LAT:
The U.S. appeals court in Boston became the first such court to strike down as unconstitutional the federal Defense of Marriage Act, ruling Thursday that it unfairly denies equal benefits to legally married same-sex couples.
The ruling is a victory for gay-rights advocates and the Obama administration, which had refused to defend that part of the 1996 law.
The decision sets the stage for a ruling next year by the Supreme Court on the constitutionality of the law that limits federal recognition of marriage to the union of a man and a woman.
The Boston-based judges stressed their decision did not establish a national right to gay marriage. That issue remains a matter for the states, they said.
But in states such as Massachusetts, where gays and lesbians can legally marry, the federal government cannot deny these couples the right to file a joint federal tax return or to receive a survivor’s benefit under the Social Security Act, the appeals court said.
The court’s opinion said there are more than 100,000 legally married gay and lesbian couples in the half-dozen states that have legalized same-sex marriages.
Congress passed the Defense of Marriage Act in 1996 to prevent same-sex marriages in one state from being legally recognized by all states. Usually, a couple’s marriage in one state is recognized as valid in all states. However, the federal law said no state “shall be required to give effect” to a “relationship between persons of the same sex.” Moreover, it said that under federal law, a marriage “means only the legal union between one man and one woman.”
The case decided Thursday dealt only with this latter provision involving federal law and benefits.
Make no mistake: the goal here, from a strategic legal perspective, is to take the fact the some marriages have taken place to then force all states, eventually, to recognize those marriages as part of some equal protection strategy. Or to put it another way, the strategy is to get the courts to rule that states have no say at all over same sex marriage — because even though same-sex marriage will remain a “state issue,” the fact that such marriages can occur in certain states and then must be recognized in every state is merely an instance of a back-door violation of federalism.
Meaning that either this court-led nudge (assuming it is upheld by SCOTUS) changes the marriage dynamic permanently in this country, or else we’ll ultimately see a movement for a Constitutional Amendment defining marriage in a particular way — a daunting task, and one that will likely create the kind of permanent wedge issue abortion “rights” (as found by SCOTUS) has proven to be.
Which is good news for unprincipled career politicians, who I suspect don’t much care either way, so long as there’s a battle they can use to fund raise.
Ninth Amendment? Never heard of it. Tenth Amendment? What’s that?
Because the Constitution takes its meaning from what follows it, naturally.
If we’re still arguing over gay marriage forty years from now, the way that we’re still arguing Roe v Wade forty years after the fact, I’ll actually be hugely relieved and grateful. As things stand now, I find it far more likely that we’ll be arguing over who gets the choicest bits of the rabbit we were able to catch for our dinner.
It only has meaning for those crazy Mormons and other fetishizing fanatics. All right thinking people recognize that the Constitution is just a plaything for textualists, and nothing worth getting worked up over.
Will we be arguing in Chinese or Spanish? Or perhaps some pidgin patois like Chinspanglish?
The peculiar flavor of the decidedly non-natural implementation, politically, of the natural queering of the queer is unsettling, to say the least. But, we won’t have nature bugging us anymore, except when nature takes over the lumpens. Naturally.
This is why I’ve always insisted that “leaving it up to the states” was never an option, because then equal protection would come into play (rightfully so, you can argue) and then where’s your god?
I am confident that the Courts will take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
so maybe Obama was right that the DOMA is unconstitutional
but we’ll have to wait and see what the Supreme people think I guess
Presidents don’t get to pick and choose which laws they think are unconstitutional, no matter how much they (or you) would like that power.
Though I promise that if elected, I’ll unilaterally decide that all sorts of things done in Washington are unconstitutional, and won’t be done any more. In fact, I’d probably have to shut down every Executive department until I could sort out which ones I was pretty sure had Constitutional authority.
TOTUS is as right about DOMA as he is about ObamaCare.
I’m beginning to have my suspicions about Obama actually attending law school, rosy press about his cred to the contrary.
Mission accomplished: the First Circuit’s decision leaves the issue in a state of profound instability, albeit a state rapidly resolving itself in favor of imposing it by fiat.
The slightest nudge, and it’s over. Because everyone wants another generations-long, white hot culture war.
OK, not everyone. Just the ruling class.
But if the example of Roe is understood, it really won’t be over any more than abortion is. But it will be a feather in the caps of those who aren’t shy of imposing their morality, thank you very much, and who hate the fetters of federalism. Win-win.
Speaking of Roe, it appears the D-words have killed (sic) the bill to make sex selective abortion a crime.
So, yeah, we are all Chinese now.
Culture war seems like it concedes the terms of the fight — and hence the ground upon which the fight will take place — to the left at the get go, so maybe not such a good idea on the whole.
I’m beginning to have my suspicions about Obama actually attending law school, rosy press about his cred to the contrary.
Why?
Going to law school doesn’t make you respect the Constitution, it just tells you what’s in it.
Obama and his crew aren’t acting out of ignorance: they’re acting on an ideology that holds that the Constitution is outdated and needs to be side-stepped if they’re to
get all that sweet power that’s coming to themfinally put things right in this world.I say that because he seems completely unfamiliar with the mechanisms of law. Or he, as you say, doesn’t care and is going to do it his way.
But in states such as Massachusetts, where gays and lesbians can legally marry, the federal government cannot deny these couples the right to file a joint federal tax return or to receive a survivor’s benefit under the Social Security Act, the appeals court said.
Oh, cool. So now there’s precedent when Michigan or Utah legalize polygamy because it is the right of any person to marry the person(s) they love.
Utah wants to legalize polygamy?
Ohhh, ‘cuz of the Mormons…I get it.
Maybe Obama was right that sometimes you’ve made enough money. Maybe Obama was right that when you spread the wealth around, it’s good for everybody. Maybe Obama was right that the Constitution is fundamentally flawed. Maybe Obama was right that he can force you to buy the insurance policy he dictates.
Or maybe your head is full of oatmeal.
Actually, Jeff, no it isn’t. It applies the Full Faith and Credit clause of the Constitution as the Framers intended. I could wish they would apply that clause a little more completely, like say for CHL licenses, but otherwise I wouldn’t have a problem with it.
However, just because a given state has to recognize a gay marraige from a state that allows it doesn’t mean the state has to allow it for its’ own residents. That’s where the Ninth and Tenth Amendments come into play. New York doesn’t have to allow its’ own citizens to get a CHL (or get a same sex marriage); it DOES have to recognize either of these acts performed by the Texas state government.
In other words, Roger B. Taney got it Right in Dred Scott.
In fairness, it’s been twenty years since I had to read that decision, so I don’t remember if the Court ruled against Scott on Full Faith and Credit grounds. I just wanted to point out that by the reasoning SDN offered, it would have been impossible for the Northern States to remain anti-slavery if the the Southern States made a concerted effort to undermine the Missouri Compromise.
The Rev. Otis Moss III speaks . . . to Der Spiegel.
So we can look forward to the future where some Fed (Dept. of PEDA) knocks on your door and asks who owns the pet and how long have they lived with the pet, common law and all that. Please fill out these forms and the Fed will start the process for withholding money from you for your pet should either of you decide to “Part Company” for any reason, of course all income and assets must be divided equally. Of course should the pet die having not completed the necessary paperwork the money is forfeit to the state and you as the common law partner also have to pay estate tax.
[…] Goldstein is dead solid perfect in his analysis: Make no mistake: the goal here, from a strategic legal perspective, is to take the fact the some […]