The federal complaint in Commonwealth v. HHS was filed yesterday by Massachusetts, which is asking for federal recognition of its same-sex marriages, not for the invalidation of all state laws limiting marriage to opposite-sex couples. Massachusetts makes two federalism-based constitutional claims against Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law.
The first claim is that Section 3 “violates the Tenth Amendment, exceeds Congress
Randy R. says:
It will be interesting to see if Republicans are really in favor of states’ rights. On this issue, I’m not holding my breath….
DC: Fair point. But doesn’t the argument run both ways? Support for a strong version of states’ rights seems to have a lot of new friends.
July 9, 2009, 11:53 pmMark N. says:
I think there’s a citation slip-up here: presumably rather than Lopez v. Dole (which doesn’t seem to exist), you mean South Dakota v. Dole, 483 U.S. 203 (1987), upholding the National Minimum Drinking Age Act’s threat to withhold highway funds in order to induce South Dakota to raise its drinking age from 19 to 21?
DC: Good catch.
July 9, 2009, 11:57 pmJonC says:
Matthew Franck suggests that the suit is likely to be dismissed for lack of standing, pursuant to Massachusetts v. Mellon.
July 10, 2009, 12:07 amPutting Two and Two... says:
How so? I personally do not believe in a states-rights understanding of what I see as a fundamental human right. But if someone else does see a “solution” in which the issue is decided state by state, by what logic does the federal government take the approach of only the “no” states?
I don’t expect traditional states rights advocates to support the MA case because I agree with them, I expect them to support it because to do so would be consistent with their own philosophy of state authority and federal recognition of that authority.
July 10, 2009, 12:13 amCareless says:
out of morbid curiosity, when was the last time the 10th was used to protect/advance a right?
July 10, 2009, 12:13 amMark N. says:
The linked post doesn’t really explain why that would be the case, though. Massachusetts v. Mellon only excludes original-jurisdiction suits that claim a very generalized standing based on the State representing the interests of its taxpayers. But in this suit, Massachusetts is alleging that the State itself has had an unconstitutional financial burden imposed on it. That seems like it should give it sufficient standing to bring suit, much as South Dakota had standing in South Dakota v. Dole, even though it ended up not prevailing.
July 10, 2009, 12:23 amJohn Thacker says:
Of course, would “really in favor if states’ rights” include favoring, by contrast, section two of DOMA, which claims that the Full Faith and Credit Clause does not extend to states having to recognize gay marriages just because other states do? What does “really in favor” mean?
Yes, but of course defining that can be tricky. Is providing funds that can be used for any education, but not religious education, a restriction on the free exercise of religion? And the same with prohibiting items used in religious ceremonies? What about NEA v, Finley, asking the question of exactly how government can decide to fund some speech but not others, and when that might bump up against the First Amendment? And of course you get the arguments rejected in Loving v. Virginia that blacks and whites were both equally free to marry within their own race. If Medicaid can’t be made available only to whites, could it be made easier to qualify for blacks, to remedy a history of discrimination? Medicaid can’t be made available only to women, but the government can create a program for an affliction that only affects women. Scholarships and admissions can favor women and minorities, but apparently not too much or not too obviously.
July 10, 2009, 12:27 amJay says:
To raise another Bluebooking issue, I’m skeptical the case should be called Commonwealth v. HHS in federal court. I would suggest Massachusetts v. U.S. Dep’t of Health &Human Serv.
DC: Goodness, this alerts me to a terrible citation error. I can’t believe I placed a period after the “v”. A clear Maroonbook violation.
July 10, 2009, 12:40 ameinhverfr says:
John Thacker:
Personally I would have no problem with section 2 of DOMA if it didn’t discriminate between same-sex and opposite sex marriages.
States shouldn’t have to recognize any marriages performed out of state, expecially those which were not done in accordance with the laws of that state. For example, I don’t see why Washington should have to recognize Nevada drive-in marriages, or why Louisiana should have to recognize common-law marriages. It doesn’t hurt anyone to have to renew vows now and then and moving is as good a reason to do so as any ;-).
But let’s not make this discriminatory.
July 10, 2009, 12:47 amGabriel McCall says:
Success for Massachusetts would likely help advance a result it expressly disclaims: the invalidation of all laws excluding gay couples from marriage. The upshot, then, is that a lawsuit to protect state power against a one-size-fits-all federal definition of marriage would hasten a one-size-fits-all federal definition of marriage.
It looks to me like Massachusetts’s goal is to delete any federal definition of marriage and revert authority over domestic relations to the states. I’m not sure how we can equate an express lack of a federal definition of marriage with a one-size-fits-all federal definition of marriage.
July 10, 2009, 12:54 amRandy R. says:
John Thacker: “What does “really in favor” mean?”
First, It would mean not attempting to pre-empt states from granting SSM by passing a constitutional amendment banning SSM everywhere, as some members, mostly Republicans, tried to do in congress a few years ago, and is part of the Republican party platform.
It would also mean, as einhver says, that one state can grant SSM, another won’t, and the later doesn’t have to recognize it. Or it may, it if chooses to do so.
July 10, 2009, 1:06 amJohn Moore says:
In the first case, it takes a real stretch to imagine that equal protection extends to same sex marriages. If it does, how about polygamous marriages?
In the second case, the government continually (if abominably) uses its funding power to coerce the states. For example, the 55mph federal speed limit was done by threatening to withhold federal highway funds.
There’s nothing here.
July 10, 2009, 1:16 ameinhverfr says:
Randy:
I don’t think the federal government should be able to limit faith and credit elements to same sex marriage considerations. As long as section 2 of DOMA applies equally to opposite sex marriages, I have no problem with it. However, I think for the government to effectively pick on gays is problematic.
Instead what we have is fair weather federalism which is a bigger problem. I don’t understand why Congress should be able to require that Washington recognize Nevada’s drive-through marriages (and drive-through divorces too!) but is not required to recognize same-sex marriages performed in Massachusetts.
July 10, 2009, 1:28 amDavid Hardy says:
I think Ps have standing. As to the merits… it depends upon whether they can find a court or courts that takes things like federalism, limits on the spending power, etc. seriously. I would be rather happy if they did.
July 10, 2009, 1:36 amBorris says:
Dred Scott, Part II?
Instead of bringing slaves to free states, we’ll be bringing same-sex couples to traditional marriage states.
Oh, the Constitutional fun we’ll have.
July 10, 2009, 2:30 amKen Arromdee says:
The first claim is that Section 3 “violates the Tenth Amendment, exceeds Congress
July 10, 2009, 2:41 amSoronel Haetir says:
Ken Arromdee,
Because we don’t have honest courts.
July 10, 2009, 3:02 amOren says:
Because no one claims a constitutional right to be forbidden to have an abortion.
Come to think of it, I don’t know that anyone has ever claimed that they have the right to not be allowed something. Ever.
July 10, 2009, 3:17 amOren says:
And, as I’ve said before, the proper solution is for MA to refuse to recognize the marriages performed by States that do not recognize MA marriages. If the FFC does not require TX to recognize MA marriage, surely it doesn’t requires MA to recognize TX marriages.
July 10, 2009, 3:19 ammgh says:
I just wanted to say, I think you’re missing the forest for the trees, here.
DOMA is an unprecedented intrusion into the ability of states to define who and who is not married. Yes, the individual instances of that are minor and all within the federal powers. But that’s not the point.
The point is this: the federal government has never before been able to pick and choose amongst states’ definitions of a marital or domestic status. DOMA is the first time that the federal government has ever said that it would not recognize a marital status created by a state — it’s simply unprecedented.
If we truly believe in a sphere of powers left to the states, and in the states’ rights decisions of Morrison and Lopez, then can there by anything more central to a state’s power than its ability to regulate the domestic relations of its inhabitants? If not, then what, really, is reserved to a state if the government can so recklessly throw asunder what state law has created..?
DOMA is not just federal policy for federal policy’s sake. It undermines what the states are doing and pretends as if those relationships are not there. That clearly violates the states’ sole power to order domestic relations.
Also, I think we go astray by falling into commandeering claim, and I think you’ll find that’s not where this challenge is headed.
July 10, 2009, 3:31 amBRM says:
It is an interesting question how Mellon affects the Massachusetts’s standing (and that Mass. is the state involved in both cases). It can probably be distinguished. In Mellon the complaint was a generalized grievance that the Maternity Act (I think that was the statute) was beyond Congress’s power to enact because, in part, it intruded on the state sphere protected by the Tenth Amendment. Massachusetts did not have any specific interest that was differentiable from other states (or from its citizen Mrs. Frothingham, who also challenged the statute in the companion case). Here, Massachusetts has a distinguishable interest from other states because DOMA specifically harms Massachusetts as a state that recognizes and allows same sex marriage.
Of course, in standing cases courts tend to distinguish when they support the underlying case and not distinguish when they dislike the underlying claim. So I wouldn’t bet too much either way.
July 10, 2009, 4:59 amPublic_Defender says:
This might make the perfect private plaintiff.
July 10, 2009, 8:28 amtroll_dc2 says:
When I first heard about the lawsuit, the problem of standing was the first thing that came into my head. This is not the first time that Massachusetts has tried this. See, e.g., Massachusetts v. Bull HN Informations Systems, Inc., 16 F.Supp.2d 90 (D. Mass. 1998) (standing found to enforce ADEA).
But the harm that the state alleges here to itself seems hypothetical to me, and the state seeks to undermine what amounts to a federal “program” of non-acceptance of its policy. I simply have trouble understanding how the failure to extend benefits to gay couples harms the state. To the extent that the state alleges that DOMA–which does not force the state to do anything that it does not want to do–interferes with the state’s policy, I think that the Supremacy Clause comes into play.
BTW, I found an interesting discussion of parens patriae here.
July 10, 2009, 8:37 amJ.R.L. says:
“It will be interesting to see if Republicans are really in favor of states’ rights.”
You say that as if Republicans favor states’ rights now.
July 10, 2009, 9:25 amKen Arromdee says:
Because no one claims a constitutional right to be forbidden to have an abortion.
But the reasoning is that it interferes with the state’s authority to regulate. So a state could claim it has a right to forbid its residents from having an abortion. (For that matter, a fetus (presumably by proxy) could claim a right to forbid others from aborting it, although that’s no longer an exact parallel.)
July 10, 2009, 9:27 amReaderY says:
The Utah experiencem Griswold v. Connecticut, and Loving v. Virginia all make clear that states’ rights to define marriage as they see fit is in fact limited. There is in fact a federal concept of marriage on which cases like Griswold v. Connecticut were based.
In addition, the federal government has an interest in protecting the integrity of programs like social security. Similar issues would arise if a state ruled that a person could marry a corporation, or a marriage could include 1000 people. Social security benefits, unlike Massechusetts marriages, are intended for purposes other than simply fostering the parties’ private happiness.
Moreover, Massechussetts is being grossly hypocritical. Many states have a business entity called a “domestic partnership”, yet Massechusetts does not require employers recognizing domestic partnership to recognize these entities as being valid domestic partnerships — it won’t give benefits to members of these entitities where one partner is a state employee, for example. If Massechussetts claims it has a right to limit its concept of domestic partnership to those which serve different purposes from other states’ definitions and that simply having the same name doesn’t make something the same thing, it can hardly complain when others take a similar position.
The Supreme Court has held that denying people the right to participate in same-sex business entities does not violate the Equal Protection Clause. In doing so, the Court specifically held that states have the same right to regulate in the domestic sphere as the federal government in its. Moreover, it accepted an argument that prohibiting businesses from operating in accordance with a gay lifestyle would tend to increase heterosexual employment opportunities, an argument which has been attacked of late as irrational when made in the domestic sphere, but which nonetheless is still good federal (if not good Massechusetts) law.
July 10, 2009, 9:35 amHannibal Lector says:
I found this whole discussion interesting and informative. I’m cynical enough to believe that the case will be decided not on its merits but on the predispositions regarding homosexual marriage and DOMA of the judges who finally decide the matter. If DOMA were to be gutted by a finding for plaintif a certain side-effect would be to reinvigorate attempts to limit every state’s right to allow homosexual marriages via a constitutional amendment.
July 10, 2009, 9:36 amtroll_dc2 says:
I’m a little dense this morning. Could you please give me the cites?
July 10, 2009, 9:38 amCornellian says:
it accepted an argument that prohibiting businesses from operating in accordance with a gay lifestyle
How exactly would a business “operate in accordance with a gay lifestyle” or for that matter, with a “straight lifestyle?” That makes no sense at all.
July 10, 2009, 9:53 amtroll_dc2 says:
I have requested the citation. When we get it, we will know. Right now, I am doubtful about the paragraph that I quoted. But I am confident that ReaderY knows more than you and I do.
July 10, 2009, 10:02 amget2djnow says:
@Randy R., Putting one into, and other anti-GOP’ers:
It’s a cute argument to say that pro-states rights people should be supporting MA action here, but that would be neglecting the point made by DC that:
A pro-states rights person, which you clearly were not, until you met this case, would say: when the number of state reaches the number required for a Constitutional Amendment, then the ‘yes’ states can be protected from the ‘no’ states. Until then the 6 piddling (in terms of population) states that advocate gay marriage are clearly allowed to do what they want, just not impose it on the rest of the states as Carpenter makes clear would happen.
In fact, if gay marriage advocates were honest with themselves and their lapdogs in the press and Congress and The One, they’d be asking why DOMA hasn’t yet been repealed!
David Jacobson
July 10, 2009, 10:23 amCleveland Heights, OH
Losantiville says:
Finally, we discover that it takes the Homintern to force Commies to come out in favor of the 10th Amendment. Will wonders never cease?
I expect that America’s Leading Queer Marriage Opponent will retaliate by invoking the Commerce Clause in defense of DOMA. After all, Queer Marriage must have some effect on interstate commerce.
July 10, 2009, 10:28 amshawn-non-anonymous says:
Why hasn’t the Federal government been worried about “neutrality” in the cases of first cousin marriage and the legal marriage of minors?
As an aside, Nevada divorces require residency which was a minimum of 6 months, last time I checked. (1990, when I applied to UNLV, to be exact.)
July 10, 2009, 10:36 amMatthew K says:
I would like to point out that the recognition of marriages by non-originating states is an essential part of modern life. Imagine a married couple traveling. Would you really want them to magically become single the moment they cross a state line? This would be absurd. Remember, marriage law is supposed to work, not satisfy silly theoretical arguments.
July 10, 2009, 10:49 amCornellian says:
In fact, if gay marriage advocates were honest with themselves and their lapdogs in the press and Congress and The One, they’d be asking why DOMA hasn’t yet been repealed!
If the President, Congress and media were all “lapdogs” on the issue, DOMA would have already been repealed.
July 10, 2009, 10:50 amShelbyC says:
Did states, before DOMA, have a broader power to define marriage than, say, foreign countries did? IOW, if a citizen was not a resident of a state, and married under the laws of a foreign country, would that citizen have been married for federal purposes?
July 10, 2009, 10:50 amCornellian says:
I would like to point out that the recognition of marriages by non-originating states is an essential part of modern life. Imagine a married couple traveling. Would you really want them to magically become single the moment they cross a state line?
Wouldn’t that happen now when a married couple who are first cousins cross the state line into a state where first cousin marriage is illegal? Same thing with married 16 years olds entering a state where the minimum age for marriage is 17?
July 10, 2009, 10:53 amRuss Davis says:
Just as there’s no such thing as “black” or “white” or “race” since scientifically all have the same skin color, only in differing amounts, having come from the same ancestors, Adam and Eve (scientifically shown at the “One Blood” online book at http://creationontheweb.com/content/view/4019/” rel=”nofollow”>One Blood, so too there’s no such thing as “gay” or the “homosex-” oxymoron fraud (homo=same, +sex=opposite by definition. See “The gay invention” at http://touchstonemag.com/archives/article.php?id=18-10-036-f ” rel=”nofollow”>The gay invention. This is all just pervert propaganda at which their pervert predecessor Hitler was very good, as seen at http://www.abidingtruth.com/pfrc/books/pinkswastika/html/the_pinkswastika_4th_edition_-_final.htm
“>The Pink Swastika
Misotheists will of course thumb their arrogant noses at this God-fearing creation-founded truth that underlay our great pre-Darwinian civilization he has destroyed with the help of most proudly evil fascist lawyers and judges by turning us into animals, but when standing before God in the Judgment, that tune will change, willingly or not
http://www.thewayofthemaster.com
Their deranged fascist pursuit of the deranged Naziesque pretense of thought crimes/hate crimes laws is strong evidence of their fascist forbears. As one of the great Russian writers said, when God is abandoned, ANYTHING is possible (i.e. the unimaginable Bolshevik evils they faced).
July 10, 2009, 10:54 amI wonder if God has handed us over in Romans 1 fashion to destruction as He did the Roman Empire for rejecting Him for their own depraved lusts. When one considers the endless blasphemies of our government (e.g. Harriet Reid’s raising the middle finger in God’s face by brining a priest of the false Hindu religion to officiate in the Senate), subsidizing the cold-blooded butchering of His babies in such numbers that would have made the Nazis balk, there’s nothing too evil for us to suffer we won’t more than deserve. May He bring us repentance whereby we may be enabled to turn from our countless evil lusts unto Him through The Only Savior, Jesus Christ.
http://www.dontwasteyourlife.com
troll_dc2 says:
I don’t know, but I suspect that the answer can be found in cases involving the Tax Code.
July 10, 2009, 10:56 amSoronel Haetir says:
Cornellian,
Most states would recognize such marriages. The exceptions would be marriage contrary to public policy of the state, which AFAIK in the hetero context is now limited mostly to polygamy.
Even without DOMA there would likely be an excellent chance that the public policy exception would apply in the states that have passed amendments limiting marriage.
July 10, 2009, 11:01 amDangerMouse says:
Liberals are such cowards. Obama and the Dems run the federal government. They could repeal DOMA today. Instead, we get this insulting charade of litigation where we’re supposed to pretend that the judges are going to impartially exercise their judgment, instead of ruling on the matter like the pseudo-politicans that they are. What a crock.
Libs could repeal DOMA tomorrow. Instead, it’s as if they have an interest in perpetuating a farce on everyone, and further entrenching the antidemocratic power of the legislative judges.
July 10, 2009, 11:01 amShelbyC says:
My understanding is that marriages valid elsewhere are valid even if they couldn’t happen under the laws of the state unless they violate the public policy of that state. So the 16 yo’s would be married, but a man and two women coming from Saudi Arabia might not be.
July 10, 2009, 11:01 amU.Va. Grad says:
*scans the OP for other Bluebooking errors to invoke the wrath of DC*
July 10, 2009, 11:01 amBN says:
Thanks a lot for taking the time to comment on this subject.
Re: South Dakota v. Dole
How is regulating marriage a “rational” exercise of the power of the Federal Government? How is the country’s general welfare helped by not allowing gay people to marry?
July 10, 2009, 11:08 amshawn-non-anonymous says:
ShelbyC:
IANAL.
My understanding is that traveling to marry in a non-resident state because your own state prohibits the marriage is sufficient cause for your state of residence to deny recognition of the marriage. For first cousins, that means becoming residents of a permissive state and making a life there. If they later move, the “full faith and credit” clause would protect their marriage in their new state in most circumstances. In all these cases, the Federal government recognizes the marriage. Only homosexual couples are singled out for different treatment here.
July 10, 2009, 11:20 amtroll_dc2 says:
DOMA does not “regulate marriage.” It sets up a standard that the federal government will recognize for its own purposes, such as administration of tax and immigration laws, and it authorizes states to refuse to recognize gay marriages contracted in other states.
I strongly oppose DOMA, but let’s be fair here. It easily fits within any legal concept of “rational” that I am aware of. It is possible both to think that something is bad and yet not unconstitutional, and I think that DOMA fits this standard.
July 10, 2009, 11:24 amCornellian says:
I wonder if God has handed us over in Romans 1 fashion to destruction as He did the Roman Empire for rejecting Him for their own depraved lusts.
I wonder if Russ has gone off his meds.
July 10, 2009, 11:24 amCornellian says:
Even without DOMA there would likely be an excellent chance that the public policy exception would apply in the states that have passed amendments limiting marriage.
I have always regarded s.2 of DOMA as moot for that reason. Nothing in FF&C requires a state to recognize same-sex marriages created in another state and DOMA s.2 doesn’t change that.
July 10, 2009, 11:26 amSteve2 says:
Is South Dakota v. Dole a precedent likely to be overturned?
July 10, 2009, 11:44 amSoronel Haetir says:
Given that the FFC clause indicates that Congress can set the effect of other state’s actions I would however think Congress has the power to mandate acceptance of out-of-state SSM if they wished to exercise it.
I wonder how much of the non-federalization of marriage actually boils down to the states having been in mostly agreement over the years so that no federal standard was required. There are some differences at the edges but they have been fairly minor and not a great inconvienence to other states to recognize.
It would have been interesting to see a case like LDS polygamy before state sponsored religion became taboo. That difference may well have been enough to prompt such a federalization before the 14th amendment.
July 10, 2009, 11:45 amCan't find a good name says:
Could the admins please delete the comment by “air jordan shoes” at 7.10.2009 4:55am? It is a spam link comment, not something on topic with the discussion or anything brought up anywhere near the discussion. Thanks.
July 10, 2009, 11:48 amBN says:
Thanks for the response.
Setting standards is regulation.
We will have to disagree about.
I think the more important question is why is preventing same sex marriage a benefit to the general welfare of the United States. From South Dakota v. Dole:
I have yet to hear a reason as to why the general welfare of the nation is improved because of DOMA.
July 10, 2009, 11:48 amtroll_dc2 says:
You’re playing with words. The federal government is administering its own laws. The standards that DOA sets are not binding on the states, as demonstrated by the states that have recognized gay marriage despite DOMA.
I don’t understand your concern about the general welfare. Congress decides what it is the general welfare and what is not. Just because you (and I) oppose DOMA does not mean that other people cannot think that it does not improve the general welfare. (I hope that the meaning of this sentence is clear despite the triple negative.)
South Dakota v. Dole is a Spending Clause case. DOMA is not. You are, to coin a fresh phrase, mixing apples and oranges.
More importantly, you seem to think that constitutionality is a function of your personal preferences. But Black, Douglas, and Brennan no longer are on the Supreme Court.
July 10, 2009, 12:08 pmDangerMouse says:
More importantly, you seem to think that constitutionality is a function of your personal preferences. But Black, Douglas, and Brennan no longer are on the Supreme Court.
Yet their legacy of judicial legislating is more alive than ever before among the libs. There’s a reason that this is being done via litigation rather than lobbying to repeal DOMA.
July 10, 2009, 12:13 pmOren says:
The State has no authority to regulate in such a fashion as to violate the rights of its citizens.
When you figure out how to cast the opposition to gay marriage as vindication of individual rights, let me know.
July 10, 2009, 12:15 pmtroll_dc2 says:
DangerMouse, there IS an effort to repeal DOMA via lobbying. That is a part of the gay community’s anger toward Obama. The underlying problem, of course, is that the makeup of the present Senate is not favorable to getting the legislation passed.
Any lawsuits seeking to invalidate DOMA will turn out, I am quite confident, to be found meritless.
Also, with regard to judicial legislating, the so-called conservative judges apparently learned a lot from the aforementioned justices.
July 10, 2009, 12:23 pmDangerMouse says:
Any lawsuits seeking to invalidate DOMA will turn out, I am quite confident, to be found meritless.
Yeah, ok. We’ll see about that.
July 10, 2009, 12:44 pmKen Arromdee says:
When you figure out how to cast the opposition to gay marriage as vindication of individual rights, let me know.
The argument I was responding to wasn’t about individual rights. It was about state rights–that the state has the right to regulate marriage and that the government can’t prevent it from doing so.
If this is really valid, it seems like the government also should be unable to prevent the states from regulating abortion.
July 10, 2009, 1:28 pmBN says:
The over 21 drinking law wasn’t binding on the states either. Was that a regulation? My answer would be yes.
Whether or not it was a regulation it was an attempt to get the states to do something the Federal government deemed to be beneficial to the general welfare of the country. According to South Dakota v. Dole that is one of the requirements the Federal Government must meet if it wants to use the Federal purse strings to affect the behavior of the states.
South Dakota v. Dole was about the legality of the Federal Gov’t not spending 5% of a state’s highway money if that state chose not to comply with the Federal drinking age standard. DOMA stipulates what the government will not spend money on if a states chooses to recognize gay marriage.
I will concede that the drinking age law had a much more direct penalty in it that does DOMA but they are both about spending.
I have yet to hear anyone argue how DOMA improves the general welfare of the country.
In South Dakota V. Dole SCOTUS clearly established a general welfare standard. If that standard is so broad to include whatever ‘Congress decides’ it is then it is no standard at all.
Again, thanks for the response.
July 10, 2009, 1:36 pmbadlaw says:
Putting Two and Two…
Exactly how are economic incentives for a romantic relationship a “fundamental human right”? How is federal recognition of a romantic relationship a fundamental human right? What are you basing this on?
July 10, 2009, 1:46 pmshawn-non-anonymous says:
Findlaw copy of LOVING v. VIRGINIA, 388 U.S. 1 (1967):
Whether one wants to argue the differences between “fundamental human right” and “basic civil rights of man” or not, this seems close enough to satisfy the point. I suppose DOMA could be modified to have the Federal government recognize the marriage but provide no “economic incentives”. Is the right not to testify against your spouse an “economic incentive”?
July 10, 2009, 1:55 pmReal American says:
so, if Nevada passes a law that says all income must be taxed at the same rate, it can sue the IRS over its progressive tax regime as not treating all income the same? I doubt it.
July 10, 2009, 2:07 pmSatori says:
Abortion is an individual, constitutional right. It isn’t hte gov’t that is preventing the state from regulating abortion, it is the Constitution (and even then it does not prevent all possible regulations). Your analysis is off.
July 10, 2009, 2:10 pmshawn-non-anonymous says:
Nevada taxes all personal income at the same rate already–$0.
July 10, 2009, 2:11 pmSatori says:
The Federal Gov’t has the power to tax incomes, so I fail to see how that is an analogous situtation.
July 10, 2009, 2:12 pmAllan Walstad says:
1. As I’ve pointed out here in the past, the question is not whether same sex couples are “free to marry,” it’s whether they get to legally re-define a word, marriage, that already has a well-defined traditional meaning in this culture, involving one man and one woman. If SSM advocates generally stood up for the “freedom of multiple-partners to marry,” their position would shed a fairly heavy baggage of hypocrisy, but they would still be engaging in an in-your-face attempt to re-define a word that has deep meaning for a great many people, in a way that those many people find inappropriate and objectionable. (I’m not among them, by the way.)
2. A lot of the problems and complications Massachusetts is complaining about appear to stem from patently unconstitutional federal activity and programs (Medicare, Social Security…) that have been given false stamps of approval by the group of political appointees known as the Supreme Court.
3. Again, as I’ve pointed out before, the real solution is for the government to get out of the business of defining marriage, a institution with religious roots. Let the government recognize contractual domestic partnerships among consenting adults, whether heterosexual or same-sex or multiple-partner, and just leave people free to call their relationships whatever they want (“marriage,” “partnership…” ) in their personal affairs. Then the issue really would be freedom.
July 10, 2009, 2:47 pmbadlaw says:
Allan Walstad
While I’d agree with you to an extent, the sentiment that the government should basically take its ball and go home doesn’t engage the reasons why we have marital incentives in the first place. Even if the government stopped recognizing marriage, that would cause a massive overhaul of an entire area of law and legal precedence. And, it ducks out of making the argument as to if, and why, same-sex couples and polygamous couples are the same (beyond general notions of love and companionship) as heterosexual monogamous relationships.
July 10, 2009, 2:55 pmTulkinghorn says:
I don’t know about your state, but here in Massachusetts the civil government has had exclusive control over marriage since the first shod foot stepped onto Plymouth Rock. Marriage has never been anything but a civil institution, and if a priest wants to marry someone they need to do so under the authority of the the Commonwealth.
Few things are as laughable and worthy of scorn as Methodists, like our prior President, declaring marriage to be a sacrament.
July 10, 2009, 2:58 pmaces says:
Not only that, but it would be awkward for Obama to push hard for DOMA’s repeal, given that his own Vice-President voted for its enactment.
July 10, 2009, 3:02 pmpluribus says:
Allan Walstad
This argument doesn’t pass the get-real test. The government would never, ever forego the time-honored ritual of granting benefits, privileges, deductions, credits, exclusions, and sundry entitlements designed to promote and support the “sacred” institution of marriage. It has been shown that there are currently a thousand or more such goodies in the law, and repealing them wholesale would provoke a response that would make Fort Sumter look like a garden party. It isn’t going to happen, and to argue that something that isn’t going to happen will somehow “solve” the controversy over SSM is disingenous. If you can suggest a solution that has a snowball’s chance, please do so.
July 10, 2009, 3:45 pmShelbyC says:
Don’t we use the word marriage in our culture to refer to polygamous marriages in other cultures all the time?
July 10, 2009, 3:47 pmPutting Two and Two... says:
The roots of marriage are in primate behavior. At some point, once we needed to explain things to ourselves, we came up with religions and some religions decided to make up ceremonies to cover basic human behavior. Some societies, especially ones with multiple cultural influences, created civil marriage.
In the West, our civil marriage laws come from Roman civil law. Christianity didn’t make marriage a sacrament until several hundred years after the conversion of the Empire and even after they did, they continued to record and process civil marriages between members of different faiths (only during those periods when they weren’t driving out or killing members of different faiths).
Religion doesn’t own marriage. It never has.
July 10, 2009, 4:14 pmPutting Two and Two... says:
get2djnow
I don’t see any connection between expecting consistency from states-rights advocates and the possibility of a federal constitutional amendment defining marriage. Sure, there’s a political risk, but any other kind? No.
I, in fact, said quite clearly I thought, that I am not a states-rights person, and I am still not, regardless of this case. But if YOU are, that’s a pretty odd description of the states-rights case. I thought the states-rights position is that a state is free to do what it wants in certain areas and the federal government must acknowledge its authority and recognize its legitimate actions.
July 10, 2009, 4:24 pmPutting Two and Two... says:
badlaw
Thanks to shawn-non-anonymous for answering this question. If you need more explanations, just Google marriage rights and filter out any results mentioning SSM or “gay marriage”. You’ll find all sorts of stuff extolling marriage and listing the many fine reasons for its existence and its fundamental importance to human beings. I’ll warn you, though, some of it gets awfully flowery.
It’s odd, everyone usually grasps the whole “life, liberty and pursuit of happiness” fundamental importance of marriage…
July 10, 2009, 4:33 pmMikeS says:
The roots of marriage are in primate behavior.
Roman Catholic or Anglican primates? It makes a big difference.
July 10, 2009, 6:00 pmChrisTS says:
I’m still working on two ‘ideas’:
1) From someone, that there is such a thing as a same-sex business enterprise. What does that mean?
2) Unmedicated Russ’s claim that ‘sex = opposite” by definition. Does that mean we are all hermaphrodites … except the ‘real’ hermaphrodites who, by opposition, would be …?
July 10, 2009, 6:54 pmReaderY says:
troll_dc2
The cite is Atlanta Motel, 379 U.S. 249 (1964).
The U.S. had passed a of series of laws, known as a “civil rights” laws, prohibiting people with a vocational sexual preference or orientation from being owners or supervisors of businesses employing 15 or more people or which serve customers in interstate commerce. The Court noted that the law involved was a morals law similar to laws against gambling and prostitution; held that the federal government has a right to legislate morality in its fear similar to the right states have in theirs, and held that Congress could find that the expression of sexual preference (among other types) has a disruptive effect on commerce, on the grounds that the participation of gay people in interstate commerce makes it harder for straight people to find heterosexually-oriented commercial partners and that this inhibits heterosexual commerce.
Translated into today’s language, that’s what Heart of Atlanta held. Perhaps Congress and the Court were actually being irrational. What is “discrimination” if not “preference”?
July 10, 2009, 6:54 pmReaderY says:
sorry, that’s “legislate morality in its area”
July 10, 2009, 6:55 pmReaderY says:
similarly, “participation of gay people” ==> “participation of vocationally gay people”
July 10, 2009, 6:56 pmPutting Two and Two... says:
But what about those of us who haven’t yet reached professional status? I’m still just a practicing homosexual.
July 10, 2009, 7:31 pmtroll_dc2 says:
This is the passage that I questioned near the beginning of this thread:
In reponse to my request for the appropriate citation, I was offered Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964). This decision upheld the public-accommodations provision of the 1964 Civil Rights Act, which not only does not forbid discrimination on the basis of sexual orientation, it makes no reference at all to this subject. Yet the explanation given to support this citation is:
This “explanation” is unbelievable. Needless to say, ReaderY’s credibility has taken a hit.
July 10, 2009, 7:41 pmCornellian says:
held that the federal government has a right to legislate morality in its fear similar to the right states have in theirs
Freudian slip FTW!
July 10, 2009, 10:23 pmRandy R. says:
“I have yet to hear a reason as to why the general welfare of the nation is improved because of DOMA.”
Furthermore, I have yet to see any evidence that marriage has been defended since it’s enactment. Even Gov. Sanford has not claimed that DOMA has persuaded his wife to keep him.
But I’m game — anyone have any anecdotes to show us us how marriage has been saved because of DOMA?
July 10, 2009, 10:23 pmOwen H. says:
By this argument, the Federal government has no authority to ban slavery within the states.
Fact is, Roe v. Wade does in fact allow the states to regulate abortion; as long as they do not violate anyone Constitutional rights in doing do so.
July 10, 2009, 11:39 pmhazemyth says:
ReaderY’s original comment confused me, too, troll_dc2.
I think he means that a man who wants to hire only men for his business is ‘vocationally homosexual’ and analogous to a man who loves/desires only men (‘romantically/sexually homosexual’?). LOL
He wasn’t, as you suggest, making an unsupported citation regarding public accommodations law and sexual orientation. He’s playing obtuse about what’s meant by ‘sexual orientation’ in order to conflate workplace gender-discrimination with homosexuality.
July 11, 2009, 12:05 amRandy R. says:
Reader Y: “held that Congress could find that the expression of sexual preference (among other types) has a disruptive effect on commerce, on the grounds that the participation of gay people in interstate commerce makes it harder for straight people to find heterosexually-oriented commercial partners and that this inhibits heterosexual commerce.”
It’s worse than that, ReaderY. Heterosexually preferred people will find it all but impossible to find similarly preferred people in the fields of fashion, hair styling, florists, wedding planners, flight attendants and church organists. Commerce from people like you will grind to a halt when your wives can’t get a decent ‘do, and you can’t fly in any airplane. In fact, you will just have to plan your own wedding, which means that you will have to deal with bridezilla, and not us.
That’s probably a good thing.
July 11, 2009, 12:10 ambadlaw says:
shawn-non-anonymous
Putting Two and Two…
The problem is, Loving operated under the assumption that marriage was intrinsically heterosexual. In the case, the freedom to be married was a crime, though it was legal in most places, as opposed to now, where it’s legal in few places, but is in no way an arrestable office.
They recognized the fundamental freedom to marry, because the case precluded it. They didn’t find that the state is compelled by the constitution to give hand-outs based on marital status.
July 11, 2009, 4:20 amHewart says:
Allan Walstad:
As I’ve pointed out here in the past, the question is not whether same sex couples are “free to marry,” it’s whether they get to legally re-define a word, marriage, that already has a well-defined traditional meaning in this culture, involving one man and one woman.
Until pretty recently, our culture’s well-defined traditional meaning of marriage meant “only between members of the same race.” Yet we legally re-defined the meaning of “marriage” to allow for marriage between different races, because to fail to do so would be to continue to deprive people of their inalienable right to marry the consenting adult of their choice.
This seems to be fairly analogous to the SSM issue.
July 11, 2009, 6:40 amSoronel Haetir says:
Except even in those cases they were still referred to as marriages. They were simply contrary to law and punishable by the state. They weren’t automatically meaningless upon moving to a state with such laws.
We don’t throw polygamists in prison now either, but such marriages aren’t recognized upon coming to the US. I find that a much more analagous example.
July 11, 2009, 8:31 amtroll_dc2 says:
That’s a very good analysis. You can see why I did not go into the English-literature-analysis business. Still, what ReaderY wrote was indefensible on a blog like this.
July 11, 2009, 1:17 pmJohn D says:
Badlaw,
If, as you contend,
then it did so tacitly.
The Loving decision is quite short: no pages of case background to wade through, so it’s an easy read. At no point does Justice Warren allude to marriage as a heterosexual institution.
Rather, the bulk of the decision was based on Virginia’s rejected view that its marriage statutes were not racially discriminatory, since they applied to people of all ethnic groups equally.
July 11, 2009, 1:35 pmJohn Pack Lambert says:
The fact of the matter is that DOMA is built around the long-standing reasons for only recognizing opposite sex reason, its close connection to child bearing and the positive benefits of keeping child rearing and marriage connected are the most obvious.
July 11, 2009, 5:49 pmUnfortunantly with Obama and other non-believers in marriage in control I fear this case will have a problematic outcome based on a lack of good defense. The child rearing and marriage link will need to be defended by someone who is willing to dig out the truth of what Scandinavian statistics tell us.
On another matter, while it does appear federal programs can not be limited based on race, gender is a much different matter. The Equal Rights Admendment was defeated, and so the federal government can make decisions based on sex, such as requiring marriage to involve two partners one of each sex. An even bigger example that comes to mind is WIC, which limits its benefits to Women, Infants and children. Adult males are excluded from the benefits of this program based on sex. So Mr. Carpenter overstates the factors that are at play.
Lastly, to John D., you have not thought enough about Loving. They did not as much reject the “applies to all ethnic groups equally” argument on the grounds that it was a poor argument but on the grounds that it was a false argument. They specifically cite the different rules for whites marrying blacks and Native Americans, and that only whites are fobbiden to marry people of another race to show that the equal application claim did not stand up if the law was analysed.
An amazing thing in the United States is that people still somehow get away with the binary racial rhetoric. The census reinforces it with the over-reporting of whites by reclassifying people who put down such things as “Arab” and “Jew” as white. Race is neither binary nor evident. China has 60 ethnic groups, that can be thought of as similar to our races, and this is not including any groups from Europe, Jews, Africans, Native Amerians or Arabs. Many people are multi-racial, and no racial rules can easily survive any breaking of them, so. There is also no non-discriminatory reason for laws against inter-racial marriage. There are so many differences that there in fact is no comparison at all.
John D says:
John Pack Lambert,
The idea that marriage has a
is, contrary to your claim, not at all obvious.
There is a long tradition of marriage rights extended to those who cannot or will not procreate.
Marriage has at no time in U.S. history (nor in any other time or place that I can think of) come with a requirement for procreation. There are many couples who have decided not to have children; there are no challenged to the legal status of their marriages over this.
It has always been legal for the elderly to marry. Surely when a pair of septuagenarians marry, we do not expect them to start procreating.
Further, as the unmarried pregnancy statistics show, the unmarried can procreate.
There has never been a connection between child bearing and marriage. We may have a preference that those who wish to procreate actually marry before they do so, but they are under no legal obligation.
Those who have married are under no legal obligation to procreate, no matter how often their parents hound them for grandchildren.
As this is not being applied to opposite-sex couples, it cannot be applied to same-sex couples.
Marriage is linked to procreation only in the fantasies of those opposed to same-sex marriage.
July 12, 2009, 12:57 amscattergood says:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival
This fascination with Loving in regards to SSM is pretty much just intellectual fraud, plain and simple. The heterocentrality of the the ‘basic civil right’ is front and center. Existence and survival are intrinsic in the right to marriage according to Loving. SSM, for all the logical twists and turns to justify it, is not fundamental to our very existence and survial.
July 13, 2009, 12:43 pmTom G says:
And how does attacking same-sex families and depriving them of civil rights help any of these goals?
July 14, 2009, 4:07 am