Federal Appeals Court Finds Defense of Marriage Act to be Unconstitutional

A unanimous 3-judge panel of the U.S. Court of Appeals for the 1st Circuit ruled today that Section 3 of the Defense of Marriage Act, which denies federal benefits to same-sex couples who have been lawfully married in states that permit gay marriage, violates the U.S. Constitution. Here are some snippets from the majority opinion of Judge Michael Boudin, a judicial conservative appointed to the 1st Circuit by President George H.W. Bush:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.  In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to  interpretation.  We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case....

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.  Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

Download the decision here. For more on the legal battle over gay marriage, check out Reason's previous coverage.

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  • Tman||

    Interesting that two of the biggest social issues that so-cons constantly rail on and on about -Gay Marriage and Evolution- were both shot down by Bush-appointed conservative judges.

    It's almost like the system works or something.

  • Emmerson Biggins||

    I think a marriage is,by definition, between a man and a woman.

    But the quote does actually seem pretty damn reasonable. I wish they'd drop the "rational basis" crap and just go right with Equal Protection, but still, it's nice to read an opinion that seems like its written by an actual sentient being trying to figure out the right thing, instead of being written as a rubber-stamp for increasing government power or as just a bunch of partisan axe grinding dressed up as an argument to reach a pre-concieved end.

  • Tman||

    Our system is easily criticized and for many good reasons, but I still have yet to see an alternative that at the very least allows for intelligent people to look at things logically and make the right decision based on evidence and rule of law.

    The simple phrase "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest" is in line with the way our system was designed and it's refreshing to see the occasional sprouts of sanity emerging from the Judicial branch.

  • Alex||

    Marriage is, by definition, whatever interpersonal relationship qualifies to enroll in the state's "marriage benefit program".

  • robc||

    Marriage existed before the state.

    Or at least any of the current ones.

  • kinnath||

    Yes. And marriage has always been about creating a household, determining property rights, and managing inheritance rights (with a particular focus on excluding bastard children from inheritance).

    Only one of those three topics has any direct dependency on the genitals of the married couple.

  • robc||

    Also concerned with children and intercourse. Both of which depend on the genitals.

    The point is, that is neither here nor there. Get the state out of the marriage business altogether and problems all solved for everyone.

  • kinnath||

    Children and intercourse are sub-factors to the inheritance matter back when the only way to determine bloodlines was by limiting who a women could fuck.

    The issue isn't how the state decides who is or isn't married. The issue is the state making private parties tow the lion on who is or isn't married.

  • Pi Guy||

    Tow the lion?

    What - did he break down on the side of the road?

  • kinnath||

    Are you new here?

  • Pi Guy||

    No. I was just pointing out the expression is "toe the line". You know, like to stand where you're supposed to.

    One kilopardon. Just a little humor there, admittedly, very little. Not intended to offend.

  • kinnath||

    I believe all of the regular commenters here at HnR know what the correct phrase is and many choose to use "tow the lion" as irony or sarcasm. It's our version of "teh" and "pwn".

  • kinnath||

    The courts (and therefore the states) have to be able to determine who is a spouse to whom for both civil and criminal matters (the topic of spousal priviledge regarding forced testimony is particularly important to me).

    So two people come before a judge and say that they are married. The judge has to decide yes or no. This is fine for the purposes of a trial.

    The problem is when this decision turns into state mandates that 3rd parties have to provide spousal benefits to everyone the state says is married.

  • kinnath||

    The courts (and therefore the states) have to be able to determine who is a spouse to whom for both civil and criminal matters (the topic of spousal priviledge regarding forced testimony is particularly important to me).

    So two people come before a judge and say that they are married. The judge has to decide yes or no. This is fine for the purposes of a trial.

    The problem is when this decision turns into state mandates that 3rd parties have to provide spousal benefits to everyone the state says is married.

  • Tonio||

    I think a marriage is,by definition, between a man and a woman.

    Which definition? Where?

    Convenient setting up a strawman then appealing to its authority.

  • sloopyinca||

    I think he was just stating an opinion. Based on the rest of his comment, I don't think he wants that opinion to have the force of law.

  • ||

    I have no problem with Emmerson having his own definition of marriage, just with people using the state to force that definition on everybody.

  • R C Dean||

    Apatheist, I am sympathetic, but how is the state forcing the "man/woman" definition on everybody different than the state forcing the "whoever"
    definition on everybody?

  • ||

    I imagine the law could be structured such that no definition is given. I think defining marriage and deciding whether the government grants special privileges to those who are married are separate issues. Maybe having only civil unions would be better (and obviously no government involvement except contract enforcement would be best) but frankly I don't give a shit what word the government uses so long as it is provided equally. If gay marriage opponents are so adamant about the definition of marriage then they should be advocating removing the word from government control entirely. Instead they want the word itself protected by government.

  • Bob Straub||

    I agree. Civil unions, open to all consenting adults and registered with the state, to take care of all the legal marriage benefits. Let churches and other fraternal organizations add to that as and if they wish.

  • robc||

    No need for civil unions. Get rid of "legal marriage benefits".

  • Pi Guy||

    ^THIS^

  • Tulpa the White||

    The gay decision involves a different Bush.

  • Tman||

    True, but both were elected by tapping in to their base of socons, which was my point.

  • sarcasmic||

    You can't call corn syrup "sugar", but you can call two dudes "married".

    Whatever.

  • Sevo||

    sarcasmic|5.31.12 @ 11:57AM|#
    "You can't call corn syrup "sugar", but you can call two dudes "married"."

    Yeah, and purple, too!
    I'll bet you knew that was a red herring and hoped no one would notice.

  • sarcasmic||

    Words mean things.

  • Proprietist||

    How politically correct of you, sarc.

  • sarcasmic||

    SSM is politically correct. Husband and wife is not.

  • Proprietist||

    Nope, political correctness does not mean "whatever liberals get offended by." Conservatives are just as PC when they claim that soldiers must be heralded as "heroes", that blasphemy should be against that law, and that one can't use the word "marriage" when talking about gays. Also, viva "freedom fries"!

    Political correctness is defined as "the avoidance of forms of expression or action that are perceived to exclude, marginalize, or insult certain groups of people" - in this case, using marriage in the context of gays is insulting to religious conservatives. Therefore we should avoid it and pick another word?

  • ||

    Words mean different things to different people.

  • sarcasmic||

    There is a difference between what words mean, and what some people want (or as my two year old says "Wan!") words to mean.

  • ||

    I know you want "marriage" to mean between a man and a woman but that definition has also changed throughout history. If a Muslim marries 4 women does it not count because it doesn't match your definition? Changing the genders and number of participants has no effect on the essential meaning of marriage.

  • sarcasmic||

    that definition has also changed throughout history.

    In all cases throughout history, without exception, for thousands of years, it has involved members of the opposite sex.

  • R C Dean||

    And, apparently, for a majority of people in this country, "marriage" still means "man/woman".

    The real issue in these cases isn't so much "what does marriage mean", it is "who decides what marriage means."

    Traditionally, this has been the states. The feds only stepped in when a state tried to change the commonly accepted and historical definition for Constitutionally impermissible purposes (that is, when the states tried to redefine marriage to exclude mixed-race marriages).

    The issue is, what's the baseline definition of marriage, and who gets to say? Should it be the states? The judiciary? The feds? The Equal Protection argument assumes that the definition has changed, as I read it, but that begs the question.

  • robc||

    Traditionally, this has been the states.

    That is recent. Traditionally, it was religion or just declared. The state has only been involved for a few hundred years.

  • Heroic Mulatto||

    Wow, you've just displayed your massive ignorance of Classical Greece and Rome, Persia, certain Native American cultures, China and India. And that's just off the top of my head.

  • R C Dean||

    Replying to who, HM?

  • Heroic Mulatto||

    Replying to sarc.

  • sarcasmic||

    tolerating homosexuality != same sex marriage

  • Proprietist||

    "In all cases throughout history, without exception, for thousands of years, it has involved members of the opposite sex."

    As I've said repeatedly, there have been exceptions in Ancient Rome, Ancient China, etc. Heck, Nero was likely married to a dude.

  • Heroic Mulatto||

    Words do have meanings, but those meanings change over time. For example, the word "nice" orginally meant something that was foolish or silly, by way of the Latin "nescius" - "ignorant".

    I'll leave you to parse my meaning when I say that I think you are a "nice" person, sarcasmic. ^_^

  • Scarcity||

    Oh good, I've actually been historically honest in my pained response to receiving terrible gifts.

  • Sevo||

    sarcasmic|5.31.12 @ 12:23PM|#
    "Words mean things."

    You are correct. You should use them such that they do.

  • Emmerson Biggins||

    what is the word that means a man and a woman engaged in an (ostensibly) lifelong pair bond?

  • sarcasmic||

    It used to be "marriage". But now "marriage" means a homosexual couple.
    "Hetero-marriage" is the derogatory term used to describe a pair of breeders.

  • Proprietist||

    Why not "matrimony" if we're only talking about marriages that are structured ostensibly to result in motherhood?

  • Tonio||

    ESAD, Sarc.

  • sarcasmic||

    Classy

  • Bill Turner||

    Wonder if Clarence Thomas will support or reject DOMA?

  • sloopyinca||

    If he values recognition of contracts across state lines, he's not going to have a choice. Upholding DOMA will strike at the heart of our entire concept of contract law.

    DOMA is dying, and the coup-de-grace is going to come from a conservative Supreme Court.

  • Pro Libertate||

    That's unpossible, as it is Obama who has freed the gays.

  • Tulpa the White||

    Marriage isn't a contract.

  • sloopyinca||

    Yes it is, you stupid bastard. And if one state recognizes a gay marriage exactly the same as it does a heterosexual marriage, every other state is bound to recognize them the same way.

  • Bill Turner||

    Marriage shouldn't be a contract supervised by the state. I'm surprised we don't yet have sex quotas and maximum calorie requirements on cakes.

  • sloopyinca||

    Please refer to my myriad comments on the matter lamenting state-sanctioned marriage of any kind.

  • Alex||

    Indeed. Much of the "debate" is a result of conflating marriage qua relationship with marriage qua state benefit program. Any aspect of the former can be met presently by anyone. It is only the latter that is affected by the current political fight.

  • Tonio||

    Marriage is both a civil contract recognized and adjudicated by the state, and a sacrament/rite/whatever administered and recognized by various religious groups. These two sorts of marriage generally overlap, but there are a lot of times where they don't, ie the polygamous practices of some Mormons, Jews and Muslims.

  • DJF||

    "Marriage isn't a contract."

    Agreed, once the State gets involved in controlling marriages it is no longer a contract, its a law. Just like a drivers license or a dog license.

    It a law and its the State who gets to set the rules. Who can and cannot get married. Who can and cannot end the marriage. The State can change the rules of the marriage without the married peopled permission. The State can give both civil and criminal fines and even jail if the State imposed laws are not followed. The State can declare people to be married even if they have not agreed, (Common Law couples who cohabitate). The State is the one who determines the status of children from the marriage.

  • Heroic Mulatto||

    Marriage isn't a contract.

    It is to Jews. As well as any culture that practices dowry and/or brideprice.

  • ChrisO||

    Actually, it's even more of a contract in those cultures. It's simply that the parties to the contract are different. The bride in our culture is a party to the contract; in those cultures, she's merely the property changing hands between the parties.

  • ChrisO||

    Oops. I engaged in a failure of reading comprehension. You and I are in agreement.

  • Heroic Mulatto||

  • sloopyinca||

    he would froth at the mouth and enter into seizures.

    So you're saying he would act normally?

  • Tulpa the White||

    Maybe you should move to Israel. Or Somalia?

  • robc||

    It was at one time.

    It isnt anymore, in any real sense.

  • Tulpa the White||

    And even if it was a contract in the usual sense, if I sign a contract in PA with my friend to perpetually provide me with fireworks for $10 a pop, and then we both move to NYS, guess what? That contract is null and void because fireworks are illegal there.

  • sloopyinca||

    The contract would still be valid, however you would be in violation of the possession law in NYS.

    Again, if NYS honored contracts from PA regarding the sale of any fireworks, they would be bound to honor yours equally.

  • Alex||

    The federal government gets to make that decision. It's the actual point of the Commerce Clause.

  • Alex||

    And the second half of the Full Faith and Credit clause.

  • R C Dean||

    I'm still wondering why, under the FFC clause, my driver's license (and marriage license) is recognized everywhere, but my concealed carry license is not.

  • Alex||

    I imagine due to reciprocity agreements, and/or to the second half of the FFC clause.

  • Tulpa the White||

    While I would like my LTCF to be valid everywhere, my gut tells me that the problem is with the drivers licence part of that, not the CCW part. It's a stretch to call either an Act, Record, or Proceeding.

  • R C Dean||

    The contract would still be valid,

    Perhaps, perhaps not. Contracts for illegal activities are generally not valid (or, at a minimum, enforceable, which may be the same thing).

    If you agree to kill my boss for me, and do so, and I refuse to pay you, you aren't going to get a court to recognize that as a valid/enforceable contact.

  • Tulpa the White||

    I guess no-fault divorce also struck at the heart of our entire concept of contract law; what other contracts can be nullified because one party isn't happy with the arrangement after a year?

  • sloopyinca||

    Divorce is a separate contract that voids the marriage contract. It is not an extension of it. When people move to a no-fault state, they are still married. The no-fault law only applies when they move to enact a new contract (the divorce contract).

  • Eduard van Haalen||

    Divorce can only be called a contract if it's worked out between the parties. Either party can get no-fault divorced over the objections of the other. So even when there's an agreement between the divorcing couple, it's under the shadow of the law allowing unilateral abrogation of the marriage.

  • Tulpa the White||

    Divorce is a separate contract that voids the marriage contract.

    Come on, sloopy. This is just a ridiculous claim.

  • sloopyinca||

    As one that has signed two of one and one of the other, I'm pretty sure I'm in a better position to discuss this than you.

    Hell, you thought the words a minister utters during a ceremony has the full weight of the law.

    BTW, the term is "dissolution of marriage," and it dissolves (nullifies) the marriage contract that was in place. It establishes the relationship of the parties going forward and establishes compensation (if any is due) from a prior relationship.

  • Tulpa the White||

    As one that has signed two of one and one of the other, I'm pretty sure I'm in a better position to discuss this than you.

    I have no method of verifying your credentials, so that's irrelevant.

    But if what you say is true, perhaps you could speculate as to what would have happened if you refused to sign the divorce "contract". Would the marriage contract still be in force?

  • sloopyinca||

    But if what you say is true, perhaps you could speculate as to what would have happened if you refused to sign the divorce "contract". Would the marriage contract still be in force?

    No, that's the whole point of "terminable at will" do you not get? I'll repeat this part just for you: The state's marriage contract can be terminated at will by either party at any time with or without cause. And other provisions for the marriage's terms must be agreed-to by both parties in a pre-nup or post-nup agreement.

  • Tulpa the White||

    So the legal fight to get no-fault divorce was totally meaningless? We had no-fault divorce all along?

  • R C Dean||

    what other contracts can be nullified because one party isn't happy with the arrangement after a year?

    I have a database full of such contracts. Any contract can be terminated if the other party breaches it, of course. And its a rare contract indeed that doesn't have some sort of termination provision.

    Contracts that are completely silent on the issue are generally terminable at will.

  • Tulpa the White||

    Any contract can be terminated if the other party breaches it, of course.

    What part of "no fault" do you not understand?

    "Till death do us part" doesn't sound like complete silence to me.

  • sloopyinca||

    The marriage contract is the part you sign that is endorsed by the agent of the state. It makes no mention as to the term of the contract. The verbal ceremony has no weight with the state.

    If you ever get married, I suggest you look at what you are signing as opposed to what the minister/judge/JOP is saying to you. No-fault divorce fits perfectly in with the state's marriage contracts.

  • Tulpa the White||

    I'm not getting married any time soon. Are you telling me they have "termination provisions" in the marriage contract? That would be amazing if true.

  • sloopyinca||

    There are no defined termination provisions in the contract, but they are codified and valid as a matter of law. There is no established term of the marriage in the contract, and as both parties enter into it voluntarily and no penalties are specifically spelled out for one who ends it, it is considered "terminable at will."

    What do you think pre-nuptial agreements are for? It's not just to protect assets, but to often force people to stay married for a certain term.

  • Tulpa the White||

    There are no defined termination provisions in the contract, but they are codified and valid as a matter of law.

    Which means that a state law voiding the marriage is not impairing a contract, it's just changing a law. Even if we were to assume marriage is a contract in the usual sense.

  • sloopyinca||

    No, it's voiding the existing contract, which is all a marriage is according to the state.

    Study up on what a marriage is according to the state. Find out the terms of the marriage are, what the responsibilities of the parties are and what the terms are for dissolving the union. You'll find that they are pretty simple, are completely voluntary and can be terminated by either party with or without cause at any time without penalty unless the parties have entered into a pre-nuptial or post-nuptial agreement spelling out what penalties will be imposed. At least that's the case in no-fault states.

  • Tulpa the White||

    It doesn't force them to stay married, it penalizes them for ending the marriage earlier than desired. Subtle but important difference.

    You can't FORCE someone to stay married to you.

  • sloopyinca||

    You can't FORCE someone to stay married to you.

    No, but you can impose penalties for early dissolution of the marriage and/or breaching other terms agreed to in a separate contract.

    Did you know that in a no-fault state, one cannot file for dissolution on grounds of adultery, but those terms can be established in a pre-nup as grounds for compensation?

    I think you're conflating the state's part of a marriage contract with a separate one two parties enter into that can be enforced by the state.

  • robc||

    The verbal ceremony has no weight with the state.

    Hence the bullshit of state marriage contracts. Oral contracts should have full weight.

  • Pi Guy||

    Exactly.

    I was best man in a wedding in '98. Groom's parents when they were still a priest and nun and conceived while in the order.

    Anywho, some 25 years later, the family wanted Father Mike, an old family friend to officiate at the ceremony. PROBLEM: Fr. Mike's JoP license (yes - clergy must have one in order sanction a legal marriage) was with NY, wedding in PA. Paperwork took too long. Sooooo...

    Fr. Mike "performed" the ceremony. Then we went into the dinning room (wedding on their farm) and had another family friend who was a PA JoP officiate the signing of the papers.

    IOW: the _marriage_ didn't occur until we signed the paperwork.

  • R C Dean||

    What part of "no fault" do you not understand?

    What poart of "it is a rare contract indeed . . ." and "terminable at will" don't you understand?

  • Tulpa the White||

    I'm going to need to see the "terminable at will" claim fleshed out some more. I find it hard to believe that a contract is unilaterally voidable if it fails to include nonperformance provisions.

  • sloopyinca||

    What "performance" could possibly be required by the state? Again, that is what pre-nuptial agreements are for. The state requirements for a marriage are simply that each person has voluntarily entered into it, and each can voluntarily terminate it with or without cause without compensation unless agreed to by both parties (in a pre-nuptial or post-nuptial agreement).

  • Tulpa the White||

    Prenups are a weird case because they weren't widely enforceable until fairly recently, because the states viewed them as corrupting of marriage.

  • sloopyinca||

    Prenups are a weird case because they weren't widely enforceable until fairly recently, because the states viewed them as corrupting of marriage.

    [citation required beyond wikipedia (because they don't cite the claim)]

  • robc||

    What "performance" could possibly be required by the state?

    Prior to no-fault laws passing, states enforced a number of performance provisions.

    For example, divorce would be allowed if the non-filing party was unfaithful.

  • Mickey Rat||

    I believe annulements can be had if the marraige is not physically consummated, and "alienation of affection" i.e. a continuous refusal to have sex with your spouse is grounds for divorce.

  • mb||

    One thing I would like to see, stop using the word right, permit or anything else like that when it comes to gay marriage. You can be gay and get married in Texas. The state will not recognize that marriage or bestow special privileges on the married couple - but it can not stop them from being married.

  • ||

    That's fine so long as the state isn't doing so for any marriages, gay or straight.

  • Alex||

    Except it's not fine to the gay marriage advocates. Notice they aren't called "special privileges opponents". They want their goodies; "equality" is just a fig leaf.

  • ||

    They want equal access to the goodies. Either stop giving out the goodies or give equal access.

  • Alex||

    Sure, except...

    Adding gay couples to the "eligible to enroll" set won't get you "equal access". The discrimination border isn't between gays and straights, it's between those in approved relationships and those not in approved relationships.

    And "stop giving out the goodies" will become that much harder to do with slightly more people benefitting from the goodies.

  • ||

    The discrimination border isn't between gays and straights, it's between those in approved relationships and those not in approved relationships

    Doesn't change what I said, I think polygamy should be legal too.

    And "stop giving out the goodies" will become that much harder to do with slightly more people benefitting from the goodies.

    This is irrelevant.

  • Alex||

    It's relevant to your suggestion of "stop giving out the goodies" as a solution. The fact remains that gay marriage fails to achieve either form of "equality" you proposed, and makes one of them more difficult.

    Gay marriage is about benefitting from the status quo discrimination, not ending it.

  • Tonio||

    Alex, you'll have more credibility if you show some bona fides on your track record of working to disentangle the state from ALL marriages - straight, gay, pre-existing, planned.

  • Alex||

    I'm not the one making a claim that my advocacy is about "equality". Gay marriage advocates are, and as such they're full of shit.

  • ||

    Equal treatment under the law.

  • Alex||

    As with all such state benefit programs, it is inherently discriminatory. Or do you really think "equal treatment" means every state benefit program must be made available to everyone (e.g., millionaires getting food stamps)?

    So either fight the marriage benefit program itself, or stop pretending it has anything to do with "equality".

  • ||

    Or do you really think "equal treatment" means every state benefit program must be made available to everyone (e.g., millionaires getting food stamps)?

    Yes. And of course I oppose all those programs and want to abolish government marriage. In the meantime the government shouldn't be able to discriminate between who can get married. Every argument you have made could me made just as easily for supporting restricting marriage to two white people or two people born within two years of each other or only interracial marriages. How is this any different?

  • Tulpa the White||

    But apparently discrimination against couples who don't want to get married is just fine?

    The problem I have with jumping right to the application of EPC, as these decisions often do, is that they never demonstrate how equal protection is being denied in a significantly different way from the usual denials.

  • sloopyinca||

    I have often said that the state has no business sanctioning marriage, and special categories/tax exemptions/benefits for people with children should fail the Equal Protection test.

  • ¿Ex Nihilo?||

    I have often said that the state has no business sanctioning marriage, and special categories/tax exemptions/benefits for people with children should fail the Equal Protection test.

    This +1040

  • Tulpa the White||

    Easy for you breeders to say when you know it won't happen.

    What about the commitmentphobes? What about the compulsive masturbatoros?

  • Heroic Mulatto||

    What about the compulsive masturbatoros?

    Well, if you're going to do that to a bull, expect to be gored to death.

  • sloopyinca||

    Easy for you breeders to say when you know it won't happen.

    Do I detect the construction of a strawman? Anybody with a lighter, matches or an open flame please leave the area immediately!

  • Tulpa the White||

    You have claimed several times to be an evolutionary non-dead-end. Therefore it's not a haydude.

  • sloopyinca||

    The strawman is in claiming why we are making the argument when you have no evidence to support the assertion. No offense, but you have no idea why I or anybody else on here supports an end to state-sanctioned marriage.

    But here's a hint as far as my reasoning: it has a lot to do with my religion.

  • Tulpa the White||

    I thought Pastafarians were against marriage entirely.

  • Pi Guy||

    I am, however, fully in favor of state-sponsored access to the beer volanoes and stripper factories.

    I think that'll be my main platform plank: "STRIPPERS FOR EVERYONE!"

  • ||

    Now that is a policy I can get behind.

  • Pi Guy||

    Vote Pi 2012!

  • Emmerson Biggins||

    I say progressive income tax should fail the Equal Protection test.

  • ||

    I was just reading about this on Yahoo. The court didn't rule on the part where DOMA says states don't have to recognize gay unions performed in other states.

    That's the part that is the most incongruant to me. Screw the federal benies, but if Texas recognizes a 24 hour vegas wedding, it should recognize Adam Steve's that was done in Vermont.

  • ||

    Damn you no amperes and.

  • Tulpa the White||

    But that's a policy issue, not a constitutional issue.

  • ¿Ex Nihilo?||

    But that's a policy issue, not a constitutional issue.

    Wouldn't that run into the 'full faith and credit' clause in the constitution?

  • Alex||

    Read the rest of the clause:

    Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another.
  • Proprietist||

    And the privileges and immunities clause. Screw federalism on this issue.

  • Tulpa the White||

    That attitude is why federalism is pretty universally screwed.

    Immanuel Kant would be ashamed of you.

  • Proprietist||

    Sorry, I'm not a federalist. I'm a libertarian who thinks the 14th Amendment is more libertarian than the 10th, and I will support any federal mandate to prevent state governments from abusing my liberties, which I consider implied by the 9th Amendment and applied to state laws by the 14th. I will also fully support any effort from states to overturn and subvert abusive federal policies and laws.

    The decision in Lawrence was libertarian decision where federal courts overrode bad state laws. Had the dissent in Kelo won, this would have been the same. Libertarians would never say that the federal court shouldn't rule on state law that violates federally protected rights just because the state courts determined it doesn't violate state law.

  • Tulpa the White||

    Kelo is a different matter, as it involves a right that's actually there in the Bill of Rights.

    The 9th amendment is intended to prevent the BoR from being seen as an exhaustive list of what the govt can't do; it's there to protect the enumerated powers doctrine. It's not the rights Rorshach inkblot that the leftists have turned it into.

  • Proprietist||

    The 9th Amendment guarantees that just because rights and liberties are not listed in the BoR doesn't mean they don't exist and can be taken away at whim by the state.

  • Tulpa the White||

    There's a lot of arbitrariness in the FFC clause. For instance, few would argue that if one state licenses mentally ill people to carry concealed weapons, that every other state with a licensing system has to allow them to do so as well.

  • Pi Guy||

    This is actually kind of a good point. I think...

  • Proprietist||

    States shouldn't need to license guns, because the right to bear arms is guaranteed federally. If anyone licenses, it should be the federal government.

    Since marriage is a condition for federal benefits, immigration, etc. marriage licenses should also be issued at the federal level, if issued at all.

  • Tulpa the White||

    And I guess every trial and warrant should be done by the feds, too, since those are in the BoR?

  • Proprietist||

    Not necessarily, but they should (and do) follow consistent federal guidelines like the 4th and 5th amendments, Miranda Rights, etc. I'd support a constitutional amendments forbidding asset seizure without due process - and any asset seizure should benefit the direct victims or a general victims fund, not the police donut fund.

  • Rasilio||

    Does this mean I gotta go out and get gay married now?

  • Eduard van Haalen||

    The court responded to "concern" about state courts creating SSM by giving the following assurances: "almost all states have readily
    amended constitutions, as well as elected judges, and can protect
    themselves against what their citizens may regard as overreaching."

    So the voters get to fire their state judges and change their state constitutions. Which is reason not to be worried about state courts imposing SSM, because the state courts and state laws are ultimately accountable to voters.

    In Iowa, for instance, the voters have fired a couple of judges for imposing SSM.

  • Tulpa the White||

    Except under Romer, once they change the state constitution it can't be changed back.

  • Eduard van Haalen||

    I don't think the 1st Cir wanted us to notice that part.

  • kinnath||

    The Iowa Supreme Court did not impose same-sex marriage on Iowa (as California's Supreme Court did). The Iowa court ruled that a state version of DOMA violated the equal protection clause in Iowa's constitution. Not activism was required.

    A minor So-Con rebellion managed to unseat a couple of justices. And there is now a movement amend the Iowa constitution to ban same-sex marriage, although I cannot imagine that it will get anywhere.

  • sarcasmic||

    I always find it amusing when "libertarians" want to use force of government to redefine marriage.

    And here I thunk libertarians were about less force, not more.

    I'd have thunk libertarians would want to get government out of the marriage business, not use it to force high minded, politically correct, cultural change on the ignorant proles who are too doopid to derpity derp know what's best.

  • ChrisO||

    And many (most?) libertarians want exactly that. The issue is what do we believe should be the compromise in the absence of getting what we actually want.

  • Heroic Mulatto||

    I find it amusing that you view your parochial, 19th Century-view of marriage to be the authentic one. Who's "changing" the culture again?

  • Tulpa the White||

    Um, what? The concept of marriage as between members of opposite gender was completely universal throughout the world until a few decades ago. Even past societies that tolerated or embraced homosexuality didn't deviate from that view of marriage.

  • sarcasmic||

    What changed a few decades ago?

    Hmmmmmm.

    Birth control pill... Easy abortions... Artificial insemination... Welfare state...

    Control over reproduction and government replacing the father as the primary provider for the family.

  • Tulpa the White||

    And computers, geared bicycles, and plastic.

  • sloopyinca||

    I blame Nintendo.

  • Bob Straub||

    What about Federal court decisions nullifying state laws against mixed race marriages? A step towards achieving equality before the law, which needs to be extended to all those against whom there is still discrimination.

  • sarcasmic||

    Mixed race marriages were banned because of eugenics.
    They didn't want to dilute the purity of the races.
    Since same sex couples cannot reproduce, the comparison fails.

  • Tulpa the White||

    Race is a much more arbitrary classification, so those laws had to be fairly capricious. ie, you had to settle the question of whether a 5/16 black man could marry a 7/16 black woman, not to mention the question of which ethnicities counted as Caucasian etc.

    Gender is not arbitrary at all, particularly for the purposes of marriage.

  • Brett L||

    So what? Just because people were wrong forever doesn't mean they should continue to be so.

  • ||

    Let me know how that whole getting the government out of the marriage business works out for you.

    (I totally advocate getting the government completely out if it is at all possible. But until that day comes people should be able to marry whomever they choose.)

  • Tulpa the White||

    Then don't pretend this is a libertarian issue.

  • Sevo||

    Tulpa the White|5.31.12 @ 1:36PM|#
    "Then don't pretend this is a libertarian issue."

    Uh, yes it is.

  • Tulpa the White||

    the power of assertion!

  • Alex||

    The fact that you think of this issue as "people should be able to marry whomever they choose", demonstrates you fail to grasp the fundamentals. It is already the case that people can "marry whomever they choose", the state just won't give you special benefits for it. Gay marriage is not about equality or liberty, it's about access to special treatment, the very antithesis of equality and liberty.

  • ||

    So I can go and marry another woman and not be thrown in jail for it?

    As sloopy stated before, you don't know every person's reason for arguing for gay marriage. Just like I don't know that every person that argues against it does so because they are hypocritical christian bigots. Which is why I tend to think that they are arguing from a place of reason, even if I don't agree with it.

    You do realize that there's more than just free government monies for married couples right? Like the ability to get divorced in the state where you reside. How are Tulpa and I supposed to get divorced here in Texas when the state says our marriage doesn't even exist? (For example)

  • Pi Guy||

    picturing unholy union of Tulpa and DesigNate *shudder*

    NOT that there's anything wrong with that...

  • Alex||

    So I can go and marry another woman and not be thrown in jail for it?

    You can't marry in exactly the same way rich people can't get food stamps. Your error is thinking this debate has anything to do with "being married" in the relationship sense. Why is this so hard for people to grok?

  • Alex||

    And to answer the question, no you won't be "thrown in jail" for having a marriage-relationship. The gay marriage fight is wholly orthogonal to anti-sodomy laws (which would the modern analogue to miscegenation prohibitions of yore).

  • ||

    Actually, yes you will. Do some research.

    And it IS about more than just goodies, hence my divorce comment.

  • Alex||

    You linked to an anti-sodomy law. Perhaps you should read what I wrote before you try (and fail) to respond to it.

  • kinnath||

    It is not possible.

    So long as the civil courts exist to resolve disputes between people, the courts will be required to recognize who is married to whom to resolve some types of disputes.

  • Tulpa the White||

    Not if marriage entails no legal rights and no legal duties, they won't.

  • Alex||

    I think most people that support gay marriage are really just fighting the bigotry expressed by some of those opposed to it (while keeping "straight marriage"). But libertarians should be able to recognize that in so doing they're just further solidifying the state's discriminatory role. If that's a trade-off one is willing to make, fine, but they should be honest about it.

  • Tulpa the White||

    For a lot of the proponents it's a cock-tail party issue. You know, something you can talk to your leftist social acquaintances without looking like a loon, unlike the issues of indefinite detention, summary executive execution, and eminent domain abuse.

  • Proprietist||

    Funny, most of the "Leftists" I know are pretty virulently opposed to those things listed. Guess that's anecdotal evidence, but hey, I'm just trying to fit in and show them how cool I am. I'm certainly not genuinely concerned about the government dividing their chattel into different classes with different special privileges and equal taxation.

  • ||

    Nope, you're just a pink drink swilling cosmotarian like Matt and Nick.

  • ||

    The libertarian approach pretty much follows the establishment clause of the Constitution. The government has NO business saying what is or is not a marriage.

    What more fundamental establishment can there be, than denying a religion or philosophy the ability to get married and raise their children with their beliefs?

  • Alex||

    The government has NO business saying what is or is not a marriage.

    And it doesn't. It says what does or does not qualify for its "marriage benefit program".

  • ||

    Put simply, states are bound by the U.S. Constitution to recognize the acts of other states. A contract in one state is a contract in another state. A will made in Massachusetts is binding on the assets of the deceased in New Jersey.

    Likewise, if a man and woman get married in Las Vegas, their marriage is valid and enforceable when they go home to Florida.

    And the same applies to when a man marries a man or a woman marries a woman, in states where doing so is legal.

    I'm tempted to try to start a ballot initiative in my home state (Washington) to require the state to only reciprocate recognition of other states marriages if they recognize ours. Suddenly, all the people moving here from California will have to get married again in Washington, or lose their government benefits from being married.

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