Tea leaves from oral arguments: Supreme Court leaning towards striking down DOMA?

posted at 1:21 pm on March 27, 2013 by Allahpundit

A rare instance in which the left is decidedly pro-federalism. The word from Reuters and SCOTUSblog:

A bit more detail from the WSJ liveblog:

Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

But maybe another standing issue, a la yesterday?

The White House refuses to defend DOMA in court, just as California’s government refuses to defend Prop 8. Do other parties (i.e. House Republicans) who are defending DOMA really have a legal stake in the case or is it mere political interest, in which case there’s no standing?

DOMA’s an especially hard sell with this Court. Conservatives stand a chance on Prop 8 because that case pits gay rights against state sovereignty, two concepts Kennedy has stood for fairly reliably throughout his career. It’s not crazy to think he’d side with the latter over the former given that trends in public opinion might soon solve the problem for him. DOMA, however, aligns the two: He can strike a blow for states’ rights and for gay rights by voting to strike the law. And as SCOTUSblog notes, the Court’s four Democrats are a lead-pipe cinch to vote against it. There hasn’t been an unpredictable vote on social issues among the liberal wing in decades.

Obvious question: How does the White House decide which federal laws aren’t worthy of being defended by the DOJ? The Court’s conservatives would like to know.

“It’s very troubling,” said Justice Anthony Kennedy…

Chief Justice John Roberts pressed government lawyer Sri Srinivasan on how the government will now decide which laws to defend. “What is your test?” Roberts asked.

Justice Antonin Scalia, who served in the Justice Department in the 1970s, criticized its “new regime.”

Two more tidbits from today’s oral arguments, and these may have some bearing on the Prop 8 ruling. Compare and contrast. First, Roberts:

And second, via the WSJ, Clement vs. Kagan:

Justice Kagan said the House report that accompanied the legislation suggested at least some lawmakers had improper motives to enacting the law, such as for the purposes of voicing disapproval of homosexuality. Mr. Clement said the high court has never invalidated a statute on that basis.

Both of those remarks bear on whether the Court might find either DOMA or Prop 8 a violation of equal protection. The point of Roberts’s comments is that, traditionally, the Court only applies “heightened scrutiny” to laws that discriminate against groups that are regarded as being relatively politically powerless. The point of constitutional rights is to protect individuals or minorities who are threatened somehow by the majority, right? But if 53 percent of the country now supports gay marriage, how exactly are gays politically powerless or being threatened? That suggests Roberts would not apply “heightened scrutiny” to DOMA or Prop 8, which in turn means he’s more likely to uphold both laws. Without heightened scrutiny, all the government has to do is show that the law it’s defending has some “rational basis” and the Court will uphold it. (Although do note: Most gay-marriage supporters argue that Prop 8 and other bans have zero rational basis, so it’s possible that Roberts would vote to strike down the laws even without applying heightened scrutiny.) Clement’s remark to Kagan touches on the same point: The Court has never ruled that government discrimination against gays is illicit and thus worthy of heightened scrutiny for purposes of equal protection the way it is for racial minorities. The potential significance of these cases is that the Court might end up tackling that issue head on and addressing whether government discrimination against gays remains more or less legally permissible. But given all the concerns about standing today and, especially, yesterday, it seems a more modest ruling is likely.

Update: Speaking of gay marriage and states’ rights, Gabe Malor flagged this statement from Ted Cruz as being significant. I agree.

Sen. Ted Cruz said Tuesday that he was against same sex marriage and hoped the U.S. Supreme Court would continue to let individual states grapple with the issue.

“I support traditional marriage between one man and one woman,” Cruz said after speaking to the Richardson Chamber of Commerce. “The Constitution leaves it to the states to decide upon marriage and I hope the Supreme Court respects centuries of tradition and doesn’t step into the process of setting aside state laws that make the definition of marriage.”

Says Gabe:

“FMA” is of course “Federal Marriage Amendment,” which is what I assume Huckabee and social conservatives will start demanding from prominent Republicans if the Supreme Court ends up legalizing gay marriage nationwide before 2016. The point of the FMA traditionally has been to ban all attempts at legalizing SSM by stating in the U.S. Constitution that marriage is between one man and one woman. That would take the matter entirely out of the states’ and the courts’ hands. Would Cruz — and Paul and Rubio — oppose that on federalism grounds? If so, will Huck et al. compromise by pushing instead for a new version of the FMA that would return the issue to the states rather than ban the practice of gay marriage outright? It’s hard for me to believe social conservatives would settle for that since, given the poll trends, it would ensure legal SSM in most of the country over the next 25 years anyway. But in that case, what are Cruz/Paul/Rubio to do?

Update: A nice antidote to some of the sanctimony this week:

Follow-up: Was repealing it a particular priority of the liberal base at the time?


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Part of the reason was that you could objective tell that someone was of “minority” and thus protective status therefore you could objective discriminate.

melle1228 on March 27, 2013 at 3:53 PM

You’re a reasonable sort, I suggest you take a look at the case of Alexina Morrison. A slave who sued for her freedom on the claim that she “looked white.” It took 10 years and 3 different trials for any jury to reach a verdict and the appeal was preempted by the Civil War. Here’s a link to a paper which uses her story as a fascinating example of the cultural (not scientific) construction of race, and the codification of “race” into the law despite no objective means of determining what race was.

http://www.understandingrace.org/resources/pdf/myth_reality/holt.pdf
Use your Control F button and search for “Alexina” to skip to the relevant sections

I also suggest you read Peggy Pascoe’s book “What Comes Naturally” where she has a fascinating chapter on the state of Virginia’s inability to properly enforce their ban on interracial marraige in the 1920s because they had no objective means of determining racial category. Especially with lots of the phrenology having been discredited by the 1920s. The point is that the law still functioned, it enforced race even as it was unsure what it was. We have almost never had an “objective” means of determining race.

libfreeordie on March 27, 2013 at 4:01 PM

The Schaef on March 27, 2013 at 4:00 PM

if you don’t believe in the multiple origin hypothesis, then what on earth does ancestry and geography have to do with “genetic” race. All humans began in one region of the world and migrated and traveled. At what point did race become part of the human genome?

libfreeordie on March 27, 2013 at 4:03 PM

You’re a reasonable sort, I suggest you take a look at the case of Alexina Morrison. A slave who sued for her freedom on the claim that she “looked white.” It took 10 years and 3 different trials for any jury to reach a verdict and the appeal was preempted by the Civil War. Here’s a link to a paper which uses her story as a fascinating example of the cultural (not scientific) construction of race, and the codification of “race” into the law despite no objective means of determining what race was.

http://www.understandingrace.org/resources/pdf/myth_reality/holt.pdf
Use your Control F button and search for “Alexina” to skip to the relevant sections

I also suggest you read Peggy Pascoe’s book “What Comes Naturally” where she has a fascinating chapter on the state of Virginia’s inability to properly enforce their ban on interracial marraige in the 1920s because they had no objective means of determining racial category. Especially with lots of the phrenology having been discredited by the 1920s. The point is that the law still functioned, it enforced race even as it was unsure what it was. We have almost never had an “objective” means of determining race.

libfreeordie on March 27, 2013 at 4:01 PM

Okay then serious question, I have traced my ancestry and there are slaves on my maternal mother’s side. Can I claim discrimination?

melle1228 on March 27, 2013 at 4:04 PM

libfreeordie on March 27, 2013 at 4:03 PM

Please…in 2 sentences…tell us exactly what race, a quite visible human trait, has to do with sexual preference, you bloviating, obfuscating nimrod?

You’ve gone to Mongolia and back, to avoid admitting that a genetic cause for homosexuality has not been found.

kingsjester on March 27, 2013 at 4:07 PM

Please…in 2 sentences…tell us exactly what race, a quite visible human trait, has to do with sexual preference, you bloviating, obfuscating nimrod?

You’ve gone to Mongolia and back, to avoid admitting that a genetic cause for homosexuality has not been found.

kingsjester on March 27, 2013 at 4:07 PM

I can sum it up.. He is comparing it by saying that not all black people look black, so therefore you can still discriminate if you don’t know someone is black.- which makes absolutely no sense.

It is why I asked him with slave ancestry if I would be able to claim racial discrimination..

melle1228 on March 27, 2013 at 4:09 PM

All humans began in one region of the world and migrated and traveled. At what point did race become part of the human genome?

libfreeordie on March 27, 2013 at 4:03 PM

At the point where those “phenotypical differences” became native to their respective populations.

I didn’t see you answer the Warren question: if there is zero link between genes and race, how can someone mark Native American on a form because one of their great-great-grandmother’s cousins twice removed was part of a Cherokee tribe? Heredity doesn’t just imply genetics, it’s inseparable.

The Schaef on March 27, 2013 at 4:10 PM

Wow! That’s amazing! Then, because we were able to distinguish between men and women before we learned about genes, that must mean there is no genetic role in gender either!

We were able to distinguish between men and women, but (as most historians of science will tell you) our explanations for the differences between male and female physiology have been equal parts hilarious, scary, wrong and dangerous over the course of human history. You do realize that biblical stories around Adam and Eve (itself a rehearsal of similar stories in other, earlier religions) is part of humanity’s early attempts to understand why women menstrate monthly? We used to believe the body was made up for elemental humors, and we used to believe that women and men had different kinds of humors within them. Human recognition of a thing is not the same thing as genetic difference in a thing. We have learned that lots of what we thought about the female and male bodies is wrong, thanks to genetics. The same is also true about what we thought we knew about “black” and “white” people. Especially “white” people. I mean there was a time when the Irish, Italians and various slavic people were not considered “white.” So somehow between 1900 and 2013 Italians gained the genetic markers of “white?” When you actually think about it in genetic terms, race makes not one bit of sense.

Even more amazing, people know what genes are now, and yet we still fill in the bubbles for race on the forms!

As I said. There are people who identify with racial categories. Now why *that* happens is a whole other conversation. But people identifying with a category does not, in and of itself, mean that category is based in genetics (HINT, this is the conservative argument on sexuality as well!)

libfreeordie on March 27, 2013 at 4:11 PM

The Federal Marriage Amendment has been dead for a long time. Even if you could somehow get the required 2/3 votes in both houses of Congress and get it to the states it would only take 13 state legislatures declining to ratify. That means you need at least one of Washington, Oregon, California, Hawaii, Illinois, New York, Connecticut, Maryland, Vermont, Maine, Massachusetts, Delaware and Rhode Island. It ain’t gonna happen.

alchemist19 on March 27, 2013 at 4:13 PM

We were able to distinguish between men and women, but (as most historians of science will tell you) our explanations for the differences between male and female physiology have been equal parts hilarious, scary, wrong and dangerous over the course of human history.
libfreeordie on March 27, 2013 at 4:11 PM

And I would argue that leftist like everything have completely overcorrected this trying to establish NO difference between genders. That gender is a made up cultural construct.

melle1228 on March 27, 2013 at 4:14 PM

Okay then serious question, I have traced my ancestry and there are slaves on my maternal mother’s side. Can I claim discrimination?

melle1228 on March 27, 2013 at 4:04 PM

1. I just would like to point out that if melle currently identifies as “white” than something has gone wrong with the idea that race is “genetic.”

2. Racial non-discrimination statutes are directed to benefit non-white people. Do you not identify as white?

Please…in 2 sentences…tell us exactly what race, a quite visible human trait, has to do with sexual preference, you bloviating, obfuscating nimrod?

I don’t know how I can possible identify the relationship between race and sexuality when we still don’t know what “race” even is. You are now saying that it is a “quite visible human trait.” Sweet, so what are the signs of the different racial categories. Who belongs inside and out of them. Is race determined by each generation? If a dark skinned family gives birth to a light skinned, blonde and blue eyed child is that child then “white?” Do you even realize how insane you sound.

The reason all of this relates to the question before the Court today is that race proves that sexual minorities don’t have to be able to prove that sexuality is genetic in order to be protected under the law.

I didn’t see you answer the Warren question: if there is zero link between genes and race, how can someone mark Native American on a form because one of their great-great-grandmother’s cousins twice removed was part of a Cherokee tribe?

Since when does the census require genetic proof? Indeed, it is a holdover of the racial systems which were established over the last 200+ years of the country’s legal history.

libfreeordie on March 27, 2013 at 4:18 PM

Because I have been accused of “running” from arguments. I will state that I am going to be late for an evening event and must run. This was fun.

libfreeordie on March 27, 2013 at 4:20 PM

Dear Lord. What a hijacking.

See what happens when you ask them for a Genetic cause for homosexuality?

kingsjester on March 27, 2013 at 4:20 PM

We were able to distinguish between men and women, but (as most historians of science will tell you) our explanations for the differences between male and female physiology have been equal parts hilarious, scary, wrong and dangerous over the course of human history.

So because you don’t like earlier explanations, in what way does that diminish the point that we knew the difference without having to examine the human gene first?

Now why *that* happens is a whole other conversation.

Um, no it’s not, really. It’s because they know their race. And more often than not, that race is derived through heredity.

(HINT, this is the conservative argument on sexuality as well!)

HINT: if you want to conflate these two issues, you need to show me people CLAIMING homosexuality through heredity, e.g., I am gay because my maternal grandfather was gay.

The Schaef on March 27, 2013 at 4:21 PM

Prior to Brown v. Board of Education where in the Constitution did it specifically say that black children had a right to attend the public school nearest to them regardless of race?

libfreeordie on March 27, 2013 at 2:56 PM

Where in the Constitution does it say that ANY OR EVERY child has a right to a public education?

The states could close all public schools today. Public education is not a “right” granted to individuals by the Constitution, San Antonio Independent School District v Rodriguez, 411 U.S. 1, 35 (1973). In Phyler v Doe, 457 U.S. 202 (1982), the Supreme Court ruled that while there is no right to education, if provided, all must be allowed access to an education, including illegal immigrants.

“…Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied THE OPPORTUNITY of an education.” Brown v Board of Education, 347 U.S. 483 (1954)

Please note the word “opportunity” is used rather than “right.”

“Such an OPPORTUNITY, where the state has undertaken to provide it, is a RIGHT which must be made AVAILABLE TO ALL ON EQUAL TERMS.” Brown, supra

Public education only becomes a “right” when – AND IF – a state decides to offer the “opportunity” of a free education.

Resist We Much on March 27, 2013 at 4:22 PM

libfreeordie on March 27, 2013 at 4:20 PM

You? Accused of “running” from arguments?

I’m shocked. Shocked, I tell you.

After a display of obfuscating b.s. like that, all I can say is: Forget the shoes. Save the watch.

kingsjester on March 27, 2013 at 4:23 PM

It’s because they know their race

I am fascinated by your continual conflation of human recognition and proof of genetic markers. It is seriously the least scientific thing ever and you’re serious as a heart attack about it.

libfreeordie on March 27, 2013 at 4:24 PM

1. I just would like to point out that if melle currently identifies as “white” than something has gone wrong with the idea that race is “genetic.”

Race isn’t genetic? It can’t be proven genetically?

But let’s put that aside for a minute. Race is a tangible visible thing. Minorities are discriminated against because a bigot visually identifies them as a minority. I’ll use my example as to why race discrimination is completely different than sexual orientation and that is why it falls higher on the equal protection tests:

Two woman walk into a restaurant. Are they sisters? Are they gay? In order to know which one, they would have to either tell you, or exhibit a sexual behavior that makes you assume they are.

Say the woman are “not white” thus a minority.. What behavior do they have to exhibit for you to know this? Do they have to tell you this?

Yes there are some minorities that can pass for white, but that isn’t the point, because most racial discrimination is based on visual identification of a race.

melle1228 on March 27, 2013 at 4:24 PM

If a dark skinned family gives birth to a light skinned, blonde and blue eyed child is that child then “white?” Do you even realize how insane you sound.

libfreeordie on March 27, 2013 at 4:18 PM

Not as insane as someone who thinks two parents with none of these genetic markers are going to give birth a child that has all of them.

The reason all of this relates to the question before the Court today is that race proves that sexual minorities don’t have to be able to prove that sexuality is genetic in order to be protected under the law.

No, the reason all of this relates to the question before the court, is because people continue to use racial issues to define sexual-identity issues, which to me would be a slap in the face to the people who were being hosed down and set upon by dogs and thrown in jail by (Democrat) governing bodies.

Since when does the census require genetic proof?

libfreeordie on March 27, 2013 at 4:18 PM

Since it started conferring special benefits to people based on race. I am German on both sides of my family: what do you think would happen if I applied for a grant from the United Negro College Fund? Do you think that response would be just or unjust, and why?

The Schaef on March 27, 2013 at 4:27 PM

I am fascinated by your continual conflation of human recognition and proof of genetic markers. It is seriously the least scientific thing ever and you’re serious as a heart attack about it.

libfreeordie on March 27, 2013 at 4:24 PM

Yes, because nobody ever had dark skin, blonde hair, or green eyes due to genetic markers.

The Schaef on March 27, 2013 at 4:29 PM

Yes, because nobody ever had dark skin, blonde hair, or green eyes due to genetic markers.

The Schaef on March 27, 2013 at 4:29 PM

That is totally a cultural thing. :)

melle1228 on March 27, 2013 at 4:33 PM

Because I have been accused of “running” from arguments. I will state that I am going to be late for an evening event and must run. This was fun.
 
libfreeordie on March 27, 2013 at 4:20 PM

 
Because posting tomorrow is just silly, eh professor?
 
(It’s a link, btw.)

rogerb on March 27, 2013 at 4:36 PM

That is totally a cultural thing. :)

melle1228 on March 27, 2013 at 4:33 PM

What’s important to take away from this, melle, is not that people understood the difference between blonde hair and brunette hair before genetics were discovered, but that people once believed the reason for a different hair color was something really ridiculous, which totally negates external presentation of genetic differences for some reason.

The Schaef on March 27, 2013 at 4:41 PM

Because I have been accused of “running” from arguments. I will state that I am going to be late for an evening event and must run. This was fun.

libfreeordie on March 27, 2013 at 4:20 PM

Who didn’t know that?

Hopefully, you’ll be able to point out the section of the COTUS that grants a RIGHT of public education to ANYONE when you return.

Resist We Much on March 27, 2013 at 4:42 PM

I wouldn’t say “the same” thing about homosexuality because race and sexuality are entirely different kinds of categories. My point is that racial categories are a social construct with zero basis in genetic science, indeed race is a category that precedes our understanding of genetics at all. And yet, despite that fact, has been the basis for lawmaking in this nation since its inception (3/5th clause) and continued to be codified as a legally recognized category in this nation from that moment forward. We didn’t need proof of “genetic” race to have slave codes, to pass the Fugitive Slave Law, for the Dred Scott decision, for the passage of the 13th, 14th, and 15th Amendments, for the establishment of the Freedman’s Bureau for the passage of the Black Codes, for the passage of Jim Crow, for the Warren Court’s Civil Rights decisions, for the passage of the 1964/1965 Civil Rights Acts and so on and so forth. All of that occurred without any kind of scientific consensus on the genetic nature of racial categories.

So why, all of a sudden, have conservatives decided they need “genetic proof” of sexuality to recognize gay people’s existence?

libfreeordie on March 27, 2013 at 3:34 PM

So racial identification has NO CORRELATION to genetics? Seriously?

Also, you didn’t answer my question. If homosexuality is influenced by societal/cultural factors and not simply genetics(and you admit it is), doesn’t the USA have a compelling state interest in encouraging heterosexuality, a lifestyle that is healthier and improves the birth rate? Isn’t that a reason for the state to ban same-sex marriage?

Good Solid B-Plus on March 27, 2013 at 4:44 PM

So libfree basically admits to being utterly obsessed with something that doesn’t even exist (race).

Yet he talks about it 24/7.

It’s like a devout atheist who prays 15 times a day and tithes half his salary to the church.

Good Solid B-Plus on March 27, 2013 at 4:45 PM

The point is that the law still functioned, it enforced race even as it was unsure what it was. We have almost never had an “objective” means of determining race.

libfreeordie on March 27, 2013 at 4:01 PM

Why is this a problem? Race should not matter in anything. And if we accept your standard shouldn’t all affirmative action laws be suspect as well?

NotCoach on March 27, 2013 at 5:04 PM

But wait. I thought John Roberts said in his ruling on Marxist Care that it is not the responsibility of SCOTUS to protect the public form what may be considered bad laws voted in to place by their elected representatives. And if the people want to change a bad law they should use the ballot box. So much for that reasoning.

Our country gone, has been for quite some time.

bgibbs1000 on March 27, 2013 at 5:16 PM

t homosexuality because race and sexuality are entirely different kinds of categories. My point is that racial categories are a social construct with zero basis in genetic science, indeed race is a category that precedes our understanding of genetics at all. And yet, despite that fact, has been the basis for lawmaking in this nation since its inception (3/5th clause) and continued to be codified as a legally recognized category in this nation from that moment forward. We didn’t need proof of “genetic” race to have slave codes, to pass the Fugitive Slave Law, for the Dred Scott decision, for the passage of the 13th, 14th, and 15th Amendments, for the establishment of the Freedman’s Bureau for the passage of the Black Codes, for the passage of Jim Crow, for the Warren Court’s Civil Rights decisions, for the passage of the 1964/1965 Civil Rights Acts and so on and so forth. All of that occurred without any kind of scientific consensus on the genetic nature of racial categories.

So why, all of a sudden, have conservatives decided they need “genetic proof” of sexuality to recognize gay people’s existence?

libfreeordie on March 27, 2013 at 3:34 PM

Race is most certainly genetic. If you cannot understand this you are an idiot. Gayness is probably genetic too. Also genetics is more than DNA. RNA is farrrrr more importante. (Little Spanish lingo).

antisense on March 27, 2013 at 5:23 PM

Remember who Libfree is:

Like…how does a “vulnerable” 16 year old find their way onto a gay sex chat-line anyway

libfreeordie on November 20, 2012 at 6:16 PM

But I have a hard time getting too upset about a 45 year old guy and a 16 year old guy having sex. Maybe its because when I was under 18 (17 to be exact) I had a bit of an affair with an older man (early 30s)…and it was AWESOME. Its exactly what I wanted, I pursued it, he was smoking hot, I was 17 and (as most of the male posters will attest to) extremely interested in having sex. I wasn’t abused or exploited. And there’s no question that a year earlier I would have been just fine as well. Because by 16 I was, at least in terms of my sexual desires, really, really clear what I wanted. I think most 16 year old boys are. Like…how does a “vulnerable” 16 year old find their way onto a gay sex chat-line anyway?

libfreeordie on November 20, 2012 at 6:16 PM

I just think we’re doing the wrong thing having a moral panic over a 32 year old and a 16 year old.

libfreeordie on November 20, 2012 at 6:16 PM

I think 16 should be the age of consent when it comes to sexual activity. I think 18 for voting. I think 21 for gun ownership, alcohol, cigarettes and marijuana (which should be legal).

libfreeordie on November 20, 2012 at 6:27 PM

He’s ill.

CW on March 27, 2013 at 5:46 PM

After the last two days of ridiculously weak arguments for same sex marriage, I am now convinced that if gays want some social contract recognized by government they ought to make their own, name it something, develop some rules, customs etc. and see if it lasts 1000+ years. There are just too many implications and complications at the state and federal levels and with children to try to say that it is the same.

And for all those ssm supporters who say gay marriage doesn’t affect straight marriage…it does! Now we have to distinguish between gay and heterosexual marriage. Opposite sex marriage or heterosexual marriage is now a separate thing from marriage.

monalisa on March 27, 2013 at 5:54 PM

He’s ill.

CW on March 27, 2013 at 5:46 PM

But at least he’s consistent.

Most gay-marriage proponents scoff at the notion that they might be hypocrites because they don’t discriminate based on gender, but still do on other “arbitrary” factors like age, and I would assume, number of participants, and family relation.

The Schaef on March 27, 2013 at 6:08 PM

Re:

Hey, when Democrats controlled the House, Senate (with 59/60) and WH in 2009-10, did they attempt to overturn or repeal DOMA?

Jared Polis would like a word.

H.R.3567, Respect for Marriage Act of 2009, as introduced in the House on September 15, 2009, reads:[5]

A BILL
To repeal the Defense of Marriage Act and ensure respect for State regulation of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the “Respect for Marriage Act of 2009″.

SEC. 2. REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.
Section 1738C of title 28, United States Code, is repealed, and the table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by striking the item relating to that section.

SEC. 3. MARRIAGE RECOGNITION.
Section 7 of title 1, United States Code, is amended to read as follows:

“Sec. 7. Marriage
“(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
“(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.”

triple on March 27, 2013 at 6:36 PM

States still have rights? Does Arizona know this?

VorDaj on March 27, 2013 at 6:36 PM

Check basic facts with 2 seconds of googling on hotair? Never!

triple on March 27, 2013 at 6:36 PM

Let’s play……Follow the consequences:

BTW, When homosexual marriage starts getting approved aren’t churches going to be driven out of the marriage business? If a church won’t marry same sex couples then how long before they file suit or try to shut down the churchs’ tax-exempt/or official licensing from the states?

If churches don’t want to be sued will they just stop marrying anyone?

And at that point, the state and federal government become arbiter of all definitions of marriage.


Welcome to the brave new world of Somdomerica !

PappyD61 on March 27, 2013 at 6:42 PM

Oh, churches need to approve who gets married now?

Someone should tell my fiancee, we’re atheists.

triple on March 27, 2013 at 6:43 PM

DOMA just defines marriage for the purposes of federal law and policy.

Strike it down, and we’ll just go back to a 1930′s SCOTUS ruling on the Full Faith & Credit Clause.

At least this is Levin’s take, have at it if you’re smarter than he is.

Akzed on March 27, 2013 at 7:15 PM

Oh, churches need to approve who gets married now?

Someone should tell my fiancee, we’re atheists.

triple on March 27, 2013 at 6:43 PM

You poor fools. :(

tom daschle concerned on March 27, 2013 at 7:29 PM

He’s ill.

CW on March 27, 2013 at 5:46 PM

Yep. That guy is a pedophile and he probably abused other boys, who probably need therapy to understand and move on from their abuse.

22044 on March 27, 2013 at 7:38 PM

Scoff at the FMA if you will, but it’s becoming clear that DOMA never stood a chance against activist judges. Too tempting to put yourself “on the right side of history” by invalidating a law passed with broad bipartisan support.

Lately, the only way to be sure any law won’t be held unconstitutional is to put it directly in the Constitution by way of a Constitutional Amendment. The ugly truth is that SCOTUS has veto power over any law passed anywhere, no matter how recently or how long ago, no matter how broadly supported or weakly supported, no matter if it’s been part of a state Constitution for 150 years, or is a “sense of the Senate” resolution that doesn’t even get presented to the House for agreement.

I think the biggest real news in all this comes down to Scalia’s question: “When did it become unconstitutional?” Remember that abortion was never even remotely considered unconstitutional until SCOTUS declared it so, and then it was declared that the Constitution prevented any restrictions on abortion. As long as SCOTUS can turn on a dime and declare something is unconstitutional NOW that wasn’t before, even though the Constitution hasn’t been changed, we effectively have no secure Constitutional protections.

This is the fruit of the progressives’ constant redefinition of language. Language has been devalued. The truism of the left, that “truth” is just the opinion of the people in power, will become the reality, and the Constitution will protect only what SCOTUS allows it to protect.

There Goes The Neighborhood on March 27, 2013 at 7:39 PM

You poor fools. :(

tom daschle concerned on March 27, 2013 at 7:29 PM

Your righteous moral indignation at what is a personal decision that effects exactly zero people is adorable.

triple on March 27, 2013 at 7:49 PM

Just released data from the CDC:

There are now 110,197,000 Venereal Infections in U.S.

New STIs in the U.S. in 2008 included:

2,860,000 new Chlamydia infections;
1,090,000 new Trichomoniasis infections;
820,000 new Gonorrhea infections;
776,000 new Herpes Simplex Virus Type 2 (HSV-2) infections;
55,400 new syphilis infections;
41,400 new HIV infections; and
19,000 new Hepatitis B infections.

http://cnsnews.com/news/article/cdc-110197000-venereal-infections-us-nation-creating-new-stis-faster-new-jobs-or

Remain a virgin until marriage, & marry a virgin.

itsnotaboutme on March 27, 2013 at 7:52 PM

Here’s why everyone should fight against SSM. Even if you do not personally care about gay marriage one way or the other.

The current rush to mainline SSM means that we are very fast approaching a point where SSM is the “preferred” kind of marriage, culturally and legally.

Let’s see what happens when people who don’t subscribe to the “majority” view on marriage (and that means the people in power’s view), shall we?

1800′s, United States. Mormons were jailed for participating in polygamy. Their church and all the church property was seized by the federal government. People engaged in the practice of polygamy were denied their right to vote.

Some states took the right to vote away from Mormons just on their belief that polygamy was okay–from all Mormons, including those who never practiced it. They were punished for their belief alone.

If all of these things were held to be Constitutional by massive majorities (the right to strip all Mormons of the right to vote based on belief alone was 9-0) then who here believes that this is exactly what is coming next for Catholics, Mormons (again), and other’s who do not toe the SSM line?

Are you prepared to lose your right to vote because you don’t agree with SSM? It’s happened in America before. It will happen again. Do you honestly think that the SSM lobby will not start trying to seize and disenfranchise the Catholic church based on Reynolds? Maybe not this year, but within the next few years, certainly.

You don’t stop it now, you or your children WILL be thrown in jail for their beliefs.

Vanceone on March 27, 2013 at 3:00 PM

It was more than polygamy. That is, it was more than just a practice of one man being married to more than one woman at a time. Joseph Smith, for example had multiple wives, and some of his wives were married to other men at the same time. Ordinary polygamy was tame by comparison. Some would call it polyamory, but I think the better term is “plural marriages.”

You wouldn’t think the distinction would be relevant all these years later, but it may get very relevant very soon.

I think the broader point is still valid, though. If SSM is adopted, there would be the state-mandated view of marriage that includes men with men, and women with women. And then there would be the Christian view of marriage that is one man and one woman. The Christian view would nominally be protected under the Freedom of Religion, but of course the state-mandated definition of marriage would overrule it. And refusing to accept a pair of men as married would be ruled as discrimination no matter what your religion said. You would absolutely be prohibited from providing any services to married people that were not also provided to “state-married” people.

There Goes The Neighborhood on March 27, 2013 at 8:11 PM

How is it marriage is nowhere in the COTUS and they are dismissing States rights to regulate it on a non-existant percieved right,, yet it’s perfectly fine according to the left to regulate firearms at both levels with the second amendment?

It can’t be both.

wolly4321 on March 27, 2013 at 8:22 PM

Arizona has to recognize SSM’s from CA, based on nothing in the COTUS, but Kalifornicationia can not recognize my AZ carry permit and 2A rights as clearly defined and litigated?

wolly4321 on March 27, 2013 at 8:28 PM

H.R.3567, Respect for Marriage Act of 2009, as introduced in the House on September 15, 2009, reads:[5

triple on March 27, 2013 at 6:36 PM

I bet you believe those evil Rethuglicans filibustered the poor bill out of existence.

RickB on March 27, 2013 at 8:29 PM

Your righteous moral indignation at what is a personal decision that effects exactly zero people is adorable.

triple on March 27, 2013 at 7:49 PM

I was just identifying you and your fiance as fools. Being a fool isn’t an adorable quality I’m afraid.

We will all wait here while you justify your secular moral framework. This should be pretty good.

tom daschle concerned on March 27, 2013 at 8:49 PM

You want to defend marriage … GET MARRIED, STAY MARRIED & DON”T SCREW AROUND.

This idiotic bill was authored by Bob Barr … enough said.

kregg on March 27, 2013 at 8:56 PM

The White House refuses to defend DOMA in court, just as California’s government refuses to defend Prop 8. Do other parties (i.e. House Republicans) who are defending DOMA really have a legal stake in the case or is it mere political interest, in which case there’s no standing?

The Democrats have already engaged in a revolutionary process “against” the U.S., by selecting laws to enforce and those to ignore, leave unenforced, even bragging about this process of selective acceptance or denigration of legally defined issues.

Some fret over the use of the word, “war,” over issues today, it’s already in process. The Left, Democrats, are literally already attacking the U.S. to get what they want, they’ve established perimeters and objectives and are going about pursuing those without regard for the means, for the ethics of doing what they’ve otherwise sworn to do (uphold and defend the Constitution as to Obama Admin and other elected persons).

What can be done about this? Withhold their paychecks as long as they refuse to “uphold and defend”?

Lourdes on March 27, 2013 at 8:58 PM

when Democrats controlled the House, Senate (with 59/60) and WH in 2009-10, did they attempt to overturn or repeal DOMA?

Follow-up: Was repealing it a particular priority of the liberal base at the time?

Sure looks like the Democrats planned this out on a long-term strategy: wait until they could USE an attack on DOMA for Congressional and then Presidential gain. Like now.

Because, yes, they’ve let this burst of antagonism about DOMA sit in their pantry of Ignore These Issue until it’s “political expediency” expiration date. Like now.

Lourdes on March 27, 2013 at 9:05 PM

Everyone should be aware that it was the one and only Dianne Feinstein who made it a legislative crusade to cast out DOMA and replace it with one of her creepy alternative legislative plans she calls “Respect for Marriage” or something like that.

Lourdes on March 27, 2013 at 9:08 PM

The Democrats have already engaged in a revolutionary process “against” the U.S., by selecting laws to enforce and those to ignore, leave unenforced, even bragging about this process of selective acceptance or denigration of legally defined issues.

Lourdes on March 27, 2013 at 8:58 PM

With all due respect Lourdes, this is the benefit of the party in power. I think that the Rino-publicans blew their best chance in years to head off many of the problems we face today.
Instead they chose to push through idiotic bills like DOMA.

kregg on March 27, 2013 at 9:09 PM

Instead they chose to push through idiotic bills like DOMA.

kregg on March 27, 2013 at 9:09 PM

House 342 yeas 67 nays

Senate 85 yeas 14 nays

They really jammed it thru.

RickB on March 27, 2013 at 9:17 PM

^^^

I need to look up that roll call. It would be interesting.

wolly4321 on March 27, 2013 at 9:50 PM

I wonder if social cons know that DOMA is being defended by people who think that the motives of the legislators were “improper.” I’m gonna need social cons to listen to this hearing, their values are by no means being represented by BLAG attorney.

libfreeordie on March 27, 2013 at 9:59 PM

I wonder if social cons know that DOMA is being defended by people who think that the motives of the legislators were “improper.” I’m gonna need social cons to listen to this hearing, their values are by no means being represented by BLAG attorney.

libfreeordie on March 27, 2013 at 9:59 PM

The whole thing should be argued that the plaintiffs don’t have legal standing, but that would require someone using the damn law to actually rule..

melle1228 on March 27, 2013 at 10:05 PM

My only comment is that the DOMA opponents performed extremely poorly during the merits arguments. Karlan all but admitted that gays are politically powerful as a class (“there’s been a sea change”) and neither Karlan nor Verrilli capitalized on Kennedy’s stated discomfort with the federalism implications of DOMA. Indeed, Verrilli conceded that there is no 10th Amendment or Article I problem with the law. It’s unclear why Obama does such a piss-poor job of picking Solicitor Generals (see also: Kagan).

righty45 on March 27, 2013 at 10:34 PM

The Democrats have already engaged in a revolutionary process “against” the U.S., by selecting laws to enforce and those to ignore, leave unenforced, even bragging about this process of selective acceptance or denigration of legally defined issues.

Lourdes on March 27, 2013 at 8:58 PM

With all due respect Lourdes, this is the benefit of the party in power. I think that the Rino-publicans blew their best chance in years to head off many of the problems we face today.
Instead they chose to push through idiotic bills like DOMA.

kregg on March 27, 2013 at 9:09 PM

I strongly disagree, kregg.

There is no tradition nor acceptance of any party that holds the majority in Congress or Executive Branch of denying enforcement of laws on a pick-and-choose-by-favoritism-or-whim-otherwise. And, all hires for these offices swear Oaths that contain the same, vital context of upholding, defending the Constitution of the U.S. (which means, in practical terms, of enforcing existing laws) (enforcing laws does NOT involve denying that one will enforce whichever one choses to and refusing enforcement of what else one doesn’t agree with).

Yet, the Obama Administration, including Obama the individual, have made public displays of identifying specific laws they chose not to enforce. Cabinet members of Obama’s appointment have done the same, including, examples of, the DoJ, DHS.

This is not behavior granted to or acceptable from any political party based upon “majority” standing, or, as you put it, who/which is “in power”.

What Obama and his associates have done and continue to do is literally pick which laws to enforce when they agree with them while attacking a myriad of laws and requirements they refuse to support/enforce when these things pose a contrary perspective to Obama’s political objectives.

Political is not the same as legal or legislative.

Lourdes on March 27, 2013 at 10:47 PM

The whole thing should be argued that the plaintiffs don’t have legal standing, but that would require someone using the damn law to actually rule..

melle1228 on March 27, 2013 at 10:05 PM

You made this argument in another thread tonight and I’m not sure where you’re coming from. The plaintiff in the DOMA case, Edie Windsor, clearly has legal standing. She has suffered a real harm: the payment of $360,000+ estate tax she would not have owed if her legally married spouse was a man rather than a woman. The question is whether BLAG has standing to defend the case, which would normally be the role of the Executive branch through the Justice Dept.

cam2 on March 27, 2013 at 11:04 PM

In all seriousness, the arguments made by Windsor’s attorney and by the AG were so weak, so poorly thought out, so weirdly conservative. Framing the estate tax as a “civil rights” burden. Was that woman from the federalist society. I don’t know how progressives can claim victory in this fight….

libfreeordie on March 27, 2013 at 11:19 PM

I was just identifying you and your fiance as fools. Being a fool isn’t an adorable quality I’m afraid.

We will all wait here while you justify your secular moral framework. This should be pretty good.

tom daschle concerned on March 27, 2013 at 8:49 PM

I don’t have to justify it. It’s a free country, something you republicans often forget.

triple on March 27, 2013 at 11:37 PM

How weird would it be if everyone in this country had to justify their beliefs to a church or it’s followers? We already tried that, it was called the inquisition.

triple on March 27, 2013 at 11:41 PM

FRC’s Senior Fellows Chris Gacek and Ken Klukowski, both attorneys, were at the Supreme Court for the oral arguments, and Chris said not to believe media spin that DOMA took a total beating. He reported that Paul Clement, the former U.S. Solicitor General hired by the House BLAG to defend DOMA, gave the strongest performance of any attorney in the two days of arguments.

Bullhead on March 28, 2013 at 12:12 AM

Of course they’ll strike down DOMA. Even SCOTUS judges don’t want to die suddenly of natural causes.

The Rogue Tomato on March 28, 2013 at 12:34 AM

How weird would it be if everyone in this country had to justify their beliefs to a church or it’s followers? We already tried that, it was called the inquisition.

triple on March 27, 2013 at 11:41 PM

Almost as weird as everybody in the country having to buy health insurance by government force.

Good Solid B-Plus on March 28, 2013 at 1:31 AM

In all seriousness, the arguments made by Windsor’s attorney and by the AG were so weak, so poorly thought out, so weirdly conservative. Framing the estate tax as a “civil rights” burden. Was that woman from the federalist society. I don’t know how progressives can claim victory in this fight….

libfreeordie on March 27, 2013 at 11:19 PM

Does it matter, though? Verrilli famously **** the bed during oral arguments for Obamacare, and that still wound up as a win for the left.

Good Solid B-Plus on March 28, 2013 at 1:33 AM

In fact, I question the efficacy of any oral argument since Daniel Webster argued the Dartmouth College case.

Good Solid B-Plus on March 28, 2013 at 1:34 AM

The US is getting very close to infringing on the 1st amendment.
Any federal ruling will limit the freedom of the church to practice it’s traditions.
Much like when faith based groups were told that they had to provide birth control and abortion benefits in their medical insurance offerings, they will also be told that they cannot refuse marriage to same sex couples. As an atheist I defend the right of the church, because as they fall so too do we the people.
The words “Orwellian and fascist” come to mind.

Meanwhile, there’s a big money grab in Cyprus!
What can anti-colonialism do for you? Impoverish you in more ways than you might think.
Arm yourself … bullets are the future currency.

kregg on March 28, 2013 at 6:19 AM

If it is such a “inevitability”, Why are the Trolls so agitated?

kingsjester on March 28, 2013 at 6:50 AM

Also, you didn’t answer my question. If homosexuality is influenced by societal/cultural factors and not simply genetics(and you admit it is), doesn’t the USA have a compelling state interest in encouraging heterosexuality, a lifestyle that is healthier and improves the birth rate? Isn’t that a reason for the state to ban same-sex marriage?

Good Solid B-Plus on March 27, 2013 at 4:44 PM

There’s no reason at all for the state to ban anything that is not causing direct harm to anyone’s life, liberty or property… especially something whose uglier aspects are kept in the bedroom. (And if it isn’t, well, there are already laws against lewd conduct in public.) Let the churches and religious organizations promote heterosexuality and two-parent families. Those two things aren’t going anywhere, anyway. Who hates babies enough that they want them to go away permanently?

And the aspect that SSM will be the norm and man-woman marriage will be outlawed or discriminated against is ludicrous. For the very same reason I outlined above.

TMOverbeck on March 28, 2013 at 7:16 AM

I don’t have to justify it. It’s a free country, something you republicans often forget.

triple on March 27, 2013 at 11:37 PM

Yes, well, it gets pretty easy to forget when the federal government asserts control over the banking industry, the mortgage industry, the health care industry, the auto industry, the student loan industry, the Internet, private ownership of firearms, and probably a dozen other things I’m not remembering off the top of my head.

There’s no reason at all for the state to ban anything that is not causing direct harm to anyone’s life

TMOverbeck on March 28, 2013 at 7:16 AM

There is no “ban” taking place here; people can gay it up as much as they like with the full protection of the law, and in fact more since if I kill a gay I have committed a “hate crime” but if I kill a straight guy somehow that’s less evil. People can also go to any church they want – or not – and have their union solemnized by a pastor, deacon, priest, or fill in the blank who will honor such a commitment.

The only thing at question here is sanction by the state and state-conferred benefits that flow from it. Many of those benefits can be obtained in other ways through proper use of The System ™. And civil unions / common-law marriages were offered up at one point as a way to confer those benefits without opening up churches to litigation against their own First Amendment rights. That idea was rejected in favor of arguments on principle.

Frankly, if I were black, and especially if I were one of the people facing hoses and dogs two generations ago, I’d be offended by people who say they’re facing the same all the same tribulations I had to endure, just because they have to pay an estate tax that, by the way, Republicans tried to alleviate but were blocked by Democrats who said they were only trying to make rich people richer.

The Schaef on March 28, 2013 at 7:35 AM

THIS IS YET ANOTHER ALARM BELL FOR AMERICANS / DEMOCRACY! If the USSC upholds the Ca 9th Circuit Court’s decision to strike down the decision passed through a majority vote that is a declaration to the American people that Democracy is a lie/joke, that their voice/vote means nothing, that the government can step in and overturn the will of the people – enforcing the government’s will upon the people – whenever it chooses to do so.

If the govt does not respect the people’s voice then it will / does not respect the people’s right to personal property…as in, it is only a matter of time before a government that ignores it’s citizens voice ignores their property rights and steps in like Cyprus to STEAL money from their bank accounts to fund their unethical/immoral, criminal fiscal policies/spending.

easyt65 on March 28, 2013 at 8:20 AM

Frankly, if I were black, and especially if I were one of the people facing hoses and dogs two generations ago, I’d be offended by people who say they’re facing the same all the same tribulations I had to endure…

Amen!

BTW, speaking as a Native American, I have felt mild offense hearing blacks say they have had the worst time of any people in America regarding discrimination &/or treatment….I beg to differ – check your history. From stealing land to killing to posses that land to calvary slaughtering women and childrn to incidents like the Trail of Tears (much like the Batan Death March) to forcing them onto some of the most god-forsaken lands that nobody wanted, etc…Native Americans have a ‘dog in that fight’ regarding who has been mistreated more and had a worse time. Just saying…. We’ve been fighting Illegal Immigration since 1492…and you see how that went for us. :)

easyt65 on March 28, 2013 at 8:31 AM

It would be pointless for me to apologize, as my ancestors only just got here about a hundred years ago, after the dust had settled on that issue (frankly, I think even an apology from direct descendants rings pretty hollow), but FWIW, I sympathize greatly with your forebears and the totally raw deal they got at the time.

Whenever the topic comes up, I’m always reminded of this scene from Maverick, except the only clip I found doesn’t have the money line: “You know, the next time you people come and drive us off our land, I’m gonna find a nice piece of swamp that’s so God-awful, maybe then you’ll leave us the hell alone.”

The Schaef on March 28, 2013 at 8:50 AM

Whenever the topic comes up, I’m always reminded of this scene from Maverick, except the only clip I found doesn’t have the money line: “You know, the next time you people come and drive us off our land, I’m gonna find a nice piece of swamp that’s so God-awful, maybe then you’ll leave us the hell alone.”

LOL! Hey, its all good. Unlike MANY PEOPLE TODAY, we don’t dwell on the raw deal and believe someone still owes us. Besides, we have casinos and are taking a lot of that money back from the white man! :) LOL!

easyt65 on March 28, 2013 at 9:15 AM

HAPPY GAY DAY#10 EVERYONE!!

ToddPA on March 28, 2013 at 9:18 AM

There are a lot of key news stories coming out of this Supreme Court case – one of the biggest, IMO, that the media seems to be avoiding is how one member of the USSC is making a deliberate effort to rebuke President Obama and Eric holder for REFUSING to uphold their oaths of office by fefusing to uphold the Constitution & enforce the rule of law through refusing to defend the DOMA simply because they/their agenda opposes it!

To me, its simple – the Attorney General of the U.S. refuses to enforce the rule of law / DOMA and therfore refuses to defend & uphold the Constitution. That means the GOP have a RESPONSIBILITY to go after Eric Holder and remove him from his position as Attorney General…and if the President interferes or fights it, defending Holder/not defending DOMA then he provides them with more than enough grounds for Impeachment proceedings against HIM. (Of course the GOP doesn’t have the backbone or b@lls to do this…)

easyt65 on March 28, 2013 at 2:29 PM

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