BREAKING NEWS -- DOMA ruled unconstitutional by NY Appeals Court

[malasadas.livejournal.com]

The 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.

Comments

[hcastaigne.livejournal.com]

Shit, you beat me. Oh well, my post as a commment:

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):

The lawyer for House Republican leaders had to reach all the way back to 1885 today when asked where the “traditional understanding” of marriage could be found in federal case law — referring to a case dealing with polygamy in the Utah territory.

That case, decided about polygamy in Utah before women were guaranteed the right to vote, came only 20 years after the end of the Civil War and more than 80 years before the court would strike down bans on interracial marriage. Today, it was one of the underlying arguments in House Republican leaders’ case that the Supreme Court recognizes a "traditional understanding" of marriage that the Defense of Marriage Act is seeking to uphold.

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?

[underlankers.livejournal.com]

The real interest behind it is fear that they'll go to Hell for allowing the obscenity of sodomy to exist unchallenged, along with such horrors as racial integration and amalgamation and all the other things that Godless Communists have destroyed America in mandating.