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News & ArtsThursday, October 18, 2012
LGBTQITSLFA Another Federal Appeals Court Declares DOMA Unconstitutional
Posted by Dan Savage on Thu, Oct 18, 2012 at 9:31 AM
ACLU:
A federal appeals court ruled today that the so-called “Defense of Marriage Act” (DOMA) unconstitutionally discriminates against married same-sex couples. In striking down DOMA, the court held that government discrimination against lesbians and gay men now is assumed to be unconstitutional and that DOMA’s defenders could not offer any good reason for treating married same-sex couples differently from all other married couples. This is the first federal appeals court decision to decide that government discrimination against gay people gets a more exacting level of judicial review, known as “heightened scrutiny.” The law had been challenged by Edith “Edie” Windsor, who sued the federal government for failing to recognize her marriage to her pa rtner Thea Spyer, after Spyer’s death in 2009. Windsor and Spyer, who were a couple for 44 years, were married in Canada in 2007, and were considered married by their home state of New York.
Full text of the decision here—and it's worth a read. The justices demolish every argument the haters make against recognizing same-sex marriage, from homosexuals being able to change to homosexuality being a mutable characteristic to homosexuals being too political powerful to rely on the courts for protection. Go read it.
UPDATE: The judge who wrote the decision, reports Think Progress, is a severe conservative.
2
Ooooh, now let's wait for the real fun. The NOM response.
"Look straight people! They are attacking us again! They might as well be walking into your home and shooting your children. That's what this court ruling has done. It's allowing gay people to just shoot your children because you've become complacent."
Anyone who disagrees with the previous paragraph is also a anti-christian bigot who hates free speech. Free Speech means agreeing with everything I say, right?
"Look straight people! They are attacking us again! They might as well be walking into your home and shooting your children. That's what this court ruling has done. It's allowing gay people to just shoot your children because you've become complacent."
Anyone who disagrees with the previous paragraph is also a anti-christian bigot who hates free speech. Free Speech means agreeing with everything I say, right?
3
So happy - time for another ACLU donation! And to think, only yesterday the appeals court ruled our little phone book ban unconstitutional too. I'll happily help find another solution to the phone book problem in return for justice for all of us Edie's sued on behalf of.
4
well.
good thing Mitt will be elected in a few weeks.
then the US Constitution will be amended and we can get these pesky judges out of our business.....
good thing Mitt will be elected in a few weeks.
then the US Constitution will be amended and we can get these pesky judges out of our business.....
8
so my wife in canada who's canadian can be my wife in the usa or do we have to wait for this thing to get picked up by the Supremes?
10
@8, probably the latter. Although the USSC may not grant a writ, and let the lower court ruling stand.
11
"But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status . . . . A state may enforce and dissolve a couple's marriage, but it cannot sanctify or bless it. For that, the pair must go next door."
12
The important takeaway - this only strikes section three. C.J. Jacobs very clearly points out that marriage definition is up to the states, and that it's up to the feds to recognize those definitions. ie: it doesn't strike down laws banning gay marriage.
He does criticize them in section V (see @11), but this opinion actually affirms a State's right to ban gay marriage.
He does criticize them in section V (see @11), but this opinion actually affirms a State's right to ban gay marriage.
13
#12 - That's true, technically, but wasn't the lawsuit specifically challenging section 3? Is it common (or even possible) for justices to broadly apply their judgements to statutes not in the suit?
14
@13 - You are absolutely correct. But the language in the opinion is actually quite conservative on the whole, and that is important when being used for appellate purposes revolving around the constitutionality of anti-equality laws in general.
I haven't read the 1st Circuit opinion, so I don't know how much that relies on State's Rights, but this one is adamant that it is up to the states to define marriage, which offers arguments for opponents in cases seeking to overturn state definitions. A classic example being Andersen v. King County.
Ultimately, it really appears that the trek toward full equality nationwide is going to be even longer. This and the CoA 1 appeal will, in theory, force the Federal Government to recognize State definitions of marriage (ie: gay marriage, marriage between minors as allowed by states, marriage between what level of cousins as allowed by states).
Perry v. Brown will disallow states that already allow gay marriage from taking those rights away (assuming it goes the way of the gays).
I think then it will be up to a couple to get married in Iowa, and move to a state that has a state constitutional ban, and challenge that based on laws/precedents requiring states to recognize marriages from other states.
How to force states to perform homo marriage - I have no idea. But the lack of solid reliance on Loving v. Virginia as precedent to overturn state laws banning gay marriage pre-allowing gay marriage is sad.
Or the SCOTUS could take it the extra step, and just do that.
We'll see.
I haven't read the 1st Circuit opinion, so I don't know how much that relies on State's Rights, but this one is adamant that it is up to the states to define marriage, which offers arguments for opponents in cases seeking to overturn state definitions. A classic example being Andersen v. King County.
Ultimately, it really appears that the trek toward full equality nationwide is going to be even longer. This and the CoA 1 appeal will, in theory, force the Federal Government to recognize State definitions of marriage (ie: gay marriage, marriage between minors as allowed by states, marriage between what level of cousins as allowed by states).
Perry v. Brown will disallow states that already allow gay marriage from taking those rights away (assuming it goes the way of the gays).
I think then it will be up to a couple to get married in Iowa, and move to a state that has a state constitutional ban, and challenge that based on laws/precedents requiring states to recognize marriages from other states.
How to force states to perform homo marriage - I have no idea. But the lack of solid reliance on Loving v. Virginia as precedent to overturn state laws banning gay marriage pre-allowing gay marriage is sad.
Or the SCOTUS could take it the extra step, and just do that.
We'll see.
15
The term "severe conservative" is an oxymoron. One cannot be "conservative" and at the same time, extreme or "severe".
A TRUE conservative will always strike down laws that infringe on people's personal liberty. Conservative = less government interference in people's personal lives.
This ruling should not come as a surprise, nor should a conservative SCOTUS ruling against DOMA. It's what being conservative is truly about.
A TRUE conservative will always strike down laws that infringe on people's personal liberty. Conservative = less government interference in people's personal lives.
This ruling should not come as a surprise, nor should a conservative SCOTUS ruling against DOMA. It's what being conservative is truly about.
16
Real conservatives are like Scots. They party hard, save like crazy, and think all the morons who call themselves conservatives in the US are high on crack.
17
This Federal Court applied the constitutional doctrine of "heightened scrutiny." For the first time, gays and lesbians are now recognized as a vulnerable minority! If it stands, this will be a monumental case in the history of gay rights.
19
I have a question: if section 3 is struck down on Constitutional grounds, I think that means, in theory, that my home state (Louisiana) will not recognize my (legal Canadian) marriage, but the Feds will. So I still can't carry my husband on my employer-provided health insurance (I work in a state office), but, in theory, if something happens to my husband, I could file for Social Security survivor benefits.
Is this how it would shake out?
Is this how it would shake out?
20
@19: That is correct. Louisiana law prohibits the state gov. from recognizing same-sex marriages contracted in other jurisdictions, but striking down Section 3 of DOMA would allow (indeed, require) the Feds to recognize your valid Canadian marriage.
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