The Defense of Marriage Act and the Supreme Court

At the Volokh Conspiracy, Case Western Reserve University law professor Jonathan Adler argues that yesterday’s decision by the U.S. Court of Appeals for the Second Circuit invalidating Section 3 of the Defense of Marriage Act, which forbids the federal government from recognizing same-sex marriages, “provides a roadmap” for a future Supreme Court decision reaching that same result. He writes:

The key move in Judge Jacobs’ opinion is concluding that sexual orientation is a “quasi-suspect” class justifying intermediate scrutiny. This requires the federal government to show that its policy is substantially related to an important governmental interest. I am not sure existing precedent calls for such heightened scrutiny here, particularly as the Supreme Court in Romer and Lawrence avoided this step. Nonetheless Judge Jacobs makes a plausible case.

Once he’s taken this step, it is quite clear that the federal government is going to lose. While there is little question that DOMA would satisfy traditional rational basis scrutiny (as Judge Straub explains in dissent), it is hard to argue that the federal government has an important interest in refusing to recognize such marriages. Marriages, after all, are performed and legitimated under state law. Seeking uniformity in the federal definition of marriage or paying less in survivor benefits, and the like, are insufficient to justify intermediate scrutiny. (Indeed, due to the marriage penalty, it’s likely that federal recognition of same-sex marriages would actually increase federal tax revenues.) Insofar as the federal government appealed to other interests, such as encouraging a traditional definition of marriage or “responsible procreation,” it’s hard to see how such concerns are the province of the federal government, rather than the states.

Read the rest here.

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  • R C Dean||

    Pretty much my read. Of course, I think all government action should be required to be "substantially related to an important governmental interest."

    I'm not thrilled about the expansion of current laws negating freedom of contract and freedom of association to include a new class, especially a class where membership is entirely a matter of self-declaration (unlike, say, race, gender, or handicapped status, there are no outward signs of gaiety).

    If the feds are required to honor state marriage definitions, the fun will still come when someone who is married in one state moves to a state that doesn't recognize their marriage. What a mess that will be. There are already cases working where gay couples married in one state are being told they can't get divorced in another state, because as far as that state is concerned, they aren't married.

  • Eduard van Haalen||

    "I'm not thrilled about the expansion of current laws negating freedom of contract and freedom of association to include a new class" etc.

    But that is one of the key points of the SSM movement - it cannot be artificially separated from the other goals of the movement as if there was only an accidental connection.

  • Tonio||

    Uh, what other goals? Could you at least tell me what you're accusing me of before you condemn me?

  • Eduard van Haalen||

    I said "the SSM movement" - I am sincerely sorry if you thought I was including you in that description.

    The SSM movement wants the government to tell private businesses how to define marriage, subject to fairly narrow and inadequate religious exceptions. See the New Mexico wedding photog case, the New Jersey boardwalk case, etc.

  • sarcasmic||

    I supported the SSM movement when I believed it was about rights.
    But it's not. It's about force.

  • Tonio||

    So, Sarc, you're ok with giving the homos a nice official piece of paper that doesn't mean anything. Nice.

    Next: Government emancipates slaves, private entities and religious groups not required to recognize emancipation.

  • sarcasmic||

    The institution of slavery existed because government enforced it.
    So saying government emancipated the slaves is a bit disingenuous since it wouldn't have existed without government.

  • Tonio||

    Dodging the question, Sarc.

  • sarcasmic||

    I don't answer loaded questions.

  • Tonio||

    Yep, dodging.

  • Tonio||

    The NM photo case was only tangentially related to marriage; it was a public accommodation case, as was the boardwalk gazebo case. Eddie, meet RC; RC, Eddie - you lads have fun cherry-picking, misrepresenting and generally contorting yourselves to find an excuse to deny rights to gay people.

  • sarcasmic||

    Public accommodations violate freedom of association.

  • Tonio||

    Yep.

  • sarcasmic||

    I see the push for SSM as a means of using public accommodations and such as a means to bully and sue anyone who believes marriage to be between a man and a woman.

    The whole point is to give means of initiating force against people for what they think.

    No. I do not support SSM.

  • Tonio||

    So are there any rights which you believe the state can enforce against private individuals or religious organizations?

  • sarcasmic||

    Positive rights are an initiation of force and a violation of the NAP.

  • T o n y||

    sarc, one day you'll learn that simple does not equal correct.

  • Tonio||

    especially a class where membership is entirely a matter of self-declaration

    What? The? Fuck?

    Seriously, RC, you think that gay people just wake up one day and decide to be a member of a hated minority, and ostracize themselves from society?

    no outward signs of gaiety

    Other than having an obvious "couple" picture of another man in one's cubicle, other than holding hands with another man while walking the dog around the block, other than NOT checking out the rack on the new female employee...

    Yes, I know you hate gay marriage, but your intellectual dishonesty on this topic is sickening.

  • Zeb||

    " there are no outward signs of gaiety"

    Really? I would have thought that having sex with someone of the same gender was a pretty overt sign of gayness.

  • Big 'Orra||

    Are they required to have said sex right there in the marriage license office? Or will pictures suffice?

  • Tonio||

    The having sex thing is already covered by Lawrence v Texas on privacy grounds. This is about equal treatment under the law, no matter what RC and Eddie say.

    Pogue ma thoin.

  • Big 'Orra||

    I was just bring up the possibility of fraud. Most of the time you cannot tell just by looking @ someone whether they are gay, thus anybody can game the system to get benefits.

  • T o n y||

    We better outlaw heterosexual marriage too, then.

  • Big 'Orra||

    Homosexual "marriage" is not outlawed.

  • Tonio||

    Homosexual marriage is indeed outlawed in many states (by either statute or constutional amendment) and by the federal government by DOMA.

    IOW, total fail, plus added douchebag points for the bullshit shock quotes.

  • Big 'Orra||

    Outlawed, as in they'll fine you or throw you in jail? Or just not recognized by the state?

  • T o n y||

    It is where I live.

    I'm just saying, if your "concern" is about "fraud" then what's stopping "heterosexuals" from "getting married" fraudulently "to get benefits"?

  • Big 'Orra||

    I was referencing the comment above:

    "unlike, say, race, gender, or handicapped status, there are no outward signs of gaiety"

    It was an honest question and yes, pretty much opens the door to even more fraud.

  • T o n y||

    An innate characteristic not necessarily being visible somehow makes it different.

  • Tonio||

    I think religious exemptions are bullshit. Basically, they say that you can circumvent civil law whenever and however you want just by saying the magic words "religious exemption." The potential for abuse is huge.

    Eddie, in your view are there any limits to this? Do atheists also get to claim "religious" exemptions? Can racist skinheads claim a right to murder me because their religion says fags must die?

  • sarcasmic||

    derp

  • Eduard van Haalen||

    You are on a roll, Tonio!

    Since I don't think there should be laws dictating to private businesses how they should define marriage, then of course I don't think there should be religious exemptions - since there ought not to be any laws to be exempt *from.*

    And to use the terminology of the Religious Freedom Restoration Act (applicable to federal law and to the laws of many states), I think the government has a compelling interest in punishing murder, and there is no less restrictive means of protecting human life than to enforce this law against skinheads.

    The laws dictating business practices to private parties aren't quite as urgent as the laws against murder, so you can see why the various Religious Freedom Restoration Acts should be read to protect private employment and customer decisions.

    As for exemptions for atheists, of course atheists should be entitled to religious exemptions, because *atheism is a religion.* I don't expect that this is a controversial proposition.

  • Big 'Orra||

    Of course there are limits as murder obviously violates the right to life of persons engaging in homosexual behavior. I fully support the rights of atheists not to be forced to engage or fund religious expression of which they oppose. I am not in favor of forcing religious folk to violate their conscience.

    Do you believe religious folk have no rights? Must a family owned business be forced to hire an transgender man though it will harm his business?

  • Tonio||

    OK, Sarc has punted on this but can anyone here explain to me how using the coercive power of the state to enforce emancipation is different from using CPoS to enforce marriage rights? Anyone? Bueller?

  • Calidissident||

    Depends on what you mean by "marriage rights" - if you think for example, that the NM photographer should be obligated to do gay weddings if he wants to be a wedding photographer, that's not even remotely comparable to slavery. In slavery, one person is owning another person and taking away their freedom. In the other case, someone is refusing to provide an economic service. No one's rights are being taken away. You are still free to find another photographer who will take your photo.

  • Eduard van Haalen||

    Wait, what's a CPoS?

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