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

[badlydrawnjeff.livejournal.com]

I'm still not convinced DOMA is unconstitutional, but there seems to be a pretty significant tide. Happy with the end results, though.

[peristaltor.livejournal.com]

I'm curious: What part of the Constitution would defend it?

[a-new-machine.livejournal.com]

I wager he takes exception to how the question is framed and insists instead that the question is "how does the Constitution bar such a law?" and places the burden back on the law's detractors.

[underlankers.livejournal.com]

It isn't constitutional by any interpretation, no matter how distorted, of the Full Faith and Credit clause.

[oslo.livejournal.com]

You know what, never mind about my comment. I need to think a bit more about it and read the case before I comment. The equal protection clause doesn't apply by its terms to the federal government, for example. Should have waited 30 seconds before posting. Sorry.

[a-new-machine.livejournal.com]

Courts have found an equal protection element to due process, though. See Bolling v. Sharpe, 347 U.S. 497 (1954) which found that certain types of discrimination are so unjustified as to be violations of due process.

[oslo.livejournal.com]

I realize that. But notice that I was responding to Jeff, who has a very... unique... way of using the word "constitutional." So I can't just say, "See Bolling" when the question comes up: what's the textual basis for applying the EPC to federal government action?

[a-new-machine.livejournal.com]

Ah, that's a fair point. Bully on you for taking on his viewpoint on its own terms, rather than debating those terms for legitimacy/accuracy. It shows a lot more patience than I'd have.

[oslo.livejournal.com]

Taking on Jeff's views for their legitimacy is really a broader theoretical task. I think he fundamentally misunderstands what we can mean, when we refer to the "constitutionality" of a law, but developing that thought is a larger task that I just am never able to undertake given my other time constraints. And a pressing need to make the most of my stupid-time.

[oslo.livejournal.com]

So I've read the case and I think I have a better idea of how to frame the question: What kinds of distinctions, in your view, can the federal government draw? Can Congress pass a law that applies only to black people and not white people, for example?