DOMA (Nearly) DOA

Some good news from the White House:

In a major reversal, the Obama administration has notified Congress that it will no longer defend the federal law that says marriage can exist only between a man and a woman.

Attorney General Eric Holder says he has recommended, and the president has agreed, that the law unconstitutionally discriminates against same-sex couples who are legally married but whose status is not recognized by the federal government.

"Given a number of factors, including a documented history of discrimination," Holder wrote in a statement, the administration has concluded that classifications based on sexual orientation must be subject to a higher constitutional standard than ordinary laws. And the federal Defense of Marriage Act does not meet that test, he says.

The law is still in effect, but probably lost whatever chance it had of surviving a legal challenge. You can read Holder's letter here.

Reason on DOMA here, including this piece from 1996 by Nick Gillespie. Excerpt:

It is a misguided attempt to define for all time an institution that is constantly, if slowly, evolving. Its supporters may think they can stop social evolution in its tracks and enforce a singular vision of the good society. But such people misunderstand the very nature of a free society and its dependence on choice and change. The Defense of Marriage Act may well have put off state recognition of same-sex marriage for the time being, but such laws can do precious little to keep things as they are. There can be little doubt that, ultimately, the government will be following IBM's lead, even as IBM has followed its employees'.

Comments

[jtuf]

I hope the ruling that strikes down DOMA strengthens the right to make contracts.

[Pedant]

It won't since "marriage" in this context is not a contract between private parties, but rather a government benefit program. And as with all such benefit programs, some qualify, and some don't.

The deeper question, the one that will be lost once gays qualify, is why the state should be in the business of granting coerced benefits based on specific interpersonal relationships.

I have yet to hear a gay marriage advocate explain why I, absent blood relatives, should die alone in a hospital away from my friends, or why my roommate and I should pay more in taxes than my neighbor and his husband.

Discrimination is not mitigated by slightly expanding the pool of those who benefit from the discrimination; rather it becomes more entrenched.

[Robert]

Why don't you and your roommate incorporate, provide you with benefits as a tax-free by-product of its activity, and pay just the tax as a single entity on its income?

[Pedant]

The same could be asked of straight and gay couples.

And it still leaves open myriad other marriage-related legal issues (e.g., hospital visiting rules).

[MJ]

"I think there's an equal protection problem with enforcing religiously-guided definitions of marriage even at the state level though."

Have you bought into your side's propaganda so deeply that you actually believe that the only reason marriage has been restricted to heterosexual couples is religion? I realize that many people here are anti-religious, and think the establishment clause is a weapon of mass destruction against morality based laws that they do not like. But seriously, that is the only reason you can think of that people think marriage shoul be exclusive to heterosexual couples?

There is nothing to say that marrige has normally been defined as a legitimizing relationship between biologically functional couples?

[Pedant]

The infertile can't get married?

[Robert]

Indeed, I think marriage is of pre-human origin. It existed before language had been invented to name it.

[Michael Ejercito]

Indeed, I think marriage is of pre-human origin. It existed before language had been invented to name it.

If so, then it should be easy to determine if marriage by nature includes same-sex couples.

[Robert]

Duh, of course it's easy to determine that.

[OhioOrrin]

DOMA & Roe are bad federal law for the same reason - states issue & regulate the licenses. some will, some wont. well unless one believes them to be civil rights like olsen.

[Rhayader]

I think there's an equal protection problem with enforcing religiously-guided definitions of marriage even at the state level though. No government, at any level, should have the authority to tell two consenting adults they can't enter into a contract and share things like power of attorney or hospital visitation privileges.

Governments should be enforcing legal contracts reached by willing participants, and should let churches decide for themselves what "marriage" means. That applies as readily to state governments as the feds.

[Sudden]

I think there's an equal protection problem with enforcing religiously-guided definitions of marriage even at the state level though. No government, at any level, should have the authority to tell two consenting adults they can't enter into a contract and share things like power of attorney or hospital visitation privileges.

That's not an equal protection issues, that's a right to contract issue (although, just as valid as if it were an equal protection issue).

[Rhayader]

Well, Orrin was saying that the real issue here is state's rights -- implying that a state government can rightly claim the power to define marriage. My point is that the equal protection clause would require that state governments respect freedom of contract just like the federal government must.

[Al Wayswright]

Men of Government cannot define marriage anymore than they can define the color of the sky.

All men of government can do is dole out privilege based on the rules they conjure forth.

All concepts are invariant, even fake ones or misguided ones.

Queers want to grandstand over the label 'marriage'. If politicians were smart, which they are not, they'd dispense with the word 'marriage' in all law and replace it with 'domestic partnership' or some such label.

[Rhayader]

Absolutely. I mean, I could do without the derogatory terms, but yes.

[Al Wayswright]

I say sorry to you Rhayader if I've offended.

Most often, I say 'homosexist' rather than queer.

A homosexist lives by the doctrine of homosexism, the sexual fetish of obsession with those of the same sex. As such, homosexism is a mind disorder, as all fetishes are, albeit it's a harmless fetish.

Agitating for political privilege based on any sexual fetish and granting such privilege reveals the people of a society to be most bizarre.

That said, all laws of privilege based on status should be abolished forthwith, e.g., tax benefits for being married or having children; contract preferences for lacking a penis, having swarthy skin or speaking a language other than English.

[Barely Suppressed Rage]

A homosexist lives by the doctrine of homosexism, the sexual fetish of obsession with those of the same sex. As such, homosexism is a mind disorder, as all fetishes are, albeit it's a harmless fetish.

All hearken! Al Waysright has solved the question that medical doctors, psychiatrists, developmental psychologists and many other scientists have not been able to nail down or agree upon: what is it that causes some people to be sexually attracted to members of the same sex?

Answer: it's a "mind disorder" just like "all fetishes are."

You may now return to your homes satisfied.

[Michael Ejercito]

My point is that the equal protection clause would require that state governments respect freedom of contract just like the federal government must.
reply to this

Freedom to contract is only subject to rational basis review.

[Michael Ejercito]

That's not an equal protection issues, that's a right to contract issue (although, just as valid as if it were an equal protection issue).

Right to contract was not covered in Baker v. Nelson, 409 U.S. 810 (1972)

[Robert]

It's got nothing to do with freedom of contract. It's all about forcing 3rd parties to recognize persons as spouses.

[dante]

There are no equal protection problem because: 1) the Constitution does not discriminate against religious motivations (to the contrary, it protects them); 2) the equal protection clause was never intended to cover sexual orientation as a protected classification; and, 3) marriage is not simply a contract, but a social institution. Two corporations can't get married.

A dozen friends can't all get married just because they want certain legal and tax benefits. Likewise, if you really believe that marriage is just a contract, then I assume you oppose no-fault divorce, which allows a party to the contract to breach without any consequence (unlike in contract, where you have to pay damages as the breaching party, and may even be subject to injunctive relief).

I do agree that government should extricate itself from marriage and hand it back over to private institutions as public expectations change and traditional understandings become controversial. However, that's not what's happening here at all. This is a bad reinterpretation of the equal protection clause that has no basis in history or in law.

[Cunctator]

---"3) marriage is not simply a contract, but a social institution. Two corporations can't get married."---

No, but they can legally merge and share assests and responsibilities, and file one tax return.

[dante]

Cunctator,

True, but that isn't marriage. Marriage can exist in the context of a separate property regime or outside of it, and involves legal responsibilities outside of finances. Furthermore, breach of the marriage contract is handled much differently from breach of a merger agreement.

Many of the benefits of marriage can actually be worked out via contract and other means (joint ownership, limited power of attorney, etc), although it's more difficult to manage.

The bottom line, though, is that Obama's decision is not based on the constitution. The equal protection clause is not a grab bag where we can say any favored group should be a protected class. If that were the case, conservatives and libertarians could say that the wealthy are entitled to equal protection and strike all progressive taxation. Obama is interpreting the equal protection clause is a self-serving way that renders it nonsensical. Why are people celebrating that? You can like the result, but the means are terrible. He's butchering the constitution to achieve a policy aim.

[Cunctator]

---"Obama's decision is not based on the constitution"---

On this, I agree. But the qualifier is that I don't believe the government grants me rights to begin with. I already have them. I, as a citizen, grant power to the government within the framework of the Constitution.

I will repeat my usual question. Where do you find, in the Constitution, the power for the government to regulate marriage, or any of most of the things they regulate?

We don't need protected classes, special amendments recognizing existing rights or the governments permission to most anything we do. It is the government telling us we need their permission.

[dante]

Cunctator,

"I will repeat my usual question. Where do you find, in the Constitution, the power for the government to regulate marriage, or any of most of the things they regulate?"

Here is where I agree. We don't agree is the equal protection issue. On the federal powers issue, though -- total agreement.

The federal government is not empowered to regulate marriage and should leave it to the states. Full faith and credit allows public policy exceptions, so gay marriages should only carry over in states not permitting gay marriage if specifically authorized under state law.

And on a policy level, I agree that it's time for state governments to begin extricating themselves from marriage entirely. That would serve to end the controversy.

[Cunctator]

---"if you really believe that marriage is just a contract, then I assume you oppose no-fault divorce, which allows a party to the contract to breach without any consequence"---

As long as both parties know beforehand that "no fault" divorce is in effect, it is part of the contract, therefore no breach.

[dante]

Cunctator,

You can't contract out of it. The "no fault" part is non-negotiable under the law. It's not voluntary.

Furthermore, if you had a contract in any other sphere that had a provision saying "liability will not result for any breach of this contract," it would probably be struck down as invalid. The courts typically don't enforce contracts where the parties don't really obligate themselves.

[Cunctator]

---"The "no fault" part is non-negotiable under the law. It's not voluntary."---

ALL contracts must comply with the law.
There is no law that says a couple cannot remain married for life, even if "no fault" is the law.

No fault is just the means to end the (marriage) contract, but each party retains rights such as spousal support (in may cases), property division, etc., so you cannot say that no liability results from terminating the contract.

[dante]

Cunctator,

Virtually all courts are in agreement that marriage is not simply a contract (even where contractual language is sometimes used), hence it is not governed by contract law. As I noted above, marriage differs fundamentally from contracts.

And yes, I can say that no liability results from breach. Under no fault, the court does not care who the breaching party is, so there is no liability for breaching. Some states do impose certain penalties vis-a-vis spousal support and property division for "fault," but that's much less common these days, and no party can receive consequential damages for the breach itself. It's a completely different animal from contract law.

[Mo]

Actually, you can contract stricter rules in a marriage than the default contract with a prenup.

Are you familiar with NFL employment contracts? The team can break the contract at any time with no further liability and it happens all the time. At the same time, players can hold hold out for more pay and not be further liable.

[dante]

Mo,

Prenups only govern property division and are usually subject to unique requirements. Also, they're separate from the marriage itself.

NFL contracts do allow teams to terminate, as do many other types of contracts, but they do not (and cannot) shield the team from liability for breaching the contract. For example, let's say that the team didn't pay the player's salary. It couldn't include a term in the contract basically saying "we'll pay you if we feel like it." However, that's how marriage works. The law recognizes that adultery, cruelty, and abandonment are "fault" (the analogue of "breach") but refuses to award damages for fault or allow the party not at fault to enforce the marriage "contract" in any way.

[Rhayader]

the Constitution does not discriminate against religious motivations (to the contrary, it protects them)

"Congress shall make no law...respecting an establishment of religion." Wouldn't any law that defined marriage based on religious moral codes in fact be a law "respecting an establishment of religion"?

the equal protection clause was never intended to cover sexual orientation as a protected classification

But the clause doesn't protect certain "classifications". It says that state government must respect constitutional limits on government authority just like the federal government must. "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." No specific classification required.

marriage is not simply a contract, but a social institution.

I'm not clear on what that means from a legal standpoint. How are "social institutions" controlled by the government to begin with?

[Professional Critic]

That makes no sense. Simply because a law has a religious history (marriage) doesn't make it a violation of the 1st. "Thou shalt not kill" is in the bible, does that mean we can't enforce laws against murder?

[Mo]

Laws against killing predate Judaism and were separate from religions at the time.

[Professional Critic]

There was no marriage before religion? This whole argument is silly.

[Robert]

Marriage has "a religious history" only to the same degree that language has a religious history because holy books are written in language. Marriage is recognized by religions, just as it has been recognized by gov'ts & legal codes, but it was not made by either. Gov't and religion had to accommodate themselves to the pre-existing (pre-human, really) institution of marriage. Language had to accommodate itself too, so we have words such as "spouse" to describe the situation as it already existed, before there was even a larynx capable of forming the sounds.

[dante]

Rhayander,

"Wouldn't any law that defined marriage based on religious moral codes in fact be a law "respecting an establishment of religion"?"

No, for a lot of reasons:

1) "[R]especting an establishment of religion" refers to establishing a national faith or requiring individuals to practice a certain religion,

2)assing laws based on religious convictions. 100% of Americans could be polled tommorow and say that they support laws against murder because of the commandment "thou shalt not kill" and it wouldn't make murder laws "religious." Moreover, you left out the free exercise clause. If my exercise of religion leads me to certain moral conclusions and I support laws that comport with those morals, that's an exercise of my faith, and I'm not "establishing" a religion. The government cannot say that religious motivations are banned from politics. That's silly, wrong, and also unconstitutional.

[Jim]

You should not be able to vote for laws based on your particular morals WHEN SAID LAWS RESTRICT THE ACTIVITY OF OTHER CONSENTING ADULTS IN ORDER TO CONFORM TO YOUR IDEA OF MORALITY (sorry I'm not yelling; I always screw up trying to use italics).

It's every bit as wrong as saying you should be able to vote to take away my right to smoke weed in my own house, which doesn't affect you in any way. No laws should exist which restrict the free exercise of activity of consenting adults.

[dante]

Jim,

Then get a constitutional amendment passed that says that, because the Constitution doesn't say that right now.

What I'm saying is that reinterpretations of the constitution to suit specific policy aims are dangerous. You can't argue that Obama is wrong to interpret the commerce clause in expansive, illogical ways when you're proposing to interpret the equal protection clause in expansive, illogical ways. Fidelity to the constitution isn't a shopping mall; you don't get to pick and choose. You either support it, even when you disagree with the result, or you don't.

[Jim]

The difference between us probably is, I think the con-shit-tution is a piece of garbage document that was vaguely worded enough to allow the total concentration of power in Washington.

I hate it, and have no fidelity towards it whatsoever. Anything which allows laws to be written which restrict personal and economic decisions between consenting adults is garbage. Any attempts to interpret it to allow more freedom, I will support. I am not worried about logical consistency towards something I personally believe should be abolished.

[dante]

Jim,

I am not worried about logical consistency towards something I personally believe should be abolished.

It's intellectual dishonesty in interpreting the constitution that has gotten us to the place we are now. I think that history shows that this lack of "logical consistency" has placed freedom generally at far greater risk.

[Jim]

If the wording of the document was not clear enough to prevent the logical inconsistencies thus far, then the document is worthless as an absolute and final structure for underpinning a massive empire...er, I mean, state. The fact that we have let it become as abused as it is, means even if we managed to set the clock back, there will always be the probability that it will eventually get to be this bad again.

Hence, I support any and all efforts to interpret it in support of more freedom, and will oppose any attempt to interpret it in such a way as grants more power to the feds. This will be my (internally) logically consistent platform until the whole piece of garbage is scrapped.

I see a logical consistency in always supporting freedom, and always opposing power grabs. I understand this is just my opinion, and I make no claims to universalization of my opinion or to it's absolute correctness.

[Michael Ejercito]

The difference between us probably is, I think the con-shit-tution is a piece of garbage document that was vaguely worded enough to allow the total concentration of power in Washington.

We have the Article V process.

I hate it, and have no fidelity towards it whatsoever. Anything which allows laws to be written which restrict personal and economic decisions between consenting adults is garbage. Any attempts to interpret it to allow more freedom, I will support. I am not worried about logical consistency towards something I personally believe should be abolished.

Fidelity to it is the only way to protect that rights we do have.

[dante]

Ryander,

Sorry, my earlier comment got cut off:

I'm not clear on what that means from a legal standpoint. How are "social institutions" controlled by the government to begin with?

People come into them and the government recognizes them as having agreed to enter the institution. Now, I'm not sanguine about the government regulating marriage either, but there are major legal differences between marriage and contract law that are too complicated to get into here. Suffice to say that the courts have routinely referred to marriage as a unique institution and usually refuse to apply principles of contract law to marriage.

[Rhayader]

Suffice to say that the courts have routinely referred to marriage as a unique institution and usually refuse to apply principles of contract law to marriage.

Is there any other institution involving adults that has been treated similarly? That just seems like a punt to me (by the government, not by you). If they can't get their arms around it using legitimate legal constructs, what business is it of theirs at all?

Regarding the "establishment of religion" discussion: where do we draw the line? Should a majority of religious zealots have the right to force intelligent design nonsense on public education? After all, "if their exercise of religion leads them to certain moral conclusions and they support laws that comport with those morals" they should be all good, right?

I understand the argument (although I'm unaware of the atheist case for legalization of murder, so I'm not sure how dependent upon religious thought legitimate laws against attacking people really are). But is there any law regarding private behavior or lifestyle that could not be rationalized by the reasoning you're giving?

[dante]

Rhayader,

Is there any other institution involving adults that has been treated similarly? That just seems like a punt to me

I don't think there is any legal parallel, and I agree, it is a bit of a punt. The reason it has worked out this way is because contracts typically government business relationships, which are typically more arms-length. Marriage involves romantic relationships, family and procreation. These differences have led to different legal treatment. I'm not endorsing that; it's just the way it is.

Regarding the "establishment of religion" discussion: where do we draw the line? Should a majority of religious zealots have the right to force intelligent design nonsense on public education?

Well, I think the line should be drawn where is was historically drawn -- you can't establish a government-mandated faith or religion. Anything short of that may be bad policy, but is nevertheless constitutional.

However, even then I see a distinction between teaching an arguably religious doctrine in schools like intelligent design and having laws based on religious morality. You could draw the line at actually requiring religious doctrines or ceremonies to be taught or practiced. The secular equivalent might be a class which teaches a theory that evolution helps disprove the existence of a Judeo-Christian God.

In any event, the bottom line is that you can't prove morality on a slide rule. Just because somebody's moral convictions are secular and another's are religious does not mean that laws based on the latter's morals are unconstitutional. For some, most if not all of their morals are based on religion. There was a time when this was usually the case. It makes no sense to discriminate that way.

Moreover, you can almost always find a secular philosophy for any moral stance. Emmanuel Kant was opposed to homosexuality. An atheist Kantian might oppose gay marriage on moral grounds. Do we really want the courts to get into judging what proportion of the public has the "right" motivations for supporting laws?

[Rhayader]

The secular equivalent might be a class which teaches a theory that evolution helps disprove the existence of a Judeo-Christian God.

Yeah, I dunno, if you ask me public schools have no more business teaching that than they do "intelligent design". How about they just teach the science and leave the religious implications alone?

I see the point you're making. And my answer to your last question is a resounding "hell no". But I think that "a law respecting an establishment of religion" can mean more than a law explicitly meant to establish a state church. It's a matter of philosophical freedom, or more generally freedom of thought. And lifestyle moralizing laws can severely restrict the philosophical freedom of people who pose no harm to anyone else.

Congress establishing a private lifestyle morality and Congress establishing a "religion" -- a term which is not defined in the constitution -- aren't all that different.

[Barely Suppressed Rage]

Wouldn't any law that defined marriage based on religious moral codes in fact be a law "respecting an establishment of religion"?

I would say no. The Framers of the 1st meant a law establishing a religion - e.g., the Church of England.

A law that has somewhere in its motivating force some kind of belief that also is based on a religious belief is not automatically unconstitutional.

Look at all the various "blue laws" that prevent selling of cars or alcohol on Sundays. Yes, they now are falling by the wayside as society moves on and decides it's no longer necessarily immoral to buy a car on Sunday, but it's not because those laws constitute a government establishment of religion.

Similarly, one of the Ten Commandments is "thou shalt not murder." Does that mean laws forbidding murder violate the first amendment, because they are based on, or at least coincide with, religious and moral values held by the majority of society?

[Rhayader]

Agreed, I shouldn't have phrased it like that. But surely the 1st amendment is about something more than simply prohibiting an official state church, yes? Are there no actions of Congress short of that which would violate the freedom of religion clause in the first amendment?

I mean, what does the term "religion" even mean in the Constitution? Monotheism? Theism generally? Deism? Atheism? We typically say that it covers the freedom to follow any particular set of beliefs -- that the first amendment protects the rights of the atheist as forcefully as those of the Catholic.

But doesn't that also mean that Congress should be prevented from legally encoding any specific belief set? If Congress passes a religiously-motivated law (gays can't marry), doesn't that violate the "religious" (again, an undefined term) freedom of a gay person who doesn't subscribe to the same spiritualist tenets?

And I think the example of "thou shalt not kill" is a bit of a straw man, for what it's worth. We're talking about lifestyle moralizing here -- prohibitions, preservation of "social institutions", etc. There is an obvious, objective, secular case for laws against victimizing someone else through personal attack or theft or fraud . Yes, those laws are found in religious texts, but they also follow naturally from one of the core founding precepts of the country: people are created equal and free. A victim is an objective reality; lifestyle impropriety is anything but.

[Robert]

What evidence is there that definitions of marriage are religiously guided?

[Barely Suppressed Rage]

OK, I'll play Nancy Pelosi here:

Are you serious?

[Aresen]

Surprised they couldn't get it through under the Commerce clause.

[Pro Libertate]

Well, if they somehow con the Court into ruling the mandate constitutional, the GOP administration in 2013 probably will do just that.

Turnabout is a bitch, ain't it?

[DNS]

Turnabout is a bitch, ain't it?

Well, why couldn't it be? Is there not some form of financial gain from the marriage contract? Is that not form of commerce? Moreover, under Judge Kessler's ruling, couldn't just the thought of proposing marriage (or the absence of that thought) subject cohabitants into being recognized as a married couple because of the arguable financial gains of pooling resources and living together?

[DNS]

More specifically, could two single people who cohabit the same household be subject to the government considering such an arrangement free riding and financially penalized accordingly? Whether they agreed to it or not? Like not having the thought or intention to buy insurance, but the government says too bad, either situation makes you have to buy it because we say so? So you are living together and you are married, whether you are or aren't, because we say so?

[Pro Libertate]

See how easy this is when government has no real limits, only the illusion of limits? Will the idiots of either major party get this point before it's too late?

If we indeed become a full-blown tyranny, I bet it happens with the Constitution remaining officially intact. Lip service will still be paid to the document, and courts will rule under the auspices of constitutional authority. But anything will go.

We're not far from the point of allowing totalitarian government, just as soon as someone fully realizes how unlimited government has become and how much they can get away with.

I think we still have some limits left, but we're not many bad rulings from that no longer being the case. Others believe we've already crossed that line.

[Ragin Cajun]

If we indeed become a full-blown tyranny, I bet it happens with the Constitution remaining officially intact.

In a "Fall of the Roman Republic" kind of way?

[Pro Libertate]

I wasn't thinking specifically about that case, but it does present a good example of how a republican veneer over tyranny might work. The pretense that the Republic was still alive was continued for quite some time after it really died.

[H man]

^^^
THIS
After all the Roman Senate existed for the length of the Roman Emprire. Heck even the machine politics of the major cities were technically democracies.

[H man]

Too slow.

[Aresen]

I think, if you can somehow bring an end to the WoD and the WoT, you may have a chance to save your republic.

If the Federal deficit kicks into hyperdrive, however, all is lost.

[Pro Libertate]

Vancouver is nice.

[John Thacker]

Personally, I'd prefer the turnabout that this decision makes it easy for a future Republican President to refuse to defend the mandate in court.

[rather]

I love the lesbians-they are so sweet

[The Gobbler]

Stupidly generalize much? My sister is a lesbian (she's great and sweet) but not all of them are sweet.

[Matrix]

My cousin is one, and she's one of the meanest persons you'll ever encounter.

[rather]

Read much? Is it retard day and I didn't get the email?

[rather]

boring me still

[hmm]

LoL @ Bob Barr

Image:

First I was like UHHGGGG, bllllaaaaa, ACKKKKK

Then I was like AAAAHHHHHH.

Then I was like, thank god it wasn't Rosie.

[Abdul]

How many pages of google image searches for "lesbians" do you have to go through before you get that picture?

[Rhayader]

I'll let you know when I finish my research.

[Matt Welch]

That was the first legally recognized gay-married couple in the country (or at least the first ones in San Francisco).

[hmm]

Context does help, imagine that.

[Pro Libertate]

Huh. SF had legal gay marriage in the 1800s?

[PIRS]

I thought gay marriage was legal in Hawaii for a short period of time in the 1990's?

[PIRS]

http://en.wikipedia.org/wiki/R....._in_Hawaii

[Robert]

I know of a couple of women who got officially "married" in New York City in the 1980s. After a few years they decided to break up, and when they went to get a divorce, the judge simply concluded they were never married to begin with.

[Robert]

The point is, we shouldn't be treating a marriage license as dispositive of whether someone is married. Like any license, it's simply gov't permission to do something; it doesn't prove that actually occurred. Just because you have a license to fish doesn't mean you have any fish, or that you are a fish, for that matter. You can get a dog license for a cat, but that doesn't make the cat a dog.

[Abdul]

Same sex marriage is one thing. Marriage of the undead is going too far.

[hmm as Rhambo]

My constituents have the right to marry!

[Zeb]

Well that's nice. And possibly the first thing Obama has done about which I can unqualifiedly say "that's good".

[DNS]

Stopped clock.

[Sudden]

A broken clock is right twice a day... the other good thing he has hinted at is gradually removing the FNMA monstrosity.

[JW]

Only 2 years to do something that could have been done overnight, if Michelle hadn't hidden his balls away so well.

[DNS]

Stopped cock.

[Sudden]

She was worried she would leave him for an actual man instead of just a manly woman.

[Tony]

Requesting source on pic

[Obama Translator]

In a major reversal, the Obama administration has notified Congress that it will no longer defend the federal law that says marriage can exist only between a man and a woman.

I need the fag vote.

[The Gobbler]

^^THIS^^

his popularity has been dropping again.

[Zeb]

I tend to doubt that his popularity (or at least approval rating) among gays has dropped as much.

[hmm]

Maybe he fears losing votes to the GOP because of GOProud and CPAC?

I said that with a straight face. LOL

[J sub D]

Yay! About damned time.

Credit is given where credit is due.

[Rhayader]

Jinx.

[JW]

If I didn't already suspect that it was quid-pro-quo for something we haven't found out about yet, I'd give tons of credit.

Obama's mendaciousness is almost as limetless his thirst for unregulated power.

[Rhayader]

Good for them. Insert something about credit being due and given here.

[Fist of Etiquette]

One the one hand, they're acknowledging the existence of the Constitution, so that's good. Of course, it's to see a widening of dispersal of government goodies rather than doing away with an entitlement altogether. But at least they're probably not doing it to buy votes.

When will we single persons stop being discriminated against? I want these benefits you married jerks are getting!

[SugarFree]

We pay for those benefits. Oh, how we pay...

[Tim]

Once the sexbot is perfected (2025 or so) nobody will bother getting married to anything or anyone.

[Pro Libertate]

Thus will Japan restore its economic might and finally surpass the United States.

[Episiarch]

"What is the world coming to? That Fry is a sicko poivert, I tell ya! Dating a robot...it's an attrocimacy!"

[Tim]

"This is the worst kind of discrimination, the kind against me!"

[JW]

We get benefits? When did this happen? Probably during taking the kids to soccer practice, trumpet lessons, trips to the library, eating the same bland food every night, endless birthday parties, not having any significant disposable income and not having sex.

[Episiarch]

At least you had the kid do brass. I sort of figured you for the dad of a woodwind pussy.

[Pro Libertate]

It's all about the brass. I concur.

[DNS]

It's all about the brass. I concur.

Percussion gets all the boys and girls. Overruled Pro Libertate.

[Pro Libertate]

Piano excepted, percussion is for the simpleminded.

[DNS]

Like sex, there is more to percussion than just hitting something. The perfect marriage of athletics, rhythm and tempo. Overruled.

[Pro Libertate]

No.

[Grummun]

*cough* low brass, thank you.

[JW]

Hey, whatever will get him laid, expect for him being one of those backpfeifengesicht dickheads who sit on the quad with his acoustic guitar, singing sappy songs to the girls surrounding him.

[Episiarch]

If he looks like you, he could play guitar like Jimi Hendrix and it wouldn't help.

"She only speaks French, Roy. She doesn't speak imbecile."

[JW]

The Kieth Richards rule is employed in this instance.

Overruled.

[Episiarch]

Just make sure your kid can ski.

"The K-12, dude. You make a gnarly run like that and girls will get sterile just looking at you."

[SugarFree]

"I have great fear of tools. I once made a birdhouse in woodshop and the fair housing committee condemned it."

[DNS]

"Testicles!? You mean tentacles!"

[Ska]

I had to explain to this 23 year old chick what Better Off Dead was and that she has to see it.

So very sad.

[SugarFree]

I'd have fired one of my student worker for that shit, Ska.

[Pro Libertate]

It's got the True Grit connection, too, so it's topical.

[DNS]

I sort of figured you for the dad of a woodwind pussy.

Everyone knows it is the harp (not the harmonica) and lyre that is the real pansy instrument.

[SugarFree]

Angels are gay.

[Fist of Etiquette]

We get benefits? When did this happen?

If state recognition of your precious union isn't beneficial in some way, then why exactly am I pitching a fit right now?

[Shirley Knott]

What? Not outraged that one of the Ron Paul supported initiatives is being ignored?
Well, good for you, seriously.

no hugs for thugs,
Shirley Knott

[Matrix]

Well, it's a step in the right direction, I suppose, but the ultimate goal is to get the government at all levels completely OUT of marriage and leave it as a contract between two or more consenting individuals.

[Pedant]

If the ideal is no one gaining state benefits, how is expanding the pool of beneficiaries "a step in the right direction"?

[Tim]

Man he's ruining the last legal and socially acceptable prejudice in America.

[Pro Libertate]

Hating Southerners?

[Matrix]

don't worry, you'll still have fatties and smokers.

[NPD]

don't worry, you'll still have fatties and smokers.

*eating a bacon cheeseburger from In and Out and blows smoke in your face*

[Mo]

There's no bacon at In and Out.

[DNS]

I fried my own.

[Matrix]

In & Out is overrated. Friends in Oklahoma were petitioning to have it brought there. When I was in Cali early last year, I had it a couple of times. Was not impressed or displeased. It was just "okay." I still prefer BK or Carl's Jr. (Hardees) over In & Out.

[Pro Libertate]

I haven't been there, but I did like Five Guys when I finally tried it in December.

[hmm]

Na. We will always have academics.

[White Trash]

Don't forget about us.

[Tim]

Dominos all poised to fall.

[Spartacus]

As a southern white male academic, I'm really getting a kick out of these replies.

[Holy Cow]

I'm sure this has nothing to do with Obama's decline in the polls re: WI protests. No no no no.

Why, this isn't just some sop to the Left to bolster support for the doomed union/state govt. showdowns. No, not at all.

Why, just look at the facts!

The law still exists, right? Yeah. And nothing in theory or practicality will change with this announcement? Nope nothing will change.

So this was just some sort of empty gesture? Uh, yeah.

[Slippery Slope]

Hellz yes, now I just need the gov't to recognize the validity of my consented marriage to my 4 daughters, 2 sisters, 1 dog, and it's puppies, whom I sodomize on a regular basis. It's discrimination if you don't recognize my rights to do these things!

[Episiarch]

You're a moron. Well done.

[Pro Libertate]

I think there's a kernel of truth to the idea that other types of previously verboten marriage can no longer be banned if gay marriage is legal. The most obvious example is polygamy--there's really no justification other than the moral one for forbidding it. Even some incest laws might not stand, since the science only supports close instances of consanguinity being prohibited (even that might only be true in repeated close-gene breedings).

[Episiarch]

And the problem with that is...?

[Pro Libertate]

See below. Above, I was just noting that there is, from that perspective, a slippery slope. Whether that's bad or not is another issue.

To me, this highlights in sharp relief the difference between my values versus the ones I think should be imposed on others. People want to live together and call themselves married, what business is it of mine?

[Pro Libertate]

Usual libertarian disclaimer that I don't think the government has much business being involved in marriage, however defined.

[Michael Ejercito]

The most obvious example is polygamy--there's really no justification other than the moral one for forbidding it.

It could be justified to prevent abuse of women and children in polygamous families, to promote procreation within opposite-sex monogamous unions, to proceed cautiously with marriage policy, and to preserve good social order by ensuring that there are enough women for men to marry.

[dante]

No, you are. So there.

In any event, the point is a good one. There's no good logical reason why gay marriage should be protected under the equal protection clause, but polygamy should not be. Or why we should have marriage at all, which discriminates against single persons.

It may or may not be a good idea to amend the constitution to clarify equal protection and include gays as a protected class, but that's not what the constitution says at this very moment. Obama is turning a policy issue into a constitutional one, and that's very problematic.

Refusing to defend the DOMA is a good idea on federalism grounds (assuming that the federal courts don't push full-faith-and credit on the states), but on equal protection grounds it's total nonsense.

[Episiarch]

Why shouldn't polygamy or incest be legal? I welcome challenges to that under equal protection.

[DNS]

Why shouldn't polygamy or incest be legal?

Polygamy laws would struck down, as they should be.

Incest is a bit more tricky, as it has been argued that it is a form of rape. Oliver Wendell Holmes and Margaret Sanger have done their evil work well.

[SugarFree]

Only certain types of incest are rape/rapish. Adult siblings can consent meaningfully, for example. Not that incest is an awesome idea, but all kinds of things that are legal fail that test.

[DNS]

And if two siblings are both below the age of consent, yet consented? such as a 14 and 15 year old girl and boy. Or two brothers or sisters?

[SugarFree]

Right now, no person can legally consent to an incestous relationship. The age at which they could do so if it were legal is a separate matter.

Consentable homosexual incest is the least defensible type of "illegal" incest. There's no danger at all of consanguinity issues.

[dante]

Episarch,

Well, why shouldn't murder be legal. Laws against murder discriminate against murderers.

I know, I know, laws against murder protect peoples' lives and have always been considered constitutional. Well, so have marriage laws, which were viewed as protecting a traditional human institution.

Of course, murder also causes harm to other persons, and gay marriage does not. However, that's irrelevant. The Constitution does not contain the "harm principle." You might wish it did, just like Obama wishes that the commerce clause actually meant that the federal government has unfettered power, but it doesn't. These legal challenges to marriage laws are baseless.

[Episiarch]

You're reaching pretty hard, dude.

[SugarFree]

The definition of marriage as a heterosexual-only endeavor is the novel idea. DOMA was necessary precisely because the Constitution doesn't assert it. The legal challenges are about preserving the neutral stance, not changing it.

[Robert]

"Novel"?! Just look in a dictionary. Same sex couplings as marriages is a very recent concept, while marriage itself is millions of years old.

[Robert]

Polygamy and incest should be legal. But same sex "marriage" still isn't marriage.

[Cunctator]

---"protected class"---

Seriously, what does this mean? The government should spend more time defending the rights of one group, but not another?

[DNS]

Seriously, what does this mean? The government should spend more time defending the rights of one group, but not another?

Only if it is politically and financially expedient. That cudgel, of course, swings both ways.

[dante]

Cunctator,

"Protected class" equals "subject to strict or heightened scrunity." If you don't know these terms, it's going to be difficult to discuss the equal protection clause with you.

Suffice to say that reducing the equal protection clause to "the government can't discriminate" makes no sense unless you define what characteristics it can and cannot discriminate against. All laws discriminate. Laws against jaywalking discriminate against jaywalkers. Progressive taxes discriminate against the rich. Marriage laws of any stripe discriminate against single persons. Laws giving tax-exempt status to nonprofits discriminate against for-profit enterprises. The list goes on. The courts have dealt with this by only applying strict scrutiny to those classifications originally intended to be protected under the equal protection clause. The only deviation from this is gender discrimination, which is subject to intermediate scrutiny (and that's still controversial).

[Cunctator]

---"Protected class" equals "subject to strict or heightened scrunity." If you don't know these terms, it's going to be difficult to discuss the equal protection clause with you."---

Really, I thought it was the fucking guard at the classroom door.

Legal concept only. All people have the exact same rights. There is no need to protect the rights of any particular group. You just treat them all the same.

---"Progressive taxes discriminate against the rich."---

Taxing power is part of the Constitution, so power has been granted. I have no problem with a flat tax system or a consumption tax-based system.

---"Marriage laws of any stripe discriminate against single persons."---

Get rid of special privilidges based on marital status, I have no problem with that.

---"Laws giving tax-exempt status to nonprofits discriminate against for-profit enterprises"---

Get rid of that.

[dante]

Cunctator,

Legal concept only. All people have the exact same rights. There is no need to protect the rights of any particular group. You just treat them all the same.

To save time, I'll repeat what I wrote before:

"Suffice to say that reducing the equal protection clause to "the government can't discriminate" makes no sense unless you define what characteristics it can and cannot discriminate against. All laws discriminate. Laws against jaywalking discriminate against jaywalkers. Progressive taxes discriminate against the rich. Marriage laws of any stripe discriminate against single persons. Laws giving tax-exempt status to nonprofits discriminate against for-profit enterprises. The list goes on."

I understand that you don't like some of these categories anyway, but picking and choosing those doesn't make your point. "Murderers" are a group. "Jaywalkers" are a group. "Thieves" are a group. "Rapists" are a group. Unless you want these activities legalized, you must admit that you can't treat all groups equally.

The equal protection clause was meant to ensure that all individuals are treated equally under the law, and specifically to protect the rights of newly-freed slaves (although even then there was toleration for "separate-but-equal"). If you go beyond this and say that the government has to treat any conceivable "group" of people equally, the concept becomes meaningless. Any law against anything discriminates against a group.

[Jim]

You could easily say that the gov't cannot discriminate except activities which impose on the rights of others. This easily gets rid of your rapists, murderers, etc.

The "rights of others" would have to be clarified to ensure that people would not believe that they have a "right" not to be offended by the existence of homosexual marriages. I think a good guideline, though it would have to be rendered into legalese, is the Jeffersonian standard of neither picking my pocket nor breaking my leg.

[Cunctator]

THIS (I can't do the cool up arrow thing)

Non-agression against others. Other than that, pretty much everything should be legal. Too many people want to tell others how to live their lives. Fuck them.

Consensual Gay marriage---okay by me
Consensual adult incest---okay by me
Consensual polygamy---okay by me
Getting government out of the marriage business---okay by me

[steven]

uh huh.
uh. huh?

[Kristen]

I posted this on the ACLU's Facebook:

Is that like when he said they would stop using the Justice Department to raid medical cannabis dispensaries is states where medical cannabis was legal? If so, good luck to all those gay couples out there!

[Tim]

The Gay Marijuana smokers are doubly cursed.

[Sudden]

Lesbians can't mary Jane or Mary Jane.

[Sudden]

marry Jane or Mary Jane....

I'm having a stupid day. Too many Tony comments read in the union thread.

[DNS]

But, but...the Demon Weed!

[Rhayader]

Fair criticism, to be sure. Still, even largely symbolic gains are preferable to nothing at all. Unfortunately for all of us, Obama seems to be better than any of his recent predecessors on both gay marriage and drug policy.

Yeah, there is a long way to go, but a good move is a good move.

[Kristen]

One could argue that doing the exact oppositie of what one says is actually a step backwards. Saying you won't use Federal resources to raid cannabis dispensaries in states where it's legal, then proceeding to do exactly that, seems much more egregious than just saying "cannabis is baaaaaad and we're gonna gitya!"

The only type of person I literally hate is a hypocrite. Someone who's intellectually honest, but with whom I disagree, is much better to deal with.

[Rhayader]

Well, obviously the entire concept of cannabis prohibition is hypocritical beyond belief to begin with, so there are no intellectually honest parties where that is involved.

Still though, the Holder announcement regarding "unambiguous compliance with state law" seems to have led to a Califrornia-like explosion in cannabis freedom in Colorado, Michigan, Montana, and elsewhere. Yes, there are still abuses, and that is a problem. But we're inching closer to true freedom here, and I do think the Holder memo is a small piece of that procession. So to that extent, it does deserve credit.

[SIV]

lesbians

[Holy Cow]

I can't wait for the next Republican president to stop defending and enforcing ObamaCare, Social Security and Medicaid.

Why can't that be done? Doma, like OCare, SS and Medicaid are also the law of the land. They've also been repeatedly challenged and some judges have sided against those laws. So what's the difference?

The difference is the media will fawn over this decision and vilify my fantasy example.

Gosh, remember when that mean old Bush decided to ignore some laws. That was bad.

But this one is different. Not sure how, but somehow cooler and more cosmotarian.

[ola]

No shit, I must have missed the part in the constitution that granted the executive branch the right to determine whether a law is constitutional or not and then whether to go ahead and enforce that law.

[Pro Libertate]

There is some independent ability in each branch to determine whether a law or action is constitutional. Particularly in areas that are inherent powers to the branch in question.

The courts usually avoid these conflicts through massive contortions, but, in theory, we could have a battle between any of the branches over constitutional interpretation.

That said, the habit of allowing the courts to control that determination is pretty ingrained.

[MNG]

I think all three branches are supposed to have co-equal duty to defend the Constitution and should have work towards that, right?

[DNS]

I think all three branches are supposed to have co-equal duty to defend the Constitution and should have work towards that, right?

So you would have no problem leading the charge to have Ken Salazar (who looks like an old lesbian, just to stay on topic) immediately arrested for defying the court order lifting the bans on off-shore drilling?

[ola]

Maybe so, but the result is what we have now where the executive can ignore the legislative by just unilaterally claiming that the law is unconstitutional and ignoring it. Also we have the executive via it's cabinet enforcing law that was not enacted by the legislative branch, ie the EPA. The proper method is to either have the courts rule on constitutionality or have congress repeal the law. I guess what we have is the worst possible case, where the executive says they are not going to enforce the federal laws regarding medical mj, except when they do.

[Number 2]

So, let's see if I understand it...

The President will refuse to enforce a law on the books because his Attorney General "recommended" that it be considered unconstitutional.

But when two federal judges ACTUALLY DECIDE THAT A LAW IS UNCONSTITUTIONAL, the President feels free to ignore them and continue enforcing it.

[ola]

Correct, that's what we have now.

[Pro Libertate]

It's easier for a branch to refuse to do something on grounds that it's unconstitutional than the other way around. A single branch deciding something is unconstitutional can, in effect, stop the entire process from continuing.

[Tony]

No, you don't understand. They are continuing to enforce the law. They are just no longer going to defend it in court. Something administrations do when something is blatantly unconstitutional.

Obamacare won't be unconstitutional until the SCOTUS says so. It's 3 for 2 against at the federal court level.

[Spur]

I assume Bob Barr is now working for the Haitian branch of GLAAD?

[PIRS]

Why should the government be involved in marriage at all? It wasn't for most of human history.

That being said, I agree that the government should not discriminate against gay couples. This is one of the few, decent things that the Obama administration has done.

[Pro Libertate]

Marriage wasn't even a sacrament in Christianity until the Fourth Lateran Council in 1215.

Prior to that, kids would go off, copulate, come back and tell the folks that they were married.

[DNS]

Prior to that, kids would go off, copulate, come back and tell the folks that they were married.

Which bolsters my concerns upthread.

[PIRS]

That sometimes happens now except instead of telling them they are married they tell them they are pregnant.

[Warty]

CANON 51

Summary. Clandestine marriages and witness to them by a priest are forbidden. Marriages to be contracted must be published in the churches by the priests so that, if legitimate impediments exist, they may be made known. If doubt exists, let the contemplated marriage be forbidden till the matter is cleared up.

Shut the fuck up, Pope.

[Robert]

You understand the whole business of "legitimate impediments", don't you? It means that while A & B want to get married, there might be a C claiming (correctly or incorrectly) to be the spouse of one of them. Not much different from registering land titles.

[Michael Ejercito]

Prior to that, kids would go off, copulate, come back and tell the folks that they were married.

So premarital sex did not practically exist then.

[Pro Libertate]

Sex was marriage. If you wanted it to be.

[Robert]

Why should the government be involved in marriage at all?
Does gov't operate courts? What happens when there's a dispute with something at stake with person C over whether persons A & B are spouses?

[Tim]

"If you liked it then you should have put a ring on it."

[MNG]

Isn't this the best issue to find out who is a paleo-libertarian and who is not? Paleos will say "this is bad because it increases the number of federally recognized marriages and accompanying benefits" while others see it as good on equal treatment grounds.

[Tim]

It's bad because soon gays will be as stressed out and overwrought as the rest of us.
Gay's marrying is like unicorns cutting off their horns so they pull ploughs.

[SugarFree]

Not as much as other issues. "No state recognition of marriage for anyone" is a non-paleo principled response, even if a few fag-bashers hide behind it as well.

[Episiarch]

Totally agreed--that is the ultimate objective--but unfortunately a lot of queer haters hide behind it.

[MNG]

Well, yeah, I grant that non-paleo-libertarians think government should get out of the marriage business altogether but it seems only paleo's bring this up during recognition of gay marriage debates.

[PIRS]

Perhaps, but, if I were gay and I had to choose between two possible neighbors : 1. A homophobe who subscribes to the non-agression-principle and 2. A homophobe who wants to tell me how to run my life and who has no problem using force against me. Guess which one I would choose?

[PIRS]

Not that I am defedning homophobes, just saying.

[Robert]

Neighbor 2, who would be more entertaining.

[Rhayader]

I dunno, I wouldn't call myself a paleo, but to me it's the only solution. I'm also a dirty atheist who worries about official state sanction of religious principle though, so maybe it's just me.

[SugarFree]

ATHEIST!

[R C Dean]

I must have missed the part in the constitution that granted the executive branch the right to determine whether a law is constitutional or not and then whether to go ahead and enforce that law.

There's nothing in the Constitution that gives SCOTUS the final say, you know.

And every branch of government has a duty evaluate the Constitutionality of laws, and only pass, fund, or implement those that it concludes, in its independent judgment, are Constitutional.

[Rhayader]

I must have missed the part in the constitution that required the executive branch to expend finite resources defending every last piece of shit law on the books.

[Pro Libertate]

In theory. They try too hard to avoid constitutional crises, if you ask me. We could use one or two of those on occasion.

[DNS]

And every branch of government has a duty evaluate the Constitutionality of laws, and only pass, fund, or implement those that it concludes, in its independent judgment, are Constitutional.

So Kathleen Sebilius is, constitutionally speaking, a demi-goddess with plenary power, like Kenny Salazar? The rule of law only applies if they feel like it does?

[Pro Libertate]

One problem is that all of the crazy justifications for expansions of government power--which have twisted and corrupted the meaning of the Constitution--have made radically different views of the constitutionality of a government law, regulation, or action much easier to maintain. Which makes the possibility of a conflict all the more likely.

[Robert]

That's true, and I believe it's a conspiracy on the part of the legal profession to aggrandize themselves. Appellate judges, especially the federal ones (who can't be fired or have their pay or emoluments cut), have one great motiv'n under "public choice" theory: to make their decisions as unpredictable as possible, which can only be done by making the law as complicated as possible. It's exactly the opposite of what anyone who's not a lawyer would desire of the law, of course, but it's what makes them rich. The federal judges already have it made, of course, even if they just slept on the job all day, as long as they kept up "good behavior"; but they still have their egos to stroke, and the way they get att'n focused on themselves is by making it impossible to predict their decisions.

[Pro Libertate]

We are the priests
Of the temple of jurisprudence.

[BradK]

Our great conundrums
Fill the hallowed halls

[BradK]

All the gifts of life
Are held within our balls

[ola]

Now which article of the constitution authorizes "every branch of government has a duty evaluate the Constitutionality of laws, and only pass, fund, or implement those that it concludes, in its independent judgment, are Constitutional."?

[Pro Libertate]

This is a tricky point, as there is no final arbiter of constitutionality in the document itself. Each branch independently has a duty to act constitutionally, of course, and there is a tradition (better said that the Court self-declared this to be the case) that the Court has a little more weight as the interpreter of the Constitution, but that's about it.

Don't forget that federal officials personally swear an oath to uphold the Constitution.

[Robert]

There's nothing in the Constitution that gives SCOTUS the final say, you know.

Well, yeah, there's one big thing: the fact that they decide cases in controversy under the laws of the US. Hard to see that as meaning anything unless the Sup. Ct. has the final say.

[mark]

We are not talking about enforcing this law--Holder's letter says they will enforce unless or until it is repealed by Congress or struck down in Court.

What is at issue here is DEFENDING the law in Court. Helpfully, Holder's letter to Congress cites a brief law review article (I know that sounds oxymoronic)on that subject:

http://www.law.stanford.edu/di...../Defending Congress.pdf

Petards, gored oxen, etc.

[Tulpa]

If no one defends it, it's going to be struck down immediately when someone files a lawsuit against it.

[Robert]

No, then there's simply no case and there's a default judgement. The law never gets enforced so it never gets struck down.

[mr simple]

the administration has concluded that classifications based on sexual orientation must be subject to a higher constitutional standard than ordinary laws.

Why does this make sense and why has no one brought this up yet? I'm all for whomever contracting to whomever and getting rid of DOMA, but how can there be multiple levels of constitutional standards? You can't kind of enforce a law. It's this kind of thinking that let's them enforce laws deemed unconstitutional because they think the issue is too important for such concerns or whatever.

[Tulpa]

I suspect they're referring to different levels of scrutiny, eg, strict scrutiny (the law must serve a compelling state interest that can be accomplished in no other way) typically given to speech restrictions and the like, vs rational basis tests given to laws that don't contravene an enumerated right.

[Pro Libertate]

If it's not a clearly enumerated power, it should get strict scrutiny. Extreme strict scrutiny.

Rational relation tests might as well be called rubber stamp tests.

[Tulpa]

If a federal law dos not fall under an enumerated power then it should be struck down immediately, no scrutiny required. But DOMA does mostly deal with federal issues like immigration and such; the permission for states to refuse to recognize gay marraiges performed in other states probably falls under the Full Faith & Credit clause.

[Autonomy]

I see at least three different ways this could go. 1)the government(both state and federal) gets out of marriage completely. 2)Homosexuals are determined to be a protected class. 3)the legal definition is changed from "A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife." To "A contract made in due form of law, by which FREE PERSONS reciprocally engage to live with each other during their joint lives, in the union which ought to exist between CONSENTING ADULTS."

the first is obviously the best but only a libertarian wet-dream. Since I've never heard it advocated by either of the two mainstream ideologies, we may as well count it out.

The second option, in my opinion, opens the door to all kinds of problems, chief among these; Does a leader of a religious congregation retain his/her right to refuse to marry individuals of the same sex?

The third option seems to me a good one, but under the definition i laid out, polygamy and incest would also be covered and again, I've heard no one in the mainstream advocating that polygamy and incest should be recognized. Of course, exceptions could be stipulated in the law but if the argument is that consenting adults should be allowed to marry whomever they want (the best argument) then these exceptions would be logically inconsistent.

In lieu of Obama's ideology i see the second option as the one we would likely get. And this, i cannot accept.

[SugarFree]

The poor priest forced to marry teh gheys is riding off into the sunset on the back of a unicorn. On the centaur next to him is the Catholic doctor forced at gun point to perform an elective abortion.

[Tony]

The second option, in my opinion, opens the door to all kinds of problems, chief among these; Does a leader of a religious congregation retain his/her right to refuse to marry individuals of the same sex?

That's not a problem at all, as no member of the clergy is forced to marry anybody. Some refuse to marry previously divorced persons, and that's their right. The first amendment rules here.

[Tony]

The third option seems to me a good one, but under the definition i laid out, polygamy and incest would also be covered and again

Only if you willfully ignore the extremely simple emendations: "two free persons" and "two consenting adults."

[Michael Ejercito]

It was political pressure from gay activist groups that led to this decision.

Note the flak the administration got in its brief in Smelt v. United States (a brief that had argued that sexual orientation discrimination is only due rational basis scrutiny per High Tech Gays v. Defense Industrial Security Clearance Office).

Finally,. even if heightened scrutiny applies, the legislative summary and analysis of DOMA itself provides a compelling government interest. The summary mentioned that the Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15 at 45 (1885)

Reading further into Murphy, the Court also noted that legislation seeking to establish a "free self-governing commonwealth" on this basis was "necessary" and "wholesome". No doubt this was included in the summary to provide a ready defense against constitutional challenges. And far from ignoring that quote in subsequent decisions, the Suipreme Court used that quote to reach holdings in Davis v. Beason, 133 U.S. 333 at 344, 345 and United States v. Bitty, 208 U.S. 393 at 401. The government, had in fact, cited Murphy in its brief for its motion to dismiss in Bishop v. Oklahoma, Case No. 04-CV-848K(J), a constitutional challenge against DOMA and Oklahoma's Question 711. (Brief of the United States to Dismiss at 5, Bishop)(The case is still pending in NDOK)

"Given a number of factors, including a documented history of discrimination," Holder wrote in a statement, the administration has concluded that classifications based on sexual orientation must be subject to a higher constitutional standard than ordinary laws. And the federal Defense of Marriage Act does not meet that test, he says.

In Ex Parte Bain, the Supreme Court ruled

It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

121 U.S. 1 at 12 (1887)

How does the concept of homosexuals being a class deserving of heightened scrutiny consistent with the "the condition of the men who framed" the 5th Amendment in 1791?

[Jim]

Easy: the court is not perfect, and their decisions, and the wording of said decisions, is not infallible holy writ. If we were putting ourselves in their mindset, the negroes would have never been freed. That's an extreme example, but an apt one to show the limits of that kind of litmus test.

[Michael Ejercito]

If we were putting ourselves in their mindset, the negroes would have never been freed.

How so?

The thirteenth amendment explicitly freed the Negroes.

[Tony]

Who gives a flying fuck. Fuck. You are contorting yourself in knots trying to find a basis in legal writ to deny equal rights to gay people.

The beauty of the ability to change court precedent, as well as a flexible constitution, is that they let you at least attempt to find a way toward more freedom.

[Michael Ejercito]

Who gives a flying fuck. Fuck. You are contorting yourself in knots trying to find a basis in legal writ to deny equal rights to gay people.

No contortion is required to simply look at the history of the adoption of the Fifth Amendment to determine the condition of the men who framed that amendment with respect to this issue.

The idea that homosexuals are a class entitled to greater scrutiny in equal protection claims than, for example, horseback riders, canal operators, or carpet cleaners, is not only inconsistent with what the Fifth Amendment means, but was rejected by every appellate court that decided the issue. See Cook v. Gates , 528 F.3d 42 (1st Cir. 2008) Thomasson v. Perry , 80 F.3d 915 (4th Cir. 1996), Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir.1989), High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 535 (9th Cir. 1990), Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989), Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994)

[Tony]

Well isn't it nice that we don't have to appeal to the prejudices of centuries-dead men in order to make our policies?

You are cherry picking court cases that confirm an anti-gay view. Why? That is really a lot of research to justify an anti-freedom, anti-equality, essentially homophobic viewpoint. What's the point? It's not like equal rights aren't inevitable...

[Michael Ejercito]

You are cherry picking court cases that confirm an anti-gay view. Why? That is really a lot of research to justify an anti-freedom, anti-equality, essentially homophobic viewpoint. What's the point? It's not like equal rights aren't inevitable...

If equal rights are so inevitable, campaign for a constitutional amendment. Make your argument to the legislators that the Constitution needs to be changed.

It has been what, nearly thirty-nine years since the Supreme Court upheld the traditional definition of marriage against due process and equal protection challenges? What are you afraid of? Go out there and say we need a constitutional amendment that, for the purposes of federal and state law, defines marriage without respect to sex.

[Al Wayswright]

While most often right, once again, Nick Gillespie and Reason Mag/.com get wrong the issue of "gay marriage" as they get wrong the issue of "illegal immigration".

Supporting gay marriage amounts to support for Socialism since gays seeking marital status is a welfare money issue.

In short, gays want survivor death benefits from Social Security. If granted marriage status, gays shall become entitled by law to such benefits as well as all welfare flowing from the Social Security administration.

Likewise, when Nick Gillespie and Reasoners champion illegal immigration, they champion Socialism (living by bureaucrats who decide who gets what and often who does what).

Always, the correct stance as a libertarian is to push back any further encroachment of politicians and bureaucrats (aka government) into the lives of individuals for such acts work to destroy Freedom (the virtual realm where a man is self-sovereign) and enhance Officialdom (the virtual realm where politicians dole out privileges to persons who fit within defined classes of privilege).

All libertarians should oppose gay marriage, illegal immigration and anything else that fosters the growth of government at the expense of liberty.

[Jim]

I think we're all in agreement that gov't should get out of the marriage business altogether.

But failing that, what is the next-best solution? Surely you can't think that it's to allow discrimination on the excuse that it lessens gov't authority. It doesn't. Banning gay marriage ENHANCES gov't authority, by declaring that the gov't has the right to make, and spend resources to enforce, it's preferred definition of a social institution such as marriage. Removing that obstacle reduces gov't interference in life.

[Tony]

So you're for open borders, I take it?

[Jim]

I am. Borders only exist to enhance gov't enforcement capability. How else do they know who they can tax (and yes Tony, it is theft) and who they can't? Also, it protects labor from having to compete with people who would be willing to do the work for less money. Businesses should be free to make contracts with whomever they want to for employment.

That having been said, I understand the problem of providing tax-payer funded services for all of them, which is why I'm also against the welfare state in general. That, or do like we do in Texas, and just have a consumption tax + property tax. The illegals here can't avoid paying for their share of state services, because every time they purchase anything or pay rent to a landlord (who presumably includes his tax burden in the rent), they're contributing.

[Michael Ejercito]

Supporting gay marriage amounts to support for Socialism since gays seeking marital status is a welfare money issue.

That is incorrect.

Were that the case, AFER and other gay rights groups would focus more on the DOMA cases, the Oklahoma marriage case, and the Texas divorce case, where substantial benefits are at stake, than the California case, where only social meaning and cultural meaning are at stake.

[Tony]

Couldn't be any other reason gay rights groups aren't bothering with Oklahoma and Texas?

I live in Oklahoma. I'm pretty sure I know!

[Tulpa]

Seriously, the Obama administration seems to be randomly thrashing about on pretty much every policy front at this point. He's lucky the populace was able to vent their anger in the midterm elections, otherwise he'd just be Qaddafi with less nail polish.

[BradK]

I wouldn't characterize this as "thrashing about" so much as cold political calculus. As you brought up the midterm elections, do you think it's a coincidence that The Messiah waited until a small but comfortable window of time after to pull this about face? For the past 2 years his Justice department has been vigorously defending DOMA.

His evolution (or enlightenment or whatever bullshit term His apologists might utter) is about reading the tea leaves and understanding how the political winds have shifted such that an anti-gay -- or at the least, anti-gay marriage -- position is no longer expedient. Everything this administration will do and say for the next 18 months is all about getting to Term Two. That this realization even occurred says as much about the continued (if all too gradual) marginalization of the SoCon agenda as it does about any true spirit of getting gov't out of regulating or restricting personal, consensual arrangements.

And let's not forget the douchebag that originally signed this into law 15 years ago, all the while getting his knob nibbled under the desk by that woman he wasn't having (heterosexual) sex with.

[MJ]

"For the past 2 years his Justice department has been vigorously defending DOMA."

No, they have been publically defending DOMA, while at the same time quietly abandoning its supporters strongest arguments. Obama's Justice Department has been willfully sabotaging the defense of DOMA from the beginning.

[MJ]

"It is a misguided attempt to define for all time an institution that is constantly, if slowly, evolving. Its supporters may think they can stop social evolution in its tracks and enforce a singular vision of the good society."

What's misguided is the assumption that marriage is naturally evolving in the direction the same-sex marriage activists want it to. What we are seeing are not changes flowing organically from a change in general opinion on the subject, but rather an imposition of moral values by an elite minority who are arrogant enough to judge themselves more enlightened on these issues than the common man. That's why same-sex marriage succeeds in the courts but fails at the polls. It is a forced evolution, trying to drag public opinion along with it.

[Michael Ejercito]

What's misguided is the assumption that marriage is naturally evolving in the direction the same-sex marriage activists want it to. What we are seeing are not changes flowing organically from a change in general opinion on the subject, but rather an imposition of moral values by an elite minority who are arrogant enough to judge themselves more enlightened on these issues than the common man. That's why same-sex marriage succeeds in the courts but fails at the polls. It is a forced evolution, trying to drag public opinion along with it.

This is so true.

The only attempt to change a state constitution to ensure same-sex marriage was an attempt at an initiative amendment in Colorado, which failed to get on the ballot.

And Maine rejected by public referendum same-sex marriage. Recall that Maine does not have enough social conservatives and Roman Catholic anchor babies to fill a high school gym.

[DanielHirsch]

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