got a Loving-style decision that ended this once and for all, but it doesn't look like it from the oral arguments, unfortunately.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Wed Mar 27, 2013 at 01:20:49 PM PDT

          [ Parent ]

          •  But those aren't the only considerations (7+ / 0-)

            The bigger consideration for the SC, IMHO, is the military one.

            A same sex couple gets married in a state that allows it. If they were any other couple, the military benefits would be automatic - bring in the marriage license, get the ID card, medical care, BX privileges, etc.

            But now, that's not possible, and THAT is out and out discrimination. That's what they should be looking at.

            I know this case isn't about that. But that's the case that's going to change things, and I know it's coming.

          •  Well that's depressing (4+ / 0-)
            Recommended by:
            viral, pico, alice kleeman, mmacdDE

            So if my address says South Carolina but my marriage license says Massachusetts I'm SOL but if I move to Massachusetts or another state that allows same-sex marriage, all his well.

            So this would also be the case of a couple who resided in Massachusetts and got married. Now time passes and a spouse's company transfers them to a state that doesn't allow same-sex marriage. If they move they lose all the benefits of marriage.

            I may be overthinking this but there are way too many complications for marriage not to be a universal right.

            •  Not quite so depressing (2+ / 0-)
              Recommended by:
              BlueSue, True North

              Once you are legally married, merely moving your residence should not change that fact or work an "involuntary divorce" of sorts.  The new state of residence gives "full faith and credit" to the former state's marriage law, even if you could not in the same circumstances marry in the new state.

              •  Not necessary. There's the public policy (3+ / 0-)
                Recommended by:
                BlueSue, pico, mmacdDE

                exception to the FFC clause.  It's not a done deal.  Take pre-Loving Virginia.  They arrested the Lovings and banned them from the state.  Moving from one to another won't automatically force them to recognize it.

                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 Wed Mar 27, 2013 at 01:57:57 PM PDT

                [ Parent ]

                •  It won't UNLESS (0+ / 0-)

                  The sc rules that states must abide by the full faith and credit clause of the constitution and recognize all LEGAL marriages, regardless of where they were performed.

                  A straight couple can get married in canada, or Jamaica, or Mexico, or the Bahamas and there's no question that they're legally married. A gay couple that gets married in Canada, and they might as well not have bothered UNLESS they live in a state that recognizes it.

                  That's crazy, and that's exactly the situation that was supposedly resolved by Loving.

                  Which was, IMHO, the most appropriately named case ever decided by the court.

            •  No, if legally married in MA, SC *MUST* recognize (5+ / 0-)

              the marriage. You would certainly have a "Federal Case." Article 4 of the Constitution (not even one of those pesky Amendments) requires

              "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
              If you are denied any benefits due to different-gendered couples, then you can (and should) sue. The state may prevent same-gendered couples from marrying IN the state, but they can't ignore the legal act of another state.
            •  on a related note (0+ / 0-)

              Apparently 19 states + DC allow first cousins to marry. I know this isn't a DOMA issue, but will the feds recognize that marriage if they move to one of the 31 other states?

              And then there's the whole minors getting married thing.

              These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

              by HugoDog on Wed Mar 27, 2013 at 02:23:29 PM PDT

              [ Parent ]

          •  which could increase incentives (3+ / 0-)
            Recommended by:
            msmacgyver, viral, doraphasia

            on gay couples to move to gay-friendly states, benefiting those states' economies.

          •  If legally married in MA, legally married in CO (7+ / 0-)

            The Constitution's "full faith and credit" clause:

            Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
            requires that a legal marriage in one state must be recognized in another. One of the major reasons for DOMA was to provide cover for states that wanted to discriminate against other states providing for marriage of same gendered individuals.

            Assuming the DOMA is stricken, then we'll move on to various "full faith and credit" suits addressing just the question of how does a non-marriage equality state deal with residents legally married elsewhere. Seems pretty clear to me that once those cases reach the SC they'll have to effectively allow nationwide marriage equality. Same-gendered couples may not be able to receive a marriage license in Texas, for example, but if married in Maryland (yeah!) they can obtain married benefits (if they still exist) in Texas.

            Texas has already granted a divorce of 2 men married in Massachusetts, so part of the equation is in place.

            •  And it's Texas. Doesn't the irony make it extra- (0+ / 0-)

              true? An extra potent legal precedent?

            •  No, it does not: (3+ / 0-)
              Recommended by:
              AUBoy2007, mmacdDE, BlueStateRedhead

              if you move to a state that legally bars recognition of same-sex marriage, it does not matter if you were married in another state.   This falls well under the traditional policy exception against FF&C, and either 1. the Supreme Court has to decide otherwise, or 2. the states have to legalize marriage on their own.   Repealing DOMA isn't enough: DOMA section 2 only reiterates what's already been the constitutional reality about interstate marriage.    

              (There's a long history of jurisprudence on this issue, and needless to say, it's often contradictory.  e.g, and most relevant for this case, some parties have sued and won FF&C claims, and others have lost, with no rhyme or reason. See here pp4-6 [pdf] for a ton of examples.)

              The state of Texas, by the way, does not allow same-sex divorce.  The only successful case (Naylor/Daly) was successful because the state did not appeal the ruling before the statute of limitations ran out, and even now Texas is still challenging the ruling.  The actual case that's (still) making its way through the system, In re: J.B. is still being decided, with the Texas government - and the 5th Circuit - firmly against granting the divorce.  If SCOTUS doesn't take the case, then the 5th Circuit's ruling stands and divorces cannot be granted in Texas.

              And they most certainly cannot receive marriage benefits.  I don't know where you're getting this information from.

              Saint, n. A dead sinner revised and edited. - Ambrose Bierce

              by pico on Wed Mar 27, 2013 at 03:12:38 PM PDT

              [ Parent ]

          •  Not so fast... (1+ / 0-)
            Recommended by:
            pico

            "If your own state considers you unmarried, so would the feds."

            That question will be the issue of a whole new round of marriage equality cases in the very near future. It goes to Section 2 of DOMA and to the issue of Full Faith and Credit. If, as BlueSue wrote, she fulfilled the requirements for a marriage license in a marriage equality state, and got married lawfully, that license does not become null and void simply because she moves to another state. And the extent to which a non-equality state can refuse to recognize her as a married person remains to be litigated. In any event, it is doubtful the Feds would require her to deny her own status as a married person, simply because she moved. It may be that Arkansas, for example, may not grant her state benefits, but calling her "single" will have Federal implications. Before we even get to changing states of residence, what about travelers? If a married same sex couple gets into a car accident in a non-equality state, can that state treat them in the hospital as legal strangers? Or if they sue the other driver, can the state courts treat them as strangers in a legal proceeding?

            This is headed for court the day Section 3 comes down. Count on it.

        •  You're right (1+ / 0-)
          Recommended by:
          BlueSue

          it will make for a lot of confusion, esp. with civil unions.

          But the Court needs more cases to make these rulings...or at least to push state legislatures.

        •  aoeu (0+ / 0-)

          Assuming section 3 goes away but the rest does not...so a couple marries in Massachusetts, one of them is a federal worker so both have access to federal health insurance programs. They move to a hate-state. Health insurance goes away?

          All my rights reserved.

          by TealVeal on Wed Mar 27, 2013 at 01:43:21 PM PDT

          [ Parent ]

          •  Nobody knows, really. (0+ / 0-)

            But the usual presumption is that you're subject to the laws of your state of residence.  Except another slew of lawsuits on this issue, though.

            Saint, n. A dead sinner revised and edited. - Ambrose Bierce

            by pico on Wed Mar 27, 2013 at 03:13:24 PM PDT

            [ Parent ]

      •  Here's a lawyer's take on the narrowness issue (6+ / 0-)

        of the arguments:

        Of course, I would love to see this case, as well as the Prop 8 case, decided on Equal Protection grounds, because I believe both Prop 8 and DOMA don't pass even the lowest level of Equal Protection scrutiny, let alone the highest level of scrutiny that I believe should be applied.

        But it is a time-honored principle of constitutional decisionmaking that a court should not reach a constitutional issue unless it is necessary to do so to decide the case.

        Further, if there are reasons why the case should not even be before the Court, the case or appeal should be dismissed without reaching the merits even if both parties are left without the relief they seek. Lack of "subject matter jurisdiction" due to the lack of a live "case or controversy," otherwise known as "lack of standing," is a classic basis for dismissing a case or appeal, even when (unlike the Prop 8 and DOMA cases, the nominal plaintiffs and defendants strenuously disagree on the outcome).  

        Dismissals for lack of subject matter jurisdiction/standing/justiciability rest on the premise that, because rulings on constitutional decisions have such far-reaching consequences, such issues should only be decided when harm to one or more of the parties cannot be avoided except by reaching the merits. The courts' constitutional decisionmaking resources should be conserved, under these principles, and saved for cases in which it "really" matters. And for these purposes, "really matters" means not just that a decision would decide the rights of a whole mass of people who are not before the court. "Really matters" means that both of the actual parties' rights will be affected.

        Now, clearly in the Prop 8 and DOMA cases, the rights of the plaintiffs will be affected by a ruling.  The Prop 8 plaintiffs cannot marry in California.  The DOMA plaintiffs are being denied federal tax and other benefits. But the defendants -- the State of California and the US government, respectively -- agree with the plaintiffs that the provisions in question are unconstitutional.  The intervening parties that have taken up the cudgels of defending Prop 8 and DOMA will not be benefitted if they win the case, or harmed if they lose case, in any but the most intangible, inchoate way. So, the principle of conserving constitutional decisionmaking resources suggests that the California and US governments should just stop enforcing Prop 8 and DOMA, in accordance with lower court decisions overturning them. That would save the Supreme Court's resources, and still permit California same sex couples to marry, and permit legally married same sex couples across the nation to receive federal benefits available only to married couples.

        Why haven't they done so?  That question got a lot of attention from the Justices, especially but not exclusively from the conservative ones, yesterday and today.  In particular, this morning the Executive Branch came under fairly withering judicial criticism for not just standing down from enforcing DOMA.  Both Scalia and Kennedy questioned why the Executive Branch didn't just have the courage of its convictions and refuse to enforce a law it deems unconstitutional.  Indeed, these justices seemed to suggest that the Executive could decide, even without a lower court ruling, that a statute was unconstitutional and refuse to enforce it.

        Well, one reason might be that if a US president refused to enforce DOMA, he might well be impeached by the House. And then the Senate would have to "try" him on the charge of failing to faithfully execute the laws. And absent a judicial ruling, a Senate (perhaps not this one, but certainly a hypothetical Senate run by an opposition party) could convict a president for not enforcing what it considered to be an important statute.

        Breyer and Alito (!) suggested that a chief executive had an interest in obtaining the highest appellate ruling he could before deciding not to enforce a duly passed statute.  But the core conservative justices seemed to think (not that this was explictly stated) that the chief executive should have been willing to risk impeachment and conviction by acting unilaterally to stop enforcing a law that the Executive Branch unilaterally decided was unconstitutional.  

        Assuming they get past the standing issue, the justices could also "conserve" constitutional decisionmaking resources by deciding the DOMA case on federalism grounds rather than Equal Protection grounds. This, I think, is what will actually happen with the DOMA case. Now, one could say that deciding based on federalism grounds -- that is, that the federal government intruded upon the powers reserved to the states in excluding from the federal definition of marriage certain couples legally married under state laws -- would not really conserve constitutional decisionmaking resources, because federalism is itself a constitutional issue. But the principles underlying such a federalism ruling wouldn't break new constitutional ground.  By contrast, resolving the issue of whether sexual orientation discrimination is subject to ordinary ("rational basis") or strict ("compelling state interest") scrutiny would require making new constitutional law. So the conservation principle would still be served by such a ruling.

        As I said at the outset, I think the Court could decide it has standing. But given the traditional reluctance of the Court to make new law if it can avoid doing so, couple with the reluctance of even the conservative justices to write an opinion that they must know will someday be seen as more like Plessy v. Ferguson than Brown v. Board of Education, I think that they will punt, if not to standing, than to federalism.

        •  A huge hole in the "just stop enforcing DOMA" (2+ / 0-)
          Recommended by:
          litigatormom, basket

          argument---apparently suggested by Roberts---is (in addition to possible impeachment) that the next president would have the option to just start enforcing the law again.

          Kind of amazing the the Chief Justice of the United States would suggest that the way to deal with an unconstitutional statute is to ask the nice president not to enforce it.

          Resist much, obey little. ~~Edward Abbey, via Walt Whitman

          by willyr on Wed Mar 27, 2013 at 02:51:18 PM PDT

          [ Parent ]

          •  Yes, that is a big hole (1+ / 0-)
            Recommended by:
            basket

            Of course, if a subsequent president decided to enforce it again, the executive branch would be defending the law in the next lawsuit, ensuring there is a case or controversy.

            The fact that we don't have presidents-for-life also pokes a hole in Roberts' assertion that the proper thing for a president to do if s/he thinks a law is unconstitutional is to not sign it.  That doesn't help the president if the law was signed by a predecessor.

        •  Does a decision based on federalism mean (1+ / 0-)
          Recommended by:
          basket

          DOMA is struck down (at least section 3) because it's up to the states, not congress, to define marriage? So couples legal marriages will be recognized for federal benefits based on their state's definition?

          (Then there's the complicating issue of couples legally married in one state moving to another where their marriage is not recognized.)

          •  If DOMA is struck down on federalism grounds (3+ / 0-)
            Recommended by:
            basket, mmacdDE, BlueStateRedhead

            then states will define who may be granted a marriage license within their respective borders.

            As for what happens if a same sex couple were to move to a state that does not recognize marriage, the answer is, it depends. Traditionally, states have recognized any marriage performed validly under the laws of the state or country where the couple was married.  For example, first cousin marriage isn't legal in all states, but first cousins married in a state where it is permitted are considered validly married if they move to a state where a marriage license are not issued to first cousins.  The state would grant "full faith and credit" to the marriage licenses issued by sister states, just as would enforce civil judgments issued by the courts of other states, even if the judgment arises under law that doesn't apply in the enforcing state.  

            When it comes to same sex marriage, it's a little tricker (although of course it shouldn't be). For example, New York State recognized same sex marriages legally performed elsewhere even before it began issuing marriage license to same sex couples a couple of years ago. Indeed, Edie Windsor has standing in this case precisely because NY recognized her 2007 Canadian marriage to Thea Speyer even though same sex marriages could not be performed within the state.  By contrast, some states have passed laws explicitly saying that they will not recognize same sex marriages performed in other states.  I think the better view would be that if DOMA is struck down, a same sex marriage would still be treated as a valid marriage for federal purposes even if the couple moved to a state where they could not have been married in the first place. But to the extent that there were state law benefits for married couples, whether they would qualify for those would depend on whether the state recognized ALL sister state marriages, or excluded same sex marriages from recognition.

        •  you make me feel so smart, there's a conxtitution (0+ / 0-)

          .....to be unxerstood and Ica be alittle bit part of it. Thnx litmom. Have you thgt of thebench iin your future?
          Sorry for fat fingered typos

          "Are you bluish? You don't look bluish," attributed to poet Roger Joseph McGough, for the Beatles' Yellow Submarine (1968).

          by BlueStateRedhead on Wed Mar 27, 2013 at 06:09:38 PM PDT

          [ Parent ]

      •  But isn't this so indicative of the Culture War? (6+ / 0-)

        The whole point is to legislate extremist Christian "values" on the rest of us. So to me, this is but a long line of many Culture-War fights.

        Good for Kagan for not falling for it! It's about time the different branches of the government call this crap out, for what it is.

        If you want to ban homosexuality in your own church or home, that is on you. You can lay it Jesus or whomever, but the rest of us should not be forced to adhere to beliefs that are abhorent, unfair, and destructive to entire portions of our populace, just to appease some big babies who can't be grown ups and learn to live and let live.

    •  I doubt the Federal Government will (8+ / 0-)

      consider "civil unions" as marriages for the purpose of federal law.

      So yeah, future court battles will be involved.

      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 Wed Mar 27, 2013 at 12:56:07 PM PDT

      [ Parent ]

      •  Federal law & gov't are unfortunately not a single (4+ / 0-)

        entity.  The entity that most people interact with regularly is the IRS, and the IRS has long held that, DOMA aside, if it doesn't use the M-word, it's not a marriage for their purposes.  (This actually came up, I believe, when it came to domestic partnerships, but I'm pretty sure it applies to civil unions as well).  So without DOMA, the IRS will begin to treat a Massachusetts married gay couple as married for tax purposes, but not a "civil unioned" couple.

        A lot of big corporations have begun to treat folks with civil unions as married and are eating the additional cost in providing benefits (e.g. vis-a-vis their health insurance provider(s)); this has become extremely common on the West Coast, in the IT industry in particular.  But that's a development on the private side.

        To really unravel the onion will take a long time; even if a Big Bang full equality decision comes down that both eliminated DOMA and mandated 50-state equal marriage (I'm not quite holding my breath, but we'll see... I don't think the Big Bang facts are before the Court yet, and for good reason - we could end up with a Casey and regret it), it could take a year or more just for each agency to go through its CFRs and figure out what has to be changed, submit the changes for public comment, renegotiate contracts for benefits, etc. etc.  In the meanwhile, a lot of these benefits would probably be provided ad hoc as most of the agencies would likely seek to do good faith compliance while they peeled back their particular onion, particularly if that kind of ruling comes down during a Democratic administration.

        So, you're right, depending on how it comes down, people won't wake up the next day and have all federal issues resolved, even with a fully positive ruling.

        "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

        by auron renouille on Wed Mar 27, 2013 at 01:54:47 PM PDT

        [ Parent ]

        •  On the health insurance coverage (1+ / 0-)
          Recommended by:
          basket

          When you say the corporations are "eating the additional cost" it must only be in premium because even if DOMA is overturned, as long as civil unions aren't treated the same as marriage there are still issues:

          1. The company cannot take a tax deduction for the portion of the cost of any benefit given to the employee's civil union partner.

          2. The value of that benefit coverage for a civil union partner must still be included in the employee's W-2 as taxable income.

          That's how it is now for those married same sex couples and it seems that's how it would remain for those in civil unions.

          •  Yup, each state's issues are different. (2+ / 0-)
            Recommended by:
            basket, BlueSue

            Sounds like you know more than me so I'll definitely defer to you on the specifics but California presents unique problems - we've got legally married people, post-Prop 8 civil unioned people, out-of-state domestic partnerships, Canadian marriages if the company brought in talent from BC etc... I don't know the specifics at all of how tech companies handle it, just know that it's become common for companies in the Bay Area that offer strong benefits packages to absorb some of those costs both as a matter of ethics and as a way to attract and keep talent.  But you're absolutely right, every couple presents unique problems and the companies can't always totally eliminate the potential tax penalties, particularly vis-a-vis earned income.  I think a common cost that they do eat is, for instance, insurance companies not giving family discounts because the couple isn't actually married, that sort of thing - that's what I commonly heard about.  But I'm no longer in CA so I'm not up on the latest on these things.

            "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

            by auron renouille on Wed Mar 27, 2013 at 03:38:44 PM PDT

            [ Parent ]

    •  My question then is (3+ / 0-)
      Recommended by:
      BlueSue, milton333, alice kleeman

      is a Civil Union not equated with "marriage" or is "marriage" only in a church, or under some religious ceremony, or signed on by a specific person?   I don't know the law and am honestly asking.  What's the difference?

    •  I think the Federal benefits (0+ / 0-)

      granted under marriage would pertain only to those who are married and not to those who have civil unions...that sounds idiotic I know; however, if those who have civil unions choose to go to another state to be married, the Federal benefits would convey to them.

      When someone is impatient and says, "I haven't got all day," I always wonder, How can that be? How can you not have all day? George Carlin

      by msmacgyver on Wed Mar 27, 2013 at 01:35:21 PM PDT

      [ Parent ]

  •  Let me offer a historical parallel if I may (21+ / 0-)

    pre Loving v. Virginia, in 1967, when 16 states still not only banned mixed race marriage, but in the case of Virginia were willing to prosecute those who go legally married in states which allowed i bu returned to Virginia, those marriages were fully recognized under Federal law for tax and all other purposes.

    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

    by teacherken on Wed Mar 27, 2013 at 12:49:55 PM PDT

  •  Sometimes, I think it is exactly "tradition" (29+ / 0-)

    that scares them: were my partner alive and well, we'd be in the home stretch of putting together a large and hyper-traditional wedding with a guest list of over 250 people, professionally printed and very traditional invitations, a ceremony in a Cathedral complete with choir and Holy Communion, a reception catered by our highly culinarily sophisticated church community, and a week in Quebec City to recuperate. That's about as traditional a wedding as one could possibly imagine, and that's what scares them: a wedding like that, in a church even, traditional in every way except that the two people being married are of the same gender.

    The very idea of two gay men having a wedding like that is what disgusts them. I'm convinced of it.

    By the way, since the wedding is obviously not going to happen, we'll never know if our summer neighbor John Roberts would have attended. He and his lovely wife received an invitation, along with many of the other summer residents of The Rock. You read that right: the Chief Justice was invited to our wedding and it wasn't a stunt--it felt rude to leave him out when many of the other neighbors were invited.

    I wonder if he thought of that invitation on the bench, especially since his gay cousin was present for the arguments yesterday.

    What is truth? -- Pontius Pilate

    by commonmass on Wed Mar 27, 2013 at 01:09:02 PM PDT

    •  I convinced (4+ / 0-)

      they are squeamish about teh buttsex. That's it, in a nutshell (so to speak, lol). The mechanics of the thing make them uncomfortable, but since personal uncomfortableness isn't the basis of law they have to base it on something else, "morals" and "religion" and whatever other hogwash they can throw and see what sticks.

      I'm so sorry you and GMB2 didn't get your wedding, it would have been lovely. Go to Quebec City anyway, it's gorgeous.

      "No one has the right to spend their life without being offended." Philip Pullman

      by zaynabou on Wed Mar 27, 2013 at 01:28:48 PM PDT

      [ Parent ]

    •  You show perfectly why DOMA is unconstitutional. (4+ / 0-)
      Recommended by:
      viral, commonmass, doraphasia, GreenMother

      I went to the wedding of two ladies over ten years ago. It was performed by their Rabbi and it seemed as though half the congregation was there. It was a beautiful ceremony. Why hasn't some church or temple filed against DOMA on the grounds that it violates their religious freedom. They are federally recognized and tax exempt. Why are their marriages not recognized? Is that not a basis under which to challenge DOMA?

      That passed by; this can, too. - Deor

      by stevie avebury on Wed Mar 27, 2013 at 01:39:52 PM PDT

      [ Parent ]

      •  YES! THIS! And a truly outstanding point (2+ / 0-)
        Recommended by:
        stevie avebury, commonmass

        Please tell me that you remember this Rabbi and perhaps that should be filed in some kind of amicus brief?

        Because that further goes to show religious bigotry being perpetuated by the US Government and government officials who oppose gay marriage on the sole basis of religion.

        Which if memory serves me correctly, violates the first freedoms of other American Citizens who might be of a different faith, or may not be religious at all.

        The government should not be favoring religion over non-religion and it especially shouldn't be favoring one particular religion above all others, either.

      •  How does it violate their religious freedom? (0+ / 0-)

        You just said they preformed the marriage.

        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 Wed Mar 27, 2013 at 02:45:38 PM PDT

        [ Parent ]

        •  This is an example of the government choosing (0+ / 0-)

          between religions and promoting the policies of one over another. The marriage that this temple performed should have been valid and recognized by the government if the group itself is recognized. The government refuses to recognize the churches right to marry the couple because it will upset some other church. How is that equal protection? How can the government legislate that one religious institution be able to prevent the rites of some other religion from being recognized? That is not freedom of religion. That is the government picking a religion.

          That passed by; this can, too. - Deor

          by stevie avebury on Wed Mar 27, 2013 at 05:21:48 PM PDT

          [ Parent ]

          •  It's not the church that grants legality (1+ / 0-)
            Recommended by:
            AUBoy2007

            It's the state.

            As you said, their temple had no problem with them being married, and the only reason it wasn't legal is because the STATE wouldn't grant them a license.

            This should have nothing to do with getting married in a church or other house of worship. It has to do with the legality of the marriage.

            And that is an issue for the STATE.

    •  I'm sorry (3+ / 0-)
      Recommended by:
      commonmass, doraphasia, GreenMother

      that you didn't get to have that big traditional wedding. You both earned it.

      (Is it time for the pitchforks and torches yet?)

      by PJEvans on Wed Mar 27, 2013 at 01:40:50 PM PDT

      [ Parent ]

  •  In other words (12+ / 0-)

    Kagan substantiates animus was the reason (and the only reason) the law was passed.

    Under that (I don't think the Court will go this far) they could strike ALL of DOMA down.

    I do see a 6-3 ot a 7-2 striking down section 3, though.

  •  Defense of marriage from what? (8+ / 0-)

    If anything, gays who want to marry are defending the idea of marriage.  Two people in love trying to make a life together as a couple.

    The theocratic idiots that oppose marriage equality are medieval.  Would they have opposed arranged marriages between people not in love because it benefited their parents somehow?  This really attacked marriage by using it for wealth or power.

    May all the defenders of DOMA get time transported to a time when their beliefs prevailed.  Have fun fools.

    Daily Kos an oasis of truth. Truth that leads to action.

    by Shockwave on Wed Mar 27, 2013 at 01:15:43 PM PDT

    •  Has anyone ever run divorce stats on "traditional" (1+ / 0-)
      Recommended by:
      Shockwave

      marriages versus same-sex marriages?  I'll be there would be some interesting findings there.

      If the plutocrats begin the program, we will end it. -- Eugene Debs.

      by livjack on Wed Mar 27, 2013 at 02:43:09 PM PDT

      [ Parent ]

      •  It's too early to tell. (1+ / 0-)
        Recommended by:
        Shockwave

        Yes, same sex divorces happen at a much lower rate, but the people getting married are drastically different - they're usually people in long-term stable relationships who finally have access to marriage who aren't likely candidates for divorce.

        We have to give it some time before we could even begin to compare.

        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 Wed Mar 27, 2013 at 03:40:05 PM PDT

        [ Parent ]

  •  Original intent (9+ / 0-)

    Remember this is Scalia's "originalist" doctrine.  It is why yesterday  he asked when did same-sex marriages because constitutional.   The Constitution, for him, is a dead document and judges must make rulings on the original intent of the laws.

    Kagan has just set up her respond to Scalia's horseshit.

    [Medicare, and Medicaid, and Social Security] do not make us a nation of takers; they free us to take the risks that make this country great.

    by MoDem on Wed Mar 27, 2013 at 01:16:25 PM PDT

  •  By the way, when was USA supposed to be an Empire? (5+ / 0-)

    This weird thing about 'no Empire which embraced homosexuality survived' -- first, no empire of any type 'survived'.

    Rome, Incan, Mayan -- they all eventually perished, or if you want to argue it, became a mere nation-state, as China did.

    Also, when did it become part of the American Dream and Founding Fathers and CONSTUSHUN to be an "Empire" which, I dunno, lasted forever?

    (This is a point on their rhetorical embrace of the notion of a perpetual Empire as part of America surviving;  the USA as a nation-state having its power elite establishment imposing its will forcibly upon the world, well, that's mere actual imperialism.  We're talking the rhetorical variety here.)

    •  It's much more likely (5+ / 0-)

      that the US will perish at the hands of a Big Bank or Big Oil than it will due to same sex marriage.

      Wanna talk about immoral stuff?  How about the latest mortgage crisis?

    •  Well in the theology of those who push this junk.. (1+ / 0-)
      Recommended by:
      el cid

      The only reason that the U.S. is allowed to exist is IF we obey their interpretation of Biblical Law as per the KJV.

      Otherwise divine wrath will be turned against us [see theodicy comments about 911, Katrina, grass fires etc.,].

      They believe that these other great civilizations perished, not simply because of entropy, or due to any kind of normal, scientific explanations like natural disasters [not caused by angry gods], but because they were Pagans, they had a different moral code [which in by modern medievalist terms equates to no moral code], and were peopled entirely with souls damned to hell for not being saved.

      So Homosexuality being allegedly embraced in these cultures is but one of several "mortal" sins that will end an empire or civilization.

      Its ritualism at it's base. As long as society is successful, then god is happy with them. If society has issues, then a scape goat must be found, unbelievers must be expelled to restore cosmic harmony. Today it's homosexuals, but its just as often women, other religions, people of different racial extractions or who have "funny" accents.

      It's a great way to avoid dealing with the true underbelly of society, while feeling like the action one is taking goes to the greater good.

    •  they ought to spend more time (1+ / 0-)
      Recommended by:
      Brown Thrasher

      reading history that hasn't been dumbed down for bible school students.
      Two hundred years, and we're still having trouble with people who don't get 'federal republic with representative democracy'. Or even plain 'democracy' - look at the voter-suppression efforts these same congresscritters love so much. That's far more dangerous to the country than same-sex marriage.
      We have a long, long time before we can compare ourselves to thousand-year-old empires like Rome.

      (Is it time for the pitchforks and torches yet?)

      by PJEvans on Wed Mar 27, 2013 at 02:35:53 PM PDT

      [ Parent ]

  •  I am kinda sorry to see DOMA go down. (1+ / 0-)
    Recommended by:
    stevie avebury

    Marriage equality was one of the most obvious and straightforward ways to differentiate and defeat Republicans at the polls. I thought it would be worth another election cycle, but then again, the abortion issue hasn't gone away either.
    I hope that as Republicans have to accept marriage equality (even Bill O'Reilly now seems to be pitching it as Fox tries to reorient from whacked tea party politics) to stay competitive, this drives a wedge in the GOP between the right-wing Christian voters and the plutocrats.

    "You can die for Freedom, you just can't exercise it"

    by shmuelman on Wed Mar 27, 2013 at 01:29:15 PM PDT

  •  Words fail; (2+ / 0-)
    Recommended by:
    Farlfoto, doraphasia

    There's just is no bottom to the constructs of rhetoric that make no rational real-world sense.  The argument that's made frequently is that "marriage" is defined as Man+woman; so therefore it's just a word-game, not a matter of suppressing someone's rights.

    So what if a word like "citizenship" were gender-specific?  "Sorry, you can't be a citizen, because "citizenship" only refers to-, . . " Sure, that makes everything O.K.

    Since the senator who introduced DOMA into the senate was Don Nickles (R-Okla.), a member of the fruit-loop, rightwing "Family," of house on C-Street fame, it's impossible for me to have any respect for these goofs.

    "After the (job losses) and (austerity) they won't be the same human beings you remember. Slaves?. . let's just say, they'll be satisfied with less" -Naomi Klein's Shock Doctrine, as explained by Ming the Merciless.

    by Softlanded on Wed Mar 27, 2013 at 01:32:56 PM PDT

  •  some people just make a tradition (1+ / 0-)
    Recommended by:
    lcbo

    of bigotry.  Ask any red stater with a confederate flag in the truck window.

  •  isn't elena kagan (2+ / 0-)
    Recommended by:
    auron renouille, doraphasia

    awesome? and people said she would not be on "our" side lol

    Talk about some on this site trashing everything Obama does or not do. hmmmm

  •  Ah, "Tradition" (4+ / 0-)
    Recommended by:
    doraphasia, lcbo, Brown Thrasher, mmacdDE

    Just like slavery, Jim Crow, and the ban on interracial marriage and being gay itself.

    You may think that. I couldn't possibly comment.-- Francis Urqhart

    by Johnny Q on Wed Mar 27, 2013 at 01:35:27 PM PDT

  •  What Is Really Sad Is That Attorneys On All Sides (4+ / 0-)

    had to pretend today that there was no animosity by the congress and president in passing this law.

    Even when trying to undo this discrimination, we have to cowtow to the bigots and tell them they weren't really bigots.

    Scalia was having an orgasm browbeating the attorney with his question "Are you saying that all these congresspeople are bigots and haters?".

    How sickening.

    It's like having to apologize to a bully for being against his bullying of you.

    "I think that gay marriage is something that should be between a man and a woman.” - Arnold Schwarzenegger 2003

    by kerplunk on Wed Mar 27, 2013 at 01:36:47 PM PDT

  •  So, was President Clinton a Bigot? (4+ / 0-)

    Have to ask.

    Learn about Centrist Economics, learn about Robert Rubin's Hamilton Project. www.hamiltonproject.org

    by PatriciaVa on Wed Mar 27, 2013 at 01:40:28 PM PDT

  •  Rep. Largent (R-OK) (2+ / 0-)
    Recommended by:
    Chitown Kev, mmacdDE
    Rep. Steve Largent (R-OK) wanted Congress to "Look at history. No culture that has ever embraced homosexuality has ever survived."
    However, we know of some cultures in the Mid-East and Africa which have long honored polygamy. Those cultures are older than ours, I believe. And the Saudis (the royals, anyway,) are quite well off.

    What a bunch of ignorant, self-righteous, pearl-clutching.

    •  well, that's okay by them because one of their (0+ / 0-)

      main arguments to uphold DOMA is that the main reason for marriage is to "procreate," (else the human race will die out, you know)!  Polygamous cultures make lots and lots of babies--so that works for them.

      If the plutocrats begin the program, we will end it. -- Eugene Debs.

      by livjack on Wed Mar 27, 2013 at 02:54:37 PM PDT

      [ Parent ]

  •  Kagan nailed it! (3+ / 0-)
    Recommended by:
    doraphasia, GreenMother, erush1345

    I think myself that the government (state) should recognize civil unions and let the churches decide who will marry who.  Some would allow gay marriage, some would not. The state recognized unions could be defined as marriages for the federal regs if necessary, but the state and feds should stay out of "marriage" because it is essentially a religious issue and always has been. This should fall under the establishment clause.

    •  If marriage in the spiritual sense is truly (1+ / 0-)
      Recommended by:
      Desert Scientist

      the call of a church, then who marries, will be all over the place. We are too diverse for it to be any other way. But that won't get government out of the hot seat.

      So long as they treat civil unions like second class, and give money to people "married" in a church, then the government is still favoring religion over nonreligion, and if they insist that marriage between a man and woman is the only way to be married, then they will be favoring certain religions over others.

      That puts the government at odds with it's own laws.

      •  I'm hetro man, married in a saloon by a JP (3+ / 0-)

        to a recovering Catholic woman. We have no problems after 30 years being considered "married', and we didn't  need no stinkin' church....The county gave us a license when asked, we paid the fee, end of story. If the country throws up a problem, it's not a Church thing. 'Course, it was Boulder, CO....and now that i think of it, we didn't get married in Boulder County, though we lived there, but the "service" was performed in a County we used to live in, in the mountains, in a rented saloon, in the middle of winter, but not where we lived....oh, it's all so complicated!!!. Maybe after 30 years, we're not really married after all!!!

        Without geometry, life is pointless. And blues harmonica players suck.

        by blindcynic on Wed Mar 27, 2013 at 02:55:40 PM PDT

        [ Parent ]

        •  Fine! I have no problem with that! (1+ / 0-)
          Recommended by:
          GreenMother

          I just think the way things are now set up the government should recognize ANY arrangement between consenting adults (and I mean truly consenting between equals) as marriage or civil union or whatever they want to call it and let the churches or atheist organizations recognize what they want to.  I fail to see why the government should be involved in religious issues (most marriages) and thus be mired in such idiocies as DOMA.  It really is not the government's business as long as nobody is really being physically hurt in the process and as long as minors are not involved and the arrangement is mutually acceptable with no coercion.  

          Marriage is too often involved with religion to be regulated in that way by government.  DOMA in my opinion violates the establishment clause because it in essence defines marriage in a religious context.

          •  I'll add that Roger Williams was correct. (1+ / 0-)
            Recommended by:
            GreenMother

            Religion corrupts the state and the state corrupts religion.  If you truly believe in such and such a religious view, live it your self - don't impose it on others! I'm sure, if yours is the one true view you will be vindicated without forcing others to follow your doctrine.  

            One reason Washington wrote that the United States was in no sense a Christian nation was, I think, that the disastrous result of government-religion commingling was so evident in Europe that we did not want to go down that road. I sometimes think at least some people have forgotten where that road leads.

          •  Agree (2+ / 0-)
            Recommended by:
            Desert Scientist, GreenMother

            There are government legal issues (like taxes, survivorship, et al) and that's all that needs to be worried about. And even then, maybe the Gov't is unnecessarily fussing about who is married and who is not for tax purposes or survivorship. Designate someone you're close to "married in the church or not" and that's it. This whole thing has been orchestrated by the religions right and the GOP wedge people for way too long for political purposes.

            Like DADT, it was going on all along anyway, no need to stick legislation in the middle to muddy the waters, like DADT and DOMA...

            Without geometry, life is pointless. And blues harmonica players suck.

            by blindcynic on Wed Mar 27, 2013 at 03:55:16 PM PDT

            [ Parent ]

        •  Me too--I was also married by a J&P (0+ / 0-)

          But my civil union was recognized as a marriage by the state and the DoD, whereas Gay People who receive a civil union--are not given the same deference.

          It's going to bite the governments, state and federal, in the ass soon enough.

    •  You're just as married (2+ / 0-)
      Recommended by:
      Brown Thrasher, mmacdDE

      if you do it before a justice of the peace, as if you do in in a church.
      The problem is that people forget the church part is only the religious ceremony - the legal part is in the declaration at the end: 'by the power vested in me by the state'. That's the only part that counts to government.

      (Is it time for the pitchforks and torches yet?)

      by PJEvans on Wed Mar 27, 2013 at 02:39:51 PM PDT

      [ Parent ]

  •  DOMA is a perfect example of the hypocrisy (1+ / 0-)
    Recommended by:
    doraphasia

    of the far right.

    Although DOMA was passed overwhelmingly by both parties, the GOP is the party constantly harkening back to original intent in the Constitution.  But, when it comes to DOMA, they conveniently look the other way.  Nowhere in the Constitution does it give the federal gov't the right to define "marriage".  So they drop back to their other position - they are defending "tradition".

    For the Originalists on SCOTUS, like Scalia and Thomas, this should be a no-brainer. DOMA is un-Constitutional.  But, I am sure they will find some way around that as most other conservatives do.

    The one limiting factor here, however, is that the US Gov't has been in the marriage business for many many years, and has thousands of regulations that require some definition.  Millions of people, as was pointed out to me yesterday in a comment, are dependent on the current definition of "marriage".

    I don't know what the answer is, or what it would mean if DOMA is thrown out... it's a real tough one.  But, in my opinion, it should be thrown out.

  •  These Christians better learn, (1+ / 0-)
    Recommended by:
    Brown Thrasher

    their crappy religion has no place in our government.

    As we pry their diseased talons out, clean the wounds and bandage them up, our society will be a better place.

  •  Was "marriage" established as an institution to (1+ / 0-)
    Recommended by:
    Brown Thrasher

    keep women in their place???

    If so, is that why the gay marriage issue is so problematic for some????

    Hard to keep one gender in their place if both genders are pretty much equal....

  •  my uneducated guess is (1+ / 0-)
    Recommended by:
    alice kleeman

    that justice kagan is not on scalias xmas mailing list now or in the future, makes her a fav of mine that's for sure.

  •  Saw post in earlier diary about SCOTUS Justices (0+ / 0-)

    who have never had children.  Sounds like many of them should not have been allowed to marry, according to their emphasis of proprogation as justifivation for 1 Man 1 Woman.

  •  Awakening from DOMA Coma? (0+ / 0-)

    There's got to be a morning after DOMA Coma!
    Rev. Timmy Video: http://www.youtube.com/...

  •  DOMA (0+ / 0-)

    If the Supreme Court does not uphold gay marriage and does not strike down DOMA, how about the Federal Government denying protection for same-sex married couples, such as doing away with the benefits of joint tax returns and inheritance taxes? If the protections enjoyed by same-sex married couples were taken away, then many would understand what is being denied homosexual couples.

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