Supreme Court

Gay Marriage Advocates Embrace Federalism, Reject New York Times

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Last week I criticized a column by New York Times legal pundit Linda Greenhouse which argued that "the campaign for marriage equality would be worse off" if the Supreme Court voided the Defense of Marriage Act on federalism grounds. "A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture," Greenhouse asserted, dubbing the federalist case against DOMA a conservative "Trojan Horse" designed to outlaw gay marriage at the state level.

I'm happy to report I am not alone in finding fault with Greenhouse's work. At the blog of the liberal American Constitution Society, two prominent lawyers involved in "the campaign for marriage equality" have rejected Greenhouse's dubious assertions and endorsed a federalist argument against DOMA. As Mary Bonauto, the Civil Rights Project Director for the group Gay & Lesbian Advocates & Defenders, and Paul Smith, the Washington lawyer who argued and won the 2003 Supreme Court case Lawrence v. Texas, observe:

The primary concern [Greenhouse] expressed was that a decision invalidating DOMA on federalism grounds would, by emphasizing the primacy of states in setting marriage policy, somehow immunize from constitutional challenge those states that have chosen not to extend marriage rights to same-sex couples. But this concern reflects a mixing of constitutional apples and oranges.

The federalism concerns raised by DOMA have to do with the power of Congress. It is Congress that chose in 1996 to exclude only same-sex couples married under state law from the otherwise capacious category of state law "marriages" recognized under federal law. It expressly did so in part to undercut potential state choices in favor of marriage equality. When that law is challenged as discriminating against gay couples, the fact that Congress has no general power to marry people is properly weighed in the balance when lawyers try to come up with substantial justifications for what Congress did….

Whatever one's political inclinations, it is not possible to find another example of federal legislation that comes anywhere close to DOMA. And that understanding leads to the last and perhaps most important lesson that federalism teaches in this case. When the federal government acts in a way that not only is unprecedented, but also violates some of the basic principles of federalism, courts enforcing the equal protection guarantee have good reason to search more carefully for the government's real motives.

Read more about the federalist case against DOMA here.

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  1. Sometimes dude you just have to roll with it.

    http://www.AnonHit.tk

    1. Dude, you say that a lot. It’s a meaningless platitude. And every time it puts REO Speedwagon’s “Roll with the Changes” into my head.

      1. You’re just mad that it beat you to first.

        That reminds me, you’ve been less aggressive about that lately, is everything ok in FoE land?

        1. I have made a concerted effort to level the playing field.

      2. Oh come on. Clearly it should be Steve Winwood you’re thinking of.

      3. Better an REO song than a Katy Perry one.

        1. I actually don’t think I can agree with this, amazing though that may be.

          1. After hearing California Gurls at the gym every 15 minutes for two months I would wake up with it in my head. I considered jumping off a building.

      4. And every time it puts REO Speedwagon’s “Roll with the Changes” into my head.

        Sometimes dude you just have to ride the storm out.

      5. I just can’t fight this feeling anymore.

  2. dubbing the federalist case against DOMA a conservative “Trojan Horse” designed to outlaw gay marriage undermine most of the liberal sacred cows at the state level.

    The real fear he has, as with all liberals, is in undermining federal power in general. He could give a rat’s ass about gays and gay marriage.

    1. I’m pretty sure Linda Greenhouse is a chick. Although I suppose you never know these days. Perhaps I should stop “othering” the transgendered.

  3. Are you suggesting that an NYT legal specialist doesn’t actually understand how the Constitution works?

    P.S. Equal protection clause only applies to the states anyway, not the feds.

    1. Exactly, Prop 8 is their best bet for getting same-sex marriage recognized under the EP clause.

  4. Before Sarcasmic posts: Seriously, Sarc, where do you live? I can do the google search for you, and find you a nice gay bar. Doesn’t have to be a loud club if that’s not your scene any more, but I’m sure you will be around a really nice, classy gay bar in the next few months, you can pick up a nice fellow, get your rocks off for the first time in months, and start to get over your last boyfriend. We get that that jerk really hurt you, and we want to help.

    1. Oh, did he finally come out?

    2. So it would seem that there is a large population of gay people like Sarcasmic (and everyone else who disagrees with you about SSM) who are so mentally twisted by their sexual hang-ups that it leads them to advocate against the interests of their own group.

      So we’ve established, haven’t we, that large numbers of gay people advocate bad political positions because of their sexual hangups. Assuming this is true (and you make that assumption), what implications does this have for whether to grant gay political demands?

      (nb – I am simply drawing implications from your own premises, I don’t necessarily share them)

      1. How very Glenn Beck-esque of you EvH.

        1. You should just feel lucky he took off valuable time from his hobby molesting abortions to Jonathan Swift your secular ass.

          1. “molesting abortions”

            Dare I even ask what that means?

        2. You listen to Beck? You have the advantage over me.

          1. Zing! I’m jealous that you’ve never been exposed to the wild logical leaps of Mr. Beck, sadly I’ve had to occasionally care for a grandparent who kept Fox News on at deafening volume ALL. THE. TIME.

            1. Is it really that bad? The few times I have seen the show while flipping channels, it hasn’t seemed that bad*.

              *Rating on a curve given the sad state of punditry, of course.

              1. His show is frequently structured as

                Rational thought or agreeable fact
                Rational thought or agreeable fact
                Rational thought or agreeable fact
                AND SO YOU CAN CLEARLY SEE
                Crazy ass conclusion that’s tangentially related to previously stated rational thoughts or agreeable facts.

                1. Ah, so it’s the Alex Jones show, only with a little rationality or factuality spruced in to lead you off the scent.

                  Got it.

              2. For the best of GB I suggest episode about “Independence Park.”

                http://www.video.theblaze.com/…..d=25550259

            2. Oh wow. That would suck. I can’t take more than 5 minutes of him and his sycophants on the radio. The sanctimonious dripping wet sarcasm and over the top false modesty makes me want to drive to wherever he is at and punch him in the face.

          2. You listen to Beck?

            I was never a huge Beck fan either. Here’s one of his most popular songs: Loser.

            1. I like Pink’s “Blow Me (One Last Kiss)”

              http://www.youtube.com/watch?v=3jNlIGDRkvQ

      2. So we’ve established, haven’t we, that large numbers of gay people advocate bad political positions because of their sexual hangups.

        Nope. Therefore your entire argument fails.

        1. I don’t claim this – but several people here claim it. One of their favorite arguments against any given opponent of SSM is that they’re gay.

          I don’t share this assumption, I simply point out to those who do the implications of their beliefs.

          1. One of their favorite arguments against any given opponent of SSM is that they’re gay.

            Who has argued this and where? There is no one here who is calling sarcasmic gay because he is against SSM. And no one says it about you, so your “any given opponent” line is BS.

            1. “That’s funny, I would have thought you would have been more partial to my dad, considering the closeted nature of most homophobes. You really would be much happier if you just stopped denying. There’s absolutely nothing wrong with being gay.”

              https://reason.com/blog/2013/02…..nt_3567308

              1. “the closeted nature of most homophobes” != “you are gay because you are against SSM”

                Hell, it doesn’t even mean you’re a homophobe because you are against SSM.

                1. “Hell, it doesn’t even mean you’re a homophobe because you are against SSM.”

                  Then I must assume you haven’t read that particular thread.

            2. “Santorum, see, has “shook the hand of the American dream, and it has a strong grasp.””

              And then The American Dream gave Santorum a squeezer in the public park bathroom and told him that it can be found in stall #3 most Saturday nights if its wife is out of town.

              https://reason.com/blog/2012/08…..nt_3227355

              1. Imputing psychological disorders onto people for holding an opinion is bad form, I agree.

                …but that crack at the expense of Santorum’s poor phrasing is just funny, I don’t care who you are.

                1. but that crack at the expense of Santorum’s poor phrasing is just funny

                  Talk about funny phrasing…

                  1. Was wondering if any of you degenerates would pick up on that.

              2. Oh, no. I insulted everyone’s favorite miscarriage cuddler. Who should be in jail for tampering with evidence in a murder investigation.

                I don’t think Santorum is gay because he opposes SSM, I think he’s gay because of those fruity sweaters.

                1. Who should be in jail for tampering with evidence in a murder investigation.

                  Not to mention child abuse. I mean, you let your kids see some pot and they get taken away permanently, but you force them to cuddle with a dead fetus and then go on to run for president?

                2. Just to educate me, could you point to where there was a murder investigation into the death of Santorum’s child? I’m not saying there was or wasn’t, just that I would love to be enlightened on this topic.

                  1. Just to educate me, could you point to where there was a murder investigation into the death of Santorum’s child?

                    Oh, that’s by your standard, Eddie. I mean a person with full rights is dead, right? Shouldn’t there be a homicide investigation? That citizen was in the care of Mrs. Santorum and died. Are we just supposed to ignore the possibility of murder or criminal negligence?

                    And, of course, if your 12-year-old was murdered, it be OK to take the body home and bathe it and pass it around to all the members of the family before any sort of investigation took place, right? No one would blink an eye.

                    1. With all due respect, I have addressed that particular talking point in several previous threads.

                    2. And SugarFree specifically accused Santorum of “tampering with evidence in a murder investigation,” implying that there actually *was* an investigation.

                    3. You’ve dodged it with mumbles. I’m not sure I call that “addressing.”

                    4. Please give me a link showing that there was a “murder investigation” in the case of Santorum’s kid.

                    5. I saying there should have been, by the standards you want to impose.

                      Begin mumbling now.

                    6. Project much? You mumbled that Santorum
                      “should be in jail for tampering with evidence in a murder investigation.”

                      Apparently what you *meant* to say was that Santorum *would* have been guilty of obstruction if there had been a murder investigation. Which there wasn’t. But definitely should have been. Mumble mumble Santorum sucks mumble mumble.

                    7. Try and control your emotions, Eddie. Getting all worked isn’t going to help.

                    8. Did you go to film school? Because you seem focused on projection.

                      You’re the one who would put someone in prison for obstructing a nonexistent murder investigation. Because Santorum. Nope, noting emotional about that.

                    9. Poor Eddie. Just take a few deep breaths to calm yourself.

                    10. Explain the legal mechanics by which someone is sent to prison for obstructing an investigation which doesn’t exist. Try and stay calm while you explain it.

                    11. I haven’t seen EvH’s responses to that line of argument, but I would point out that there are very few jurisdictions where reporting the death of someone in your care will initiate a criminal investigation.

                      If you are taking care of an elderly woman, she dies, and you report the death, you won’t come under investigation.

                      The same is true when it comes to children.

                      Someone needs to claim otherwise for a criminal investigation to proceed. Why would it be any different in the case of a law against abortion, assuming that such a law would institute criminal penalties for women who get abortions (Poland for example does not have such a penalty for women who undertake the procedure)?

                    12. If you are taking care of an elderly woman, she dies, and you report the death, you won’t come under investigation.

                      So you can just flush her down the toilet and no one will bat an eye? A county or city examiner doesn’t want to take a look at her? An ambulance (who has a duty to report) or a funeral home (which in many states also has a duty to report) wouldn’t make at least a cursory examination of the body which might turn up signs of foul play?

                      And this isn’t the death of an elderly woman; it’s the death of a child.

                      The logical consequence of treating a fertilized ovum as a person creates a police state ripe for abuse, especially with duty-to-report-laws. That abortion opponents know that a 8-week miscarriage will never be treated the same as a dead 3 year-old serves to highlight their hypocrisy.

                    13. this isn’t the death of an elderly woman; it’s the death of a child.

                      Implicit in this statement is the presumption that two people who have the same rights (the elderly and children’s right to life) will nonetheless have divergent treatment and investigation under the law pursuant to protection of those rights.

                      Looking at it from the perspective of a pro-lifer, why would applying similar reasoning to a fetus suddenly be hypocritical? And as far as I know, there is no pro-life country in the world with such an Orwellian approach to pro-life legislation.

                    14. Wait, what the hell — this is a gay marriage thread! I didn’t sign up for this discussion!!

                    15. Wait, what the hell — this is a gay marriage thread! I didn’t sign up for this discussion!!

                      It’s a gay marriage/abortion hybrid thread. I’m surprised there aren’t ? comments on this article.

                    16. Their reasoning for outlawing abortion is that it is murder, yet they backpedal by acknowledging that miscarriages will never be investigated like the death of a 2 or 3-year-old.

                      At best they are under-cutting their original assertion, at worst they are advocating a two-tiered approach to investigating deaths (which also undercuts their original assertion.)

                      And it opens up a huge potential for abuse when 80% of pregnancies could–on the discretion of the police–be turned into wrongful death investigations.

                    17. “potential for abuse”

                      And I presume you have some non-Rumanian examples of such abuse in jurisdictions which have banned abortion?

                    18. I’m not seeing it.

                      We already have an n-tiered approach to investigation of murder, manslaughter, and negligent death. Speaking for myself, adding one more tier to the pile doesn’t bother me provided that it is meaningful, rights-respecting, and has positive outcomes.

                      We no doubt both agree that investigating every miscarriage is neither meaningful nor rights-respecting — and if I had to guess, I’d wager that wasting police resources on investigating a natural phenomena would not have positive outcomes, either. Thus it can easily be rejected as a possible application of my pro-life principles.

                      I do agree that pro-lifers should give careful consideration to what legal changes they plan to institute, but given the precedent of pro-life legislation in other countries I don’t think that the legal system you describe is a likely outcome.

                    19. We no doubt both agree that investigating every miscarriage is neither meaningful nor rights-respecting — and if I had to guess, I’d wager that wasting police resources on investigating a natural phenomena would not have positive outcomes, either. Thus it can easily be rejected as a possible application of my pro-life principles.

                      Because if there is one lesson, Trouser, you learned from this site, it was apparently that cops and prosecutors are benevolent and would never abuse their authority.

                      Seriously, I understand libertarian pro-life arguments, but you folks, who in every other case worry about the “3 felonies a day” stuff, suddenly decide that police and prosecutors will be benevolent and reasonable in prosecuting anti-abortion laws, that these laws would never expand to include potentially abortion causing behavior like drinking or smoking, etc.

                      I’m sorry, but when it comes to a clump of cells (and yes, I do not believe a fetus is a human person, nor is a one day old. Humanity, for me, is a sliding scale, which does lead one to the horrific but sadly accurate conclusion that people with severe developmental disabilities aren’t fully people. I’m not saying that should be reflected in law or anything, but realistically speaking, they aren’t moral agents in the same way we expect normal adults to be, etc.), you basically lose your principles and become statists because a medical procedure makes you feel bad.

                    20. I don’t think that cops are benevolent and reasonable at all, but I also don’t think that’s sufficient reason to not have a law at all — especially when there’s no empirical evidence that such a law has led to such outcomes in countries which have such laws.

                      It baffles me that libertarians who advocate for empiricism in other contexts completely ignore the empirical record of pro-life legislation in favor of hypotheticals which simply have not occurred in large numbers compared to laws against murder.

              3. And now you’re going to act like there isn’t a long and storied tradition of making fun of Rick Santorum, whose very name has been redefined to mean something to do with anal sex. Do you really not get that these are longstanding jokes based on the totality of people’s experience with (in one case) a public figure and (in another case) regular commenters? Also, what makes you think the American dream is a man?

                1. whose very name has been redefined to mean something to do with anal sex

                  NO NO NO.

                  It means “the frothy mixture of lube and fecal matter that is sometimes the byproduct of anal sex.”

                  Words have meaning Nicole.

                2. “a long and storied tradition of making fun of Rick Santorum, whose very name has been redefined to mean something to do with anal sex.”

                  And you don’t think this contradicts your claim that nobody calls SSM opponents gay?

                  Really?

                3. Also, what makes you think the American dream is a man?

                  I’ve SEEN the future American Dream. Do you know what it is? It’s a 47-year-old virgin sitting around in his beige pajamas, drinking a banana-broccoli shake, singing “I’m an Oscar Meyer Wiener”.

            3. “Homophobia might mean you’re gay, according to new research.”

              https://reason.com/blog/2012/04…..how-al-qae

              1. Homophobia has been correlated with repressed same sex attraction (I think the studies are limited and confirm popular assumptions, but I’m also not a social sciences guy), but not all opposition to gay marriage is driven by homophobia.

                But you’re asserting (and distinctly ignoring nicole (sexist!) that we dismiss ALL opponents of gay marriage as homophobic closet cases. Epi is just busting YOUR balls because he gets a rise out of you, and I’ve never seen anyone float that John or robc are self-loathing closet cases even though they’ve made themselves clear that they oppose gay marriage for various reasons.

                So fail.

                1. Well, if you don’t take that position, then I wasn’t referring to you when I said that “several people here claim” that SSM opponents are homophobes. Epi, however, certainly does make that claim, and I am suggesting that there may be a few logical flaws with the conclusions he draws from that premise.

                  1. The whole jab on Sarcasmic is that he brings it up – even in unrelated forums – in a fashion that appears overcompensatory.

                    1. The whole jab on Sarcasmic is that he brings it up – even in unrelated forums – in a fashion that appears overcompensatory.

                      Look at all the comments that were generated, and I didn’t even have to initiate it!

                      What power I have!

                      Muahahahahaha!

                    2. What power I have!

                      I was going to make a “power bottom” joke here, but that’s tasteless so I’m not going to say anything at all. Because I never tasteless. Ever.

                  2. Epi, however, certainly does make that claim

                    I don’t think he does. I may have just missed it, but John gets just as worked up about gay marriage as you and sarcasmic do and Epi hasn’t made any (that I’ve seen) jabs at him for being a closeted homophobe.

                    1. That may be because the John-as-pervert meme has already been taken up in a hetero context.

                    2. Possibly, but the John vs sarc battles over ladies are epic. I think if you went through and looked at all the people who have strong opinions on the topic I doubt you’ll find many of them have been pegged as self loathing closet cases.

                    3. “pegged”

                      What you did there…

                    4. 😀

    3. In the wilds of Maine I think you’re just supposed to go to a truck stop or something instead.

      1. Hey they just have wide stances in Maine.

      2. There are no more open rest areas in the state because the cops got sick of being called to complaints about gay orgies.

        1. “Highway rest areas have become the bath houses of the nineties for many, many gay men… but we’ll dive into that next week.”

  5. I once knew a guy who was super well groomed, but not gay.
    He was into hunting and football and trucks and his beard, but not gay sex.
    He was so not into gay sex that he would go on for many minutes describing in detail all the gay sex practices and positions he would never do.
    Totally. Not. Gay.

    1. well groomed + beard? Impossibru.

      1. I’m saddened by your comment Randian, it’s a fine balance, but it can be achieved.

        (I’m not currently achieving it being on the balance more bearded than well groomed)

        1. I am bearded but not well groomed.

      2. His beard was so well cared for all the hairs in it were straight and aligned properly with each other at all times. Straight. Beard.

        1. Umm, can you find out his secret? My beard gets bushy fast; I’m too lazy to care for it constantly, but I’d occasionally like to have it look tame and elegant for weddings and/or securing a mate.

          1. None for me, thanks. My beard longs to be free of your conventions of grooming and social acceptance.

          2. His secret was totally. Not. Gay. It was super manly and, did I mention, not in the least bit gay?

            Seriously, I haven’t seen him in years. Probably because I wasn’t Not Gay enough for him.

          3. He kept it closely trimmed but he had so much hair it was more of a pelt, so even trimmed, it looked like a full beard.

          4. Umm, can you find out his secret? My beard gets bushy fast; I’m too lazy to care for it constantly, but I’d occasionally like to have it look tame and elegant for weddings and/or securing a mate.

            You can buy a haircutting razor (I got mine at WalMart) that has combs you attach that cut everything to whatever even length the comb permits.

            If you want a mate, your best chance is to lose the beard. A few chicks like them (like my GF), but you’ll expand your dating pool if you go smooth.

            1. Jesse isn’t looking for chicks.

              1. Then a short freshly shaved beard would work fine, if the times I’ve been dancing at gay clubs is any indication.

            2. Women who aren’t attracted to bearded men are pedophiles.

            3. Yeah, currently the beard works strongly in my favor provided I don’t show up in West Hollywood which is still mostly stuck in ’90s hairlessness and tank tops. I’m ok with that.

              I have a beard trimmer and it keeps things even, but my beard is long enough and the hair comes in at wild enough angles that it doesn’t look particularly well groomed. My beard is currently a few days out from the 20mm longest setting of my trimmer.

      3. well groomed + beard? Impossibru.

        Sometimes, Randian, you make so much sense, and then other times you say good things about Katy Perry.

        1. Blinded by boobs.

    2. I usually grow out the facial hair when it gets cold outside. It’s nice to have a beard when you’re operating a snow blower in a blizzard.
      Anyway, it’s groomed. Like once or twice a month.

  6. The “pro-gay” anti-federalist legal argument in this specific case seems to mirror that of Dred Scott — that the states *have* to recognize one another’s legal arrangements, because FedGov.

    Nope.

    IMO the portion of the law where the FedGov can arbitrarily decide which state marriages it will and will not accept when it comes to granting benefits is on dubious legal footing and is a valid area for the courts to look at. States being forced to accept each others’ legal arrangements? Not so much.

    1. What about the UCC?

      1. The Uniform Commercial Code had to be ratified in all 50 states, and was so ratified. I take it that’s what you’re referring to with UCC…?

        1. That’s what I was referring to.

  7. The NYT times got it back asswards, as usual.

    If the Feds have no power to treat gay marriages differently than straight marriages in the tax code and whatnot, because regulating and defining marriage is not an enumerated power under the Constitution, then that HELPS the legal argument that states and cities treating couples differently based on gender of the partners violates an unenumerated right under the Ninth Amendment.

    It doesn’t PROVE that argument, but it certainly strengthens it.

    1. What about poly marriages or marriages between siblings/cousins/etc?

  8. So which is it, same sex marriage or marriage equality? Unlicensing marriage leads to equality. Same sex marriage just casts a tax filing and inheritance status a little wider, which is still unequal.

    If they were interested in “marriage equality” they would be advocating licenses for everybody who wants to plop down $100, or they would advocate an end to the special status. Recognizing unrelated couples of any sex combination does not get there.

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