1st Circuit Court of Appeals overturns DOMA provisions

[Greed and Death]

A very good ruling.

As far as marriage goes I think strict scrutiny needs to be applied, maybe intermediate scrutiny for other basis of sexual orientation.

[Soheran]

I like the outcome. I dislike the ruling.

The ideal opinion would have done two things. First, it would have effectively distinguished the equal protection issues surrounding DOMA Sec. 3 from the equal protection issues surrounding state same-sex marriage bans, providing a clear path to striking down DOMA Sec. 3 without suggesting that same-sex marriage is a constitutional requirement, which is a conclusion the Supreme Court is unlikely to accept at this time. Second, it would have done that as "cleanly" as possible, not jeopardizing in any way future gay rights cases. Obviously, these are in tension with one another. Most previous DOMA cases have not done particularly well on the first requirement. Both the district court opinion in Gill, and other district court rulings like the one in Golinski v. OPM, suggest a judicial solicitude toward gay rights claims in the marriage context that go substantially beyond what a majority of the Supreme Court is likely to accept.

This appellate ruling, rather oddly, does poorly at both of these. It rejects heightened scrutiny for sexual orientation classifications, not merely citing First Circuit precedent but defending it also. It holds that Baker v. Nelson is binding as to challenges to same-sex marriage bans. It holds that DOMA Sec. 3 would pass rational basis review, on the basis of the frankly silly argument that Congress could have believed that DOMA Sec. 3 saved the government money. It spends some time trying to redeem the "tradition" justification for same-sex marriage bans, even as it rejects its applicability. Even without the discussion of Baker, much of the language in the opinion (the conclusion especially) sounds quite skeptical of judicial challenges to same-sex marriage bans. But, for all that, while the panel clearly seems to believe that its ruling is compatible with the constitutionality of same-sex marriage bans, it is not at all clear how this is supposed to work. The opinion invokes federalism concerns, but the "rational basis with bite" it uses to strike down DOMA Sec. 3 has never previously needed federalism concerns to apply. The best bet might be that the panel thinks states have a legitimate institutional interest in preserving the traditional contours of marriage that the federal government, which does not have a marriage system, does not have, but it would have been trivial to make this point about the limitation of the federal interest in marriage in its discussion of DOMA's purported rationales, yet the opinion does not do so.

This may not matter at all. It's nearly certain the Supreme Court is going to review this case next term, and the issues surrounding DOMA may already be sufficiently salient and established to the justices that the details of the appellate ruling they review make no difference. And despite all I say above, insofar as these things do matter, it is good that the Supreme Court is going to review an opinion written by one Republican-appointed appellate judge and joined by another, and an opinion that stops far short of wholly embracing gay rights positions the Supreme Court is likely to shy away from. I guess we'll have to see what happens next.

[Christmahanikwanzikah]

You are basically saying that the degradation of the moral center of America is good....

Our moral center should be inclusive and secular to the extent it is enforced by law.

My moral center is nougat, uncorrupted by the foul nature of toffee.

[Christmahanikwanzikah]

... How the fuck was I ninja'd talking about a nougat center?

Damn you, Iffy! Considering that this is not, in fact, the first time I've said this, I should've known...

[Hammurab]

... How the fuck was I ninja'd talking about a nougat center?

Damn you, Iffy! Considering that this is not, in fact, the first time I've said this, I should've known...

That was Ninja Gaiden type shit right there.

[Farnhamia]

And best of all: ancient far Greeks.

"Um...Belushiedes...you've eaten the goats."

"So? Get more"

"You've eaten all the goats. On the island. In their totality."

"I am to understand there is no goat meat today?"

"We brought you some slave babies and cheese."

"Alright. But arrange for more goats."

This reminds me just how sad Belushi's early departure is. We could have such a wonderful remake of Zorba the Greek.

Basil: I don't want any trouble.
Zorba: Life is trouble. Only death is not. To be alive is to undo your belt and *look* for trouble.

[Soheran]

I have a couple of questions for you, Neo (if you don't mind).

I don't remember if it was you or TCT who said that you/he didn't believe that the portion of DOMA that says that no state is required to recognize a same-sex marriage performed in another state violates the Full Faith and Credit Clause, but what would the argument there?

States have a long-standing right, independent of DOMA, to refuse to recognize out-of-state marriages that violate their public policy. There are some people who think this is a misinterpretation of the Full Faith and Credit Clause, but I do not think that is the consensus view, and in any case it is irrelevant, because it is very hard to believe that this traditional feature of US marriage law will be altered any time soon.

People tend not to realize, however, that DOMA Sec. 2 actually goes further than this traditional rule. Generally, there is a pretty strict requirement that states recognize the court judgments of other states. The language of DOMA Sec. 2, however, appears to exempt states from this obligation when it comes to court judgments related to a "right or claim" arising from a same-sex marriage. For example, if a same-sex couple divorces in New York, and one former spouse then moves to Texas, DOMA Sec. 2 may permit Texas to not give effect to the legal consequences of the divorce, on the grounds that it was a same-sex divorce. (To my knowledge, no state actually uses this power.) The extent to which this exemption is constitutional depends on the extent to which you buy the argument that the Full Faith and Credit Clause's delegation of authority to Congress permits Congress to exempt states completely from part of its obligation. I think the consequence of a state using this power would be sufficiently outrageous that it would be found unconstitutional if it ever came up.

Tobias Barrington Wolff, who is an expert on this question, wrote a good discussion of these issues here.

[Christmahanikwanzikah]

... How the fuck was I ninja'd talking about a nougat center?

Damn you, Iffy! Considering that this is not, in fact, the first time I've said this, I should've known...

That was Ninja Gaiden type shit right there.

Ja, it were totally Gai.

[Buffett and Colbert]

I have a couple of questions for you, Neo (if you don't mind).

I don't remember if it was you or TCT who said that you/he didn't believe that the portion of DOMA that says that no state is required to recognize a same-sex marriage performed in another state violates the Full Faith and Credit Clause, but what would the argument there?

States have a long-standing right, independent of DOMA, to refuse to recognize out-of-state marriages that violate their public policy. There are some people who think this is a misinterpretation of the Full Faith and Credit Clause, but I do not think that is the consensus view, and in any case it is irrelevant, because it is very hard to believe that this traditional feature of US marriage law will be altered any time soon.

People tend not to realize, however, that DOMA Sec. 2 actually goes further than this traditional rule. Generally, there is a pretty strict requirement that states recognize the court judgments of other states. The language of DOMA Sec. 2, however, appears to exempt states from this obligation when it comes to court judgments related to a "right or claim" arising from a same-sex marriage. For example, if a same-sex couple divorces in New York, and one former spouse then moves to Texas, DOMA Sec. 2 may permit Texas to not give effect to the legal consequences of the divorce, on the grounds that it was a same-sex divorce. (To my knowledge, no state actually uses this power.) The extent to which this exemption is constitutional depends on the extent to which you buy the argument that the Full Faith and Credit Clause's delegation of authority to Congress permits Congress to exempt states completely from part of its obligation. I think the consequence of a state using this power would be sufficiently outrageous that it would be found unconstitutional if it ever came up.

Tobias Barrington Wolff, who is an expert on this question, wrote a good discussion of these issues here.

Thanks to you and NA for your explanations. I've got that cleared up now.

[Hammurab]

This reminds me just how sad Belushi's early departure is. We could have such a wonderful remake of Zorba the Greek.

What I particularly dislike is the "Defense of Marriage" phrase.

From what are they defending it?

Is my utter disastrous infinitely befouled black hole of a dogshit marriage somehow harmed if two men or two women get married? What the fuck.

[Galloism]

This reminds me just how sad Belushi's early departure is. We could have such a wonderful remake of Zorba the Greek.

What I particularly dislike is the "Defense of Marriage" phrase.

From what are they defending it?

Is my utter disastrous infinitely befouled black hole of a dogshit marriage somehow harmed if two men or two women get married? What the fuck.

It's like gold.

Gold is valuable because it's rare. If they suddenly find a massive gold mine, the value of all other gold plummets as well.

Thus, your marriage is worth less because more people can get married. See?

[Buffett and Colbert]

What I particularly dislike is the "Defense of Marriage" phrase.

From what are they defending it?

Is my utter disastrous infinitely befouled black hole of a dogshit marriage somehow harmed if two men or two women get married? What the fuck.

It's like gold.

Gold is valuable because it's rare. If they suddenly find a massive gold mine, the value of all other gold plummets as well.

Thus, your marriage is worth less because more people can get married. See?

Isn't that a good thing? No one wants to pay marriage license fees.

[Farnhamia]

This reminds me just how sad Belushi's early departure is. We could have such a wonderful remake of Zorba the Greek.

What I particularly dislike is the "Defense of Marriage" phrase.

From what are they defending it?

Is my utter disastrous infinitely befouled black hole of a dogshit marriage somehow harmed if two men or two women get married? What the fuck.

Zorba: Am I not a man? And is a man not stupid? I'm a man, so I married. Wife, children, house, everything. The full catastrophe.

I don't know what they're defending it from. No one will ever say. Sometimes it seems only that they don't want icky gays to touch the Sacred Word^TM "marriage." Other times it seems based on Yahweh not liking man-on-man sex in tents, or something. Or maybe he just didn't like people who didn't obey his every word, like those poor sods who are descended from Abram of Ur of the Chaldees. It never has made any sense.

[Farnhamia]

It's like gold.

Gold is valuable because it's rare. If they suddenly find a massive gold mine, the value of all other gold plummets as well.

Thus, your marriage is worth less because more people can get married. See?

Isn't that a good thing? No one wants to pay marriage license fees.

I don't know about elsewhere, but in Colorado a license costs thirty bucks. Not exactly crippling.

[Buffett and Colbert]

Isn't that a good thing? No one wants to pay marriage license fees.

I don't know about elsewhere, but in Colorado a license costs thirty bucks. Not exactly crippling.

Why pay thirty when you can pay $28.46?

[Galloism]

Isn't that a good thing? No one wants to pay marriage license fees.

I don't know about elsewhere, but in Colorado a license costs thirty bucks. Not exactly crippling.

It was 65 in Arkansas.

Price gouging bastards. They know they got us.

[Hammurab]

It's like gold.

Gold is valuable because it's rare. If they suddenly find a massive gold mine, the value of all other gold plummets as well.

Thus, your marriage is worth less because more people can get married. See?

I would like to be subsidized for all the sex I'm not having, then.

[Farnhamia]

I don't know about elsewhere, but in Colorado a license costs thirty bucks. Not exactly crippling.

It was 65 in Arkansas.

Price gouging bastards. They know they got us.

You should have gone to Las Vegas. I hear they have free marriage license dispensers in the lobbies of the casinos.

[Farnhamia]

It's like gold.

Gold is valuable because it's rare. If they suddenly find a massive gold mine, the value of all other gold plummets as well.

Thus, your marriage is worth less because more people can get married. See?

I would like to be subsidized for all the sex I'm not having, then.

It could be like those farm subsidies, pay you for not doing something.

[Ifreann]

... How the fuck was I ninja'd talking about a nougat center?

Damn you, Iffy! Considering that this is not, in fact, the first time I've said this, I should've known...

My ways are mysterious. I'm like God, but with less facial hair.

[Hammurab]

It was 65 in Arkansas.

Price gouging bastards. They know they got us.

You should have gone to Las Vegas. I hear they have free marriage license dispensers in the lobbies of the casinos.

We actually did have a problem a while back with barkers for the various wedding chapels getting into kung fu fistfights in the street over where they could hang out near the license bureau to hustle couples.

[Ifreann]

You should have gone to Las Vegas. I hear they have free marriage license dispensers in the lobbies of the casinos.

We actually did have a problem a while back with barkers for the various wedding chapels getting into kung fu fistfights in the street over where they could hang out near the license bureau to hustle couples.

That sounds like the premise for a music video, not a problem.

[No Water No Moon]

It was 65 in Arkansas.

Price gouging bastards. They know they got us.

You should have gone to Las Vegas. I hear they have free marriage license dispensers in the lobbies of the casinos.

They have to do something to protect the sanctity of this sacred institution.

[Galloism]

You should have gone to Las Vegas. I hear they have free marriage license dispensers in the lobbies of the casinos.

We actually did have a problem a while back with barkers for the various wedding chapels getting into kung fu fistfights in the street over where they could hang out near the license bureau to hustle couples.

Having been employed as an officer in Florida...

That doesn't even strike me as particularly odd.

[No Water No Moon]

We actually did have a problem a while back with barkers for the various wedding chapels getting into kung fu fistfights in the street over where they could hang out near the license bureau to hustle couples.

Having been employed as an officer in Florida...

That doesn't even strike me as particularly odd.

It made a change from capping zombies.