5 to 4 with three different dissenting opinions!

http://www.nytimes.com/interactive/2013/06/26/us/annotated-supreme-court-decision-on-doma.html?hp&_r=0

Told you guys it was unconstitutional. Welcome to the 21st Century.

DOMA was declared unconstitutional but what was left open was whether states could ban gay marriage. The court ducked the question with regard to Proposition 8 by declaring petitioners lacked standing (interestingly Kennedy dissented from that opinion)The strong language used by Kennedy (with used of words like "stigma" and "humiliation" and "separate status" to describe the status of gay couples) along with the emphasis on the denial of federal benefits (same arguments could be used with regard to state laws) may seem to indicate a equal protection violation if a state does not allow gay marriage, though Kennedy placed emphasis no the traditional power of a state to define marriage. I'm not sure that the traditional power of a state to define marriage could override an equal protection violation, though.

I think again you're seeing a deft hand from Roberts (the writer of the Prop 8 decision) in not wanting the court to have a 5-4 decision on such a huge issue as to whether banning gay marriage would be unconstitutional. Reminds me of the decision in the ACA case.

Unconstitutional? Only because the gay rights activists refuse to accept what has been adopted in the UK (Gay marriage is illegal in the UK yet here we have an "I told you so" from someone there). I myself am fully for equal RIGHTS and protections, but I am against gay "marriage" it's simply a term I'm kind of hung up on and I seem to feel the same as my friends in the UK where civil partnerships do offer all those equal rights. Gays should have the same rights available and if we are forced to pick between equal rights and a term, I will side with the rights. But why oh why oh why must gays refuse such equal rights, why must they also feel the need for the same term? If it were about rights, this would have been settled years and years ago! Alas, make no mistake, this has nothing to do with rights!

I read Kennedy's DOMA opinion and it was awful. First off, his argument for standing of the parties was pathetic. He basically just changed 220+ years of judicial precedence. He basically said the Court can take on an appeal if it wants to give an opinion of the law in question even if there was no controversy in fact. This is contrary to the entire judicial history of this nation.

Then he spends 7 pages discussing the traditional, historical power of the state in regards to Domestic Relations, which essentially is a Federalism argument, and then says but this isn't a Federalism issue but rather an equal protection issue.

However, it is a 5th Amendment equal protection issue which means it is only in states that have decided to grant same sex marriage. Because the Stated decided to grant the right, the Federal Government couldn't treat them differently. However, because States determine Domestic Relations law, they can decide to limit marriage to the traditional definition if they so desire because there is no Constitutional right to same sex marriage.

So basically it isn't an equal protection issue but rather a Federalism decision. But wait, that is not what Kennedy said.

Everybody should read Scalia's dissent. He very effectively and efficiently rips Kennedy's opinion apart showing logical flaws in Kennedy's opinion.

Tom, our civil partnerships are much closer to marriage in all but name, but there are some differences. However, a government bill is currently going through Parliament to enable gay marriage.

DOMA did not just bar gay marriage, it denied federal rights to couples in a civil partnership. And it is not a case of US gay 'activists' accepting what we in the UK have - your country does not have it to be accepted, and it was not really on offer. It still isn't nationwide.

Besides, even if the UK were behind as well, does not bar me from having an opinion.

GMTom wrote:I myself am fully for equal RIGHTS and protections, but I am against gay "marriage"

As Dan suggests, this comment is a contradiction in terms. There are rights and privileges granted to spouses that are not granted to any others. If I'm not mistaken, the plaintiff is a woman who had to pay an estate tax on the death of her same-sex spouse, but had her spouse been of the opposite sex no tax is due. If you're for equal rights and protection, then I can't see how you can be against gay marriage.

geojanes wrote:

GMTom wrote:I myself am fully for equal RIGHTS and protections, but I am against gay "marriage"

As Dan suggests, this comment is a contradiction in terms. There are rights and privileges granted to spouses that are not granted to any others. If I'm not mistaken, the plaintiff is a woman who had to pay an estate tax on the death of her same-sex spouse, but had her spouse been of the opposite sex no tax is due. If you're for equal rights and protection, then I can't see how you can be against gay marriage.

There are over 1,000 laws that are impacted by this decision, most involving the tax code. There are also immigration implications.

I'll defer to ARJ on the legalities, but overall I think it's a great step forward, and a very fast one considering that the Mass supreme court ruling was just 9 years ago. That is very rapid social change.

again, I am hung up only on the term "marriage" and I realize it's probably dumb! I am for all things being equal aside from the name, if we were to allow gays to have some sort of civil partnership that granted ALL marriage rights (same exact thing but different name) I'm cool with that.
I know this had been discussed but gay rights activists wanted nothing to do with such equality, they wanted the equality AND the name. One step at a time seems the best and easiest route but noooooooo, not good enough!?

So my personal position is one of complete equality but not granting the name "marriage" silly i know, but there are MANY just like me!

archduke

Everybody should read Scalia's dissent.

Maybe read it with a dose of critical analysis, too?

scalia

It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

salon

The case could be made that this is sort of the only honest Originalist argument — there is nothing in the Constitution granting the Supreme Court the authority to determine the constitutionality of duly passed legislation, after all — but obviously this argument rather glaringly contradicts every single instance of Scalia voting to strike down a law. Indeed, it contradicts a decision the Supreme Court announced yesterday, in which the conservatives decided that a portion of the Voting Rights Act that they didn’t care for was unconstitutional because they didn’t care for it. But if Scalia wishes to recuse himself from all future cases involving constitutional questions, now that he has determined that Marbury v. Madison was improperly decided, I am not inclined to stop him.

scalia

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

salon

The Defense of Marriage Act sounds so harmless when you put it that way! All it did was “codify an aspect of marriage that had been unquestioned in our society for most of its existence.” The actual lives of gay people — the specific rights and benefits denied them by DOMA and related legislation — never enter into Scalia’s thinking, at all. What matters most is the hurt feelings of social conservatives, who have been accused of malice against homosexuals.

http://www.salon.com/2013/06/26/antonin ... nostalgia/

the latest polls show support for gay marriage at 55% in the US....
As people get used to having legally wed gay couples in their midst, it will climb to two thirds rapidly. In a few years, the last resistance to acceptance in the whole country will crumble. Scalia's dissent will endure as a hall mark of the last vestiges of ill reasoned dissent. Not some judicial pearls .
(Notwithstanding the criticism of Scalia, I'd agree that the idea that the majority opinion wasn't brilliant clarity .... is true.)

GMTom wrote:So my personal position is one of complete equality but not granting the name "marriage" silly i know, but there are MANY just like me!

But you do realise that DOMA did not just bar the use of the name, it also ensured that civil/domestic partnerhips were also very much unequal?

And while we do (due to sheer repetition if nothing else) acknowledge your hangup, and we may well accept that it is shared by many, do you think that having a 'hangup' is sufficient to put in place a federal ban on something? People did (and unfortunately some still do) have a hangup about mixed race marriages, but that is not an argument that we allow to stand up to the decision in Loving.

By the way, GMTom, there is another important differemce between DOMA and UK law. UK law merely does not allow for gay marriage (which will probably soon change), while US law until.yesterday expicitly outlawed it and placed restrictions on same sex partnerships.

but i never supported DOMA, you seem to think I did? I simply want equal rights but want to keep my terminology, terminology that has been with us forever. Silly, I know, but lets say a father loses his wife during child birth, this man raises his baby and assumes all the motherly duties, he is still a father and not a mother. Terminology only but one that seems to mean a lot to me.
For me, I'm on the side of gay rights (I mentioned my lesbian neighbors here before and I think these women are wonderful neighbors and friends, I want them to enjoy all equality!) I'm just hung up over terminology only and I realize a different term was never an option, that would have been so much easier and this issue would have been a non-issue long ago. We would almost certainly have gone the route of the UK, equal rights followed by acceptance followed by granting even the term marriage after we "got used to the idea" That just seems to make so much sense, but no, that was never an option!?

Washington State had the opportunity to have a full rights of marriage, but calling it "civil partnerships. RickyP AND Danivon both said that was not good enough, as the separate terms could be interpreted as not being equal even though the rights were the same.

I never liked DOMA, but said since Clinton signed it; it was law, and should be revoked legislatively. It was cowardice to not do anything about it, and let the Supreme Court deal with it.

GMTom wrote:but i never supported DOMA, you seem to think I did? I simply want equal rights but want to keep my terminology, terminology that has been with us forever. Silly, I know, but lets say a father loses his wife during child birth, this man raises his baby and assumes all the motherly duties, he is still a father and not a mother. Terminology only but one that seems to mean a lot to me.
For me, I'm on the side of gay rights (I mentioned my lesbian neighbors here before and I think these women are wonderful neighbors and friends, I want them to enjoy all equality!) I'm just hung up over terminology only and I realize a different term was never an option, that would have been so much easier and this issue would have been a non-issue long ago. We would almost certainly have gone the route of the UK, equal rights followed by acceptance followed by granting even the term marriage after we "got used to the idea" That just seems to make so much sense, but no, that was never an option!?

It seems to me that was never an option primarily because of social conservatives, and not because of social liberals.