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’s Article I powers, and runs afoul of the Constitution’s principles of federalism" by creating an extensive federal regulatory scheme in a field ("domestic relations") reserved exclusively to the states. Complaint at 22. That, says Massachusetts, interferes with a state's traditional authority to define marriage as it sees fit.
The second claim is that Section 3 "violates the Spending Clause" because it (a) induces the state to violate the Equal Protection Clause and because (b) "there is no nexus between discriminating against individuals in same-sex marriages and the purposes advanced by" specified federal programs. Complaint at 23-24.
The lawsuit is different from other pending challenges to Section 3, see here and here, because it's brought by a state, not gay couples, and because the core issue is federalism, not individual rights.
As a policy matter, the Massachusetts lawsuit is a compelling challenge to DOMA. The Complaint offers some very interesting examples of ways in which Section 3 complicates a state's recognition of same-sex marriages and withholds important benefits from gay families. These range from large and important federal deprivations, arising from programs like Social Security and Medicaid, to obscure but poignant ones.
In the latter category, for example, falls federal funding for state-run veterans cemeteries, where both vets and their spouses are eligible to be buried. Massachusetts was told by the Veterans Administration that it would lose federal money for upkeep of a cemetery if it allowed the same-sex spouse of a vet to be buried there. Complaint at 20-21. A six-page addendum specifies some of the more than 1,000 ways that federal law confers entitlements or imposes obligations on married couples — all of which are limited to opposite-sex couples under Section 3.
Moreover, again as a policy matter, the Massachusetts lawsuit convincingly sketches several ways that Section 3 enlarges federal authority and undermines state authority in an area of traditional state control. Section 3 complicates, and imposes identifiable costs upon, a state's recognition of its own citizens' same-sex marriages. The state, in essence, must keep separate books for same- and opposite-sex marriages where eligibility for federal benefits is concerned. And, if it wants same-sex couples to have the same benefits available to opposite-sex couples, it must make up the difference out of its own revenues. Section 3 is a departure from the tradition of federal reliance on the states' definition of marriage, as Massachuestts says. There is a genuine concern about state authority here. Overall, these policy arguments are a strong rebuttal to the Obama DOJ's view that federal "neutrality" justifies Section 3 because otherwise non-SSM states will be forced to subsidize SSM in places like Massachusetts.
But I am less persuaded that these concerns rise to constitutional dimensions, at least under existing precedents. For all the harm it does, DOMA does not forbid a state to define marriage as it sees fit. DOMA does not forbid a state to provide equal marital benefits and privileges to same-sex couples under its own laws and programs. At most, it makes a state's recognition of same-sex marriages more cumbersome and costly than it would be if the federal government continued to defer to the state definition. This could, at least in theory, though probably not in fact, discourage a state from trying same-sex marriage.
All of Massachusetts' examples of federal "imposition" of unprecedented costs and regulation are in fact uses of Congress's Spending power. As the Court understands that power, in South Dakota v. Dole, Congress can spend in areas it could not directly regulate. Congress is free to dangle monetary carrots or brandish financial sticks within very broad limits, even in areas historically left to state power. The connection between a condition on the funds and the spending program itself need only be "rational." In the Wonderland of Constitution-speak, a law can be crazy without being irrational.
Massachusetts also appears to rely on a case called New York v. United States to argue that Congress is "commandeering" it to administer a discriminatory federal program. But there's nothing unusual about Congress's decision to set up a federal benefits program and then define the limits of eligibility. A state might want the retirement age to be 55, but Congress can make it 62 or 65 or 105. A state might want to make the middle class eligible for assistance in obtaining health benefits, but Congress can limit federal eligibility to poor people — as it defines "poor." All of these things might increase a state's administrative costs, discourage experimentation, and be terribly unfair to people left out. But that doesn't make them unconstitutional.
What Congress can't do, to be sure, is to limit eligibility in a way that violates constitutional rights. It couldn't make Medicaid available only to whites. Congress also can't try to induce a state to violate individual constitutional rights. It couldn't deny Medicaid money to states that permit abortion. Parts of Massachusetts' Complaint do, in fact, argue that denying marriage to same-sex couples would violate equal protection principles. That's the implication of the state's claim that DOMA forces it into either facilitating the federal government's marriage discrimination or losing federal aid.
In that respect, Massachusetts' lawsuit is a cousin to the existing DOMA challenges. 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.
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.
DC: Good catch.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Why couldn't this reasoning be used to overturn Roe vs. Wade?
Because we don't have honest courts.
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.
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.
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.
This might make the perfect private plaintiff.
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.
You say that as if Republicans favor states' rights now.
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.)
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.
I'm a little dense this morning. Could you please give me the cites?
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.
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.
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
Cleveland Heights, OH
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.
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.)
If the President, Congress and media were all "lapdogs" on the issue, DOMA would have already been repealed.
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?
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
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).
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. 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.
www.dontwasteyourlife.com
I don't know, but I suspect that the answer can be found in cases involving the Tax Code.
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.
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.
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.
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?
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.
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.
I wonder if Russ has gone off his meds.
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.
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.
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.
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.
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.
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.
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.
Yeah, ok. We'll see about that.
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.
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.
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?
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"?
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.
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.
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.
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.
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.
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.
Don't we use the word marriage in our culture to refer to polygamous marriages in other cultures all the time?
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.
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.
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...
Roman Catholic or Anglican primates? It makes a big difference.
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 ...?
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"?
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.
Freudian slip FTW!
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?
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.
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.
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.
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.
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.
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.
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.
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.
Unfortunantly 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.
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.
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.
And how does attacking same-sex families and depriving them of civil rights help any of these goals?
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