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SSM and the Law

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Ok, this topic is peculating around the boards in a big way with the AG saying that they would no longer defend DOMA. There has been a ton of misinformation being passed around about that(DOMA is still enforced, and DOMA can only be declared unconstitutional by the court system, this decision does not declare DOMA unconstitutional), but that is not what I want to talk about here. It is just why I started this blog entry. What I want to do is briefly address the legal challenges to DOMA and anti-SSM laws on the state level and explain, hopefully somewhat fairly and accurately, what the challenges are. The whole thing is kinda complicated with alot of different things going on. It's easy to become confused.

There are to my mind three separate issues at play here. They all relate somewhat to one another, but are all actually separate issues. Those issues are:

1) Can states not allow same sex couples to marry?

2) Do states have to recognize same sex married couples married in another state?

3) Can the federal government not recognize as married same sex couples married under state laws?

Taking them in reverse order:

The question is being dressed most directly in the court case Gill v. Office of Personnel Management. The basis for this case was around section 3 of DOMA, which reads:

Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
U.S. District Judge Joseph Tauro rules that section 3 failed on a rational basis test of the "equal protection principles embodied in the Fifth Amendment to the United States Constitution". He specifically did not rule on whether equal protection to gays would fall under a more strict scrutiny.

What this all means is that the defenders of DOMA(which going forward will probably be the House of Representatives) have to now explain why, at the very least, DOMA "is a reasonable means to an end that may be legitimately pursued by the government", and they will have to do this with a preponderance of the evidence. Note that since Tauro did not rule on the question of which level of scrutiny should be used, it is quite possible(even likely) that this may not be enough, and any lawyer for the defense will almost certainly want to argue why DOMA is legal under even under strict scrutiny, which would require them to show a compelling government interest, and that the law is narrowly tailored to meet that interest and that it is the least restrictive means of achieving that interest.

Also on this issue is the case Massachusetts v. United States Department of Health and Human Services, referred to as "the Coakley case" for short after the Mass. AG who argued it. This case was also ruled on by Tauro. His determination in this case was that DOMA failed constitutionality because the federal government was overstepping the 10th amendment. He rules that it has been historically true that it is up to the states to decide how they will define marriage. In reading the rulings, I am struck that Tauro, who is a conservative judge appointed by Nixon, felt most comfortable with this argument. States decide what they call marriage, and the federal government has no business calling some of those decisions better or worse as long as they do not violate the US constitution.

The other two issues are very closely linked, and while separate issues, I will address them together since they both deal with roughly the same logic. The court case that addresses this is, of course, Perry v. Schwarzenegger. Judge Walker found that marriage is a fundamental right, citing the Loving and Griswold cases. For fundamental rights, strict scrutiny is required, and that the Prop 8 law did not even meet the rational basis test, let alone strict scrutiny.

At first glance this seems to be at odds with the Coakley ruling which said that it was up to states to define marriage, but the Coakley ruling was actually that it is up to states to define marriage as long as that definition does not violate the US constitution, which Walker found it did. What this means is that if the Perry case is upheld, states would have to allow same sex couples marry, and would have to recognize such marriages made in other states. To do otherwise would violate equal protection under the constitution, which states cannot do even with issues it is up to the state to legislate.

The question in all these cases is going to come down to whether marriage is a right(if not, then it does not come under equal protection), and if so, what level of scrutiny is properly used. Since both Loving and Griswold explicitly stated that marriage is a fundamental right, I suspect that at least rational basis test will be used, and at a guess would suspect that the middle level of scrutiny, intermediate scrutiny will be rules to be proper.
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  1. TurtleDude's Avatar
    I believe this is a rather well reasoned argument. Tauro as at the time he wrote this the longest serving judge who had not taken a reduced caseload as "senior status".

    the biggest issue is state recognition under FFC-some would claim since Illinois doesn't recognize say my Ohio CCW permit Ohio shouldn't have to recognize a gay marriage contract issued by Illinois especially if the couple moved to Ohio and tried to claim Ohio spousal benefits.
  2. Redress's Avatar
    Would concealed carry be considered a fundamental right? That is, could a state outlaw concealed carry, and if so, would it not be considered a fundamental right as the judges here are saying marriage is?
  3. TurtleDude's Avatar
    That is a good point. probably not
  4. X Factor's Avatar
    It's interesting that with DOMA, you have no trouble making a statement that it's unconstitutional, yet, when it comes to Obamacare, you don't even seem willing to analyze it. Is that because you may not like the answer you come up with?
  5. Redress's Avatar
    Or it could just be that I have not looked at the challenges to the health care reform law and don't like to speak from ignorance. Not speaking from ignorance is a good thing.
  6. X Factor's Avatar
    So, I assume then, you have no opinion of the health care law since you're not sure about it's constitutionality. You wouldn't support an unconstitutional law, would you?
  7. Redress's Avatar
    I have no opinion on the constitutionality of the health care reform law. I do that any law found unconstitutional at the end of the judicial process should be stricken from the books, which is I believe what happens and how our system works.

    I also believe that your attempts to show some hypocrisy here have failed, and you are either unwilling or unable to actually talk about the topic.
  8. X Factor's Avatar
    I'm not accusing you of hypocrisy. I just think it's rather telling that you're not willing to subject the health care law to the same comprehensive analysis of it's constitutionality that you have DOMA.
  9. Redress's Avatar
    I wonder what could be different between the two...Could it be one is a topic that is important to me personally and one is a topic I really don't have a strong opinion on one way or another? That would just be too easy.

    Now, do you have anything at all to say on the topic, or are you just going to continue to spam my blog post with irrelevant stupid comments?
  10. OhReally?'s Avatar
    The problem with using Gill and Mass v. Human Services is that it is a District court level and on appeal. The same is true with Perry. They don't reflect settled law. Not that I don't agree with much of your analysis, but it's quite the end of the day for these cases.

    The question boils down to what level of scrutiny the justices should apply. Those that lean to the right will claim rational basis. Those that lean to the left will claim heightened or strict scrutiny. Kennedy is the wild card. When Kennedy wrote the Lawrence decision, he managed to leave out what level of scrutiny he applied to the case. This means that we don't know exactly how to frame the argument for Kennedy. It is a real concern. With Olson and Boies working together on Perry, we might have our best chance at an argument Kennedy could favor.
  11. Alyssa's Avatar
    In my opinion, marriage is definitely a state issue. In fact, states did at one time have more rights under the constitution than they currently have.
  12. Oberon's Avatar
    I'm not a fan of 'states rights', but the Mass. case was merely about some live-in prostitutes whining about how they should get their deceased sugar daddy/mommy's Federal pension checks as 'survivors', hence the relevance of the DOMA rulings, so it's a Federal issue over whether the Fed should recognize Mass. marriage laws, basically. Yet, Mass. doesn't feel obligated to recognize other states' laws re marriage, such as the New England state where the minimum age for marriage is something like 14, or as somebody mentioned above concealed carry permits?
  13. vbean's Avatar
    (1) Can states not allow same sex couples to marry? Well, if you believe they "should have to" allow same sex couples then why would they be allowed "not to recognize" a marriage between a father and his daughter, a mother and her son, a man who wants three wives , or a woman who wants to legalize a union with her beloved cat? You are going to have to decide on some kind of definition of marriage of which someone will probably be offended and consider it to be discriminatory.
    (2) So you think there should be a law forcing every state to recognize a union that the people of that state may or may not be willing to except because they don't support your beliefs. You are free to do whatever you want with your life. No one is forcing homosexuals to change their beliefs on their lifestyle. Why should they be allowed to make laws to support this lifestyle. It will only open the floodgates to people who feel, for whatever reason ,that they have been offended or mistreated and political correctness will become the law of the land.
    (3) Can the federal government not recognize marriage of same sex couples married under state laws? The federal government has abused it's powers by inserting itself into every aspect of our lives. When they stopped caring about the American people and decided that the Constitution was no longer valid, a lot of people stopped caring about what they considered what should or should not be allowed.
    Whether you want to hear it or not marriage between a man and a woman was ordained by our Creator. Man cannot change this fact with government reform, legislation or laws.
    God's law trumps man's law every time.


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