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talkpoliticsThe Federal Appeals Court in NY has ruled that the 1996 Defense of Marriage Act violates equal protection of the law and is unconstitutional. This makes the second appeals level court in the nation to do so, joining the Boston court from last year.
My take: Good. Argue all you want about whether or not states can or cannot bar same sex couples from receiving marriage licenses in their states, but DOMA is a terrible law that discriminates at the federal level against couples who are legally married in the states that DO have same sex marriage and which allows states that recognize heterosexual marriage licenses as valid across state lines to not recognize those marriages when they are from same sex couples. That's completely against the full faith and credit clause of the Constitution -- an act of Congress should not be allowed to just let states pick and choose what "public acts, records, and judicial proceedings of every other state." they respect.
My take: Good. Argue all you want about whether or not states can or cannot bar same sex couples from receiving marriage licenses in their states, but DOMA is a terrible law that discriminates at the federal level against couples who are legally married in the states that DO have same sex marriage and which allows states that recognize heterosexual marriage licenses as valid across state lines to not recognize those marriages when they are from same sex couples. That's completely against the full faith and credit clause of the Constitution -- an act of Congress should not be allowed to just let states pick and choose what "public acts, records, and judicial proceedings of every other state." they respect.
(no subject)
Date: 18/10/12 17:02 (UTC)The federal 2nd Circuit Court of Appeals has determined that Section 3 of DOMA is unconstitutional. () This is causing the usual defenders of traditional marriage to scream in horror, gnash their teeth, and wail in the dark, as is Biblically proper. Everyone else is more or less going "Meh." since we know it will go before the Supreme Court anyway.
The problem with defending DOMA is the argument that is being used (http://www.buzzfeed.com/chrisgeidner/an-1885-polygamy-case-proved-central-to-gay-couple):
There are several problems with using this polygamy case as the bedrock of your defense, including the rather ancient premises of the case (Relying on Dred Scott in this day and age? All right then.) that ignore changes in marriage (divorce, interracial) in the last 40-60 years. But that's pretty much beside the point.
The real question is what level of scrutiny needs to be applied to LGBTQ minorities. Clement's position is simply that LGBTQ minorities haven't faced any 'real' discrimination at all, and so they don't deserve the scrutiny level that discrimination issues involving gender or race do. Personally, I find it pretty hard to look at history and argue that. There's some fine stretching to be done to claim that LGBTQ people have had it easy and cool.
But the DOMA defenders could avoid all this if they could provide a legitimate, rational basis for the law. If they could, then they'd have the lowest level needed to prove that the law is 'good'. The problem is - they can't.
Religious reasons can be provided, but that isn't a rational basis.
Emotional reasons can be provided, but that isn't a rational basis.
Phobic reasons can be provided, but that isn't a rational basis.
If a rational basis could be found to bar homosexual marriage, then there would be a foundation to build on even if a stricter scrutiny were required. Stricter scrutiny would require a "compelling interest" for the law, but you can't have compelling interest if there isn't a rational reason to begin with.
I personally can't think of a rational basis for barring LBGTQ marriage. Can anyone else here provide one? How about a compelling interest?
(no subject)
Date: 19/10/12 02:37 (UTC)(no subject)
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Date: 18/10/12 17:08 (UTC)No, really, that's what's being argued here, probably from Michele Bachmann's district:
Why same-sex marriage affects my marriage (http://www.startribune.com/opinion/commentaries/171613511.html?refer=y)
(no subject)
Date: 18/10/12 19:34 (UTC)I'd rather fight for their ability to make the choices that bring them happiness.
(no subject)
Date: 18/10/12 21:28 (UTC)(no subject)
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Date: 18/10/12 18:57 (UTC)You'll have to pry the ability to claim your stay-at-home partner from their cold dead hands.
(no subject)
Date: 18/10/12 23:33 (UTC)(no subject)
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Date: 20/10/12 03:01 (UTC)Cause that argument would remove those state-created benefits for marriage, and it'd be like marriage never existed.
(no subject)
Date: 20/10/12 03:42 (UTC)(no subject)
Date: 20/10/12 04:14 (UTC)gimme two good reasons that the state should have any role whatsoever in marriage.
(no subject)
Date: 20/10/12 04:32 (UTC)If not, we can think about all the instances in which the law has to ask: who is next of kin? Who's most closely related to a person? Who gets to make medical decisions for an incapacitated person? Who gets to inherit from an intestate decedent? Who gets to sue for loss of consortium? If the law recognizes a special relationship between parents and children, why shouldn't it recognize a special relationship between spouses?
Ultimately, state recognition of marriage isn't so much about exalting an outdated and intrinsically patriarchal institution (which it is) as it is about shaping policy and governance to match the way people actually go about living their lives. That's why refusing to recognize "same sex marriage" makes no sense. Every day, men and women are making the decision to intertwine their lives more closely with members of their own sex and/or gender, in economic, social, and familial relationships. By treating such individuals as living independently, the law and government simply fails to function.
I mean - I've been living with my partner for the past five or six years. For all intents and purposes, we might as well be common-law married (for all I know, under Illinois law, we might well be). There's no good reason for him to get taxed the way he does, and me to get taxed the way I do, when I am the sole income-earner in the household. There's no good reason for the [raft of other legal consequences that could result if the state were fully and directly aware of our living situation and sought to capitalize upon it] to fail to apply to us. And yet, here we are, six years and counting, and we're no more, legally speaking, than roommates. Does that make sense, from a policy perspective?
(no subject)
Date: 20/10/12 05:54 (UTC)Someone I know had to deal with something similar because, even though his workplace recognized his relationship as legitimate, at the time NYC didn't so it caused some tax-based wonkiness because his workplace did still offer health insurance for him and his partner.
(no subject)
Date: 20/10/12 06:44 (UTC)(no subject)
Date: 20/10/12 07:20 (UTC)(no subject)
Date: 20/10/12 05:50 (UTC)It's hard to enforce those rights if the government doesn't acknowledge them on a legal level.