Will DOMA and Prop 8 Be Heard?

We still don’t know.

13 comments on this post.
  1. Joe:

    Sotomayor flags another troubling criminal case in a solo dissent.

  2. Semanticleo:

    Another question; When will we hear from Holder on Colorado and Washington’s finger in the DOJ’s eye? 10,000 persons will not go to jail and the Prisoner Guard Unions will be losing overtime. Can’t have no job losses.

  3. Scott Lemieux:

    I’ll almost certainly have something on that.

  4. Joe:

    I saw it noted that Holder was — upsetting some at the DEA — noticeably silent when the measures were on the ballot.

  5. Johnny Sack:

    I think DOMA would be a much more conservative step. And I think Kennedy would vote with the liberal wing-the statute isn’t that different from Romer, which he wrote.

  6. cpinva:

    how right you are:

    10,000 persons will not go to jail and the Prisoner Guard Unions will be losing overtime. Can’t have no job losses.

    not to mention, all the other groups that derive their primary reason for existence, on keeping it illegal. lots of tax dollars down that rat hole.

    if nothing is said or done, we’ll have another round of states (CA perhaps? maybe NM?) going for it. at some point, holder, or whoever is AG, will be forced to do something, and that’s when all hell breaks loose. this, i suspect, is what holder is trying to avoid.

  7. cpinva:

    how so? almost by definition, repudiating DOMA makes all the state laws/amendments moot, since they’re essentially the same thing.

    i think scalia, et al are searching, desperately, for any way to convince the rest not to take these cases. to come down on the side of the religinuts will require fantasy that maybe they can’t even stomach. so best to avoid it completely.

  8. Joe:

    I’d add that Chris Hayes had an interesting discussion on this issue and the panel had a different view of things. For one thing, many who get caught in the system won’t be helped since either they are under 21 or smoke in public places, neither protected.

  9. James E. Powell:

    I expect Holder and the president to do whatever is necessary to kick this can down the road as far as possible. Although they have to know that current policy is stupid in several different ways, they also know they will have to spend political capital to make any reasonable change while they will gain nothing politically.

    This is going to have to be a state by state thing.

  10. Joe:

    It depends how this “repudiation” is done.

    For instance, the 10A arguments don’t lie the same way. Second, a state DOMA could block any same sex marriages from arising in the state. The federal DOMA cases raise different issues, but a core concern are federal benefits. The same sex marriages would still exist w/o the federal DOMA.

    This makes the federal DOMA more gratuitous.

  11. James E. Powell:

    But avoiding it means they let the 9th Circuit decision stand. I don’t think the right-wingers will want to do that.

  12. Semanticleo:

    Just like the WOT, the War on Drugs is rich with financial motivations and will last forever. We can’t be losing jobs (DEA) or Authoritarian creds.

  13. Johnny Sack:

    Section 3 is the part of DOMA that’s being challenged. That basically just defines “marriage” (man + woman) “spouse” (opposite sex partner in said marriage) for federal purposes (Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States).

    So if struck down your same-sex spouse would now qualify as your “spouse” for the purposes of, for example, the Internal Revenue Code (etc). Whether same-sex marriage is legal or illegal in your state remains unchanged.

    And it wouldn’t repudiate state laws, because Section 2 of DOMA would stand. “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

    I.e., Congress has the authority to delineate precisely how “faithful” and “full” credit must be under the full faith and credit clause. So, Kentucky would not be forced to recognize a California same-sex marriage under their laws, but the Federal government would.

    All things considered, it would be a very narrow ruling to strike down Section 3 of DOMA. It would definitely be huge, though.

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