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Did First Circuit Use 10th Amendment to Strike Down Portions of the Defense of Marriage Act?

Posted by B. Daniel Blatt at 12:36 pm - May 31, 2012.
Filed under: Constitutional Issues,Gay Marriage

At first blush, the First Circuit ruling overturning portions of the Defense of Marriage Act (DOMA), those denying “federal benefits to married gay couples”, appears to be on shaky legal ground:  “In its unanimous decision, the three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston said the 1996 law that defines marriage as a union between a man and a woman deprives gay couples of the rights and privileges granted to heterosexual couples.

There is no constitutional right to those privileges.

That said, there is the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Later in the AP article cited above, we read:

The court, the first federal appeals panel to deem the benefits section of the law unconstitutional, agreed with a lower level judge who ruled in 2010 that the law interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

. . . .

“One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage,” Judge Michael Boudin wrote for the court. “Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

Emphasis added.  Now, while I might quibble with Judge Boudin’s language, he said, “legalize” when he clearly meant “recognize”, he does seem to be on solid Tenth Amendment grounds here.

The court points out that,” observes Ed Morrissey helping get a the point about the judge’s language, “contra some hysteria among activists, DOMA does not invalidate marriages, but it gives states leeway to disregard marriages performed in other states, and puts the federal government in the position of denying the validity of such marriages”.   Indeed.  If a state “disregards” a marriage, they just don’t grant it privileges, but it still remains valid — or should — in the eyes of those who define themselves as married.

Now to check Volokh for some sound legal analysis.  UPDATE:  Dale Carpenter has a short post on the decision, observing

The panel was careful to say that its decision did not invalidate state marriage laws excluding same-sex couples because, in part, only the Supreme Court could do so under its own precedent in Baker v. Nelson (summarily dismissing, for want of a substantial federal question, a challenge to Minnesota’s marriage law in 1971).

From just having read news reports on the decision — and not having read the decision itself — the court doesn’t seem to have overreacted, limiting its decision to one section of the law.  I would be more inclined to support the decision should the panel have relied on the Tenth Amendment in making its decision.

The real question does appear to be whether the federal government can define marriage for the purpose of granting a federal benefit.

As I will not have time today to read the actual decision, I encourage you to keep an eye on Volokh, particularly on my friend Dale Carpenter‘s posts, for expert legal analysis.

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41 Comments

  1. My disagreement, based on how it’s written, is it’s saying gay couples are affected. The constitution, at its core, has individual rights. (didn’t we just have this fight over the second amendment?) That a couple can’t meet the requirements for recognition, doesn’t mean it’s discriminatory. Each individual person can.

    Slippery slope. If it’s unfair for a same sex couple to be denied the recognition of marriage, what about a trio?

    Comment by The_Livewire — May 31, 2012 @ 1:04 pm - May 31, 2012

  2. Livewire, along the same lines, I make this argument all the time. When same-sex marriage becomes 100% legal in the U.S., then what about bisexuals? How do you deny a bisexual man the right to marry both a man and woman at the same time? And the other woman, if she’s bisexual, has the right to marry both a man and woman, so now you’re looking at a 4-person marriage. I would be very happy if someone can intellectually talk me out of this. Slippery slope indeed.

    I am gay and do want to be able to legally marry my partner, but there is that other part of me that is afraid of the slippery slope.

    Comment by Eddie — May 31, 2012 @ 2:11 pm - May 31, 2012

  3. Eddie,

    I’ve argued in the past this is why legislation of a seperate institution is the answer. (Fred) If the state (and federal) legislations formally created Fred, then the answer to the polygamists, child molestors, people marrying fictional characters, etc etc. is “There is a path, this is how you do it. So stop whining and do it!”

    (Aside, while I’m against SSM, I would accept (if not be happy with) the legislatures recognizing SSM. I’d point out that people who are against SSM (or Fred) still have every right to dismantle such an institution. As SSM advocates in Ohio and California and Illinois have shown, they won’t accept accomidation, compromise or defeat.)

    Comment by The_Livewire — May 31, 2012 @ 2:19 pm - May 31, 2012

  4. I’m curious what other laws in effect at the federal level allows one state to disregard civil rights granted in another state?

    Comment by Kevin — May 31, 2012 @ 2:28 pm - May 31, 2012

  5. I’m curious what other laws in effect at the federal level allows one state to disregard civil rights granted in another state?

    Comment by Kevin — May 31, 2012 @ 2:28 pm – May 31, 2012

    I’m curious, Kevin; since you insist that marriage is a “civil right” that the government has no power to limit, will you state that laws prohibiting it for anyone for any reason are illegal?

    Also, Kevin, the right to bear arms is a constitutional civil right spelled out in the Second Amendment; will you now state that current Obama-supported laws that ban the right of concealed and open-carry granted to citizens by other states are unconstitutional and illegal?

    Comment by North Dallas Thirty — May 31, 2012 @ 2:40 pm - May 31, 2012

  6. It seems that some of the commenters here – and the OP – is missing that marriage is a fundamental right, and has been recognized as such by the Supreme Court some 15, 20-odd times over the decades.

    Marriage between more than two people would be a different legal beast, changing the nature of rights and responsibilities between the multiple partners from that of a 2-person marriage. The only difference between same-sex and opposite-sex marriage is the gender of each person in it; a polygamous marriage would be a different legal and financial thing, so recognizing that the fundamental right to marriage doesn’t have a gender component to it does not in doing do “accidentally” demand polygamy be legalized too.

    Comment by torrentprime — May 31, 2012 @ 2:58 pm - May 31, 2012

  7. Sorry, state recognized marriage is not a civil right nor a fundamental one. And if, torrentprime, you’re going to call it such, you must bear in mind Baker v. Nelson cited above.

    Comment by B. Daniel Blatt — May 31, 2012 @ 3:34 pm - May 31, 2012

  8. Thanks for the answer, BDB.
    I am not calling the right to marry fundamental – SCOTUS did. Many, many times. Is there disagreement on this? I can cite Loving, Zablocki, Turner…
    Baker v Nelson stops lower courts from accepting that this fundamental right includes same-sex marriage pairings, but it doesn’t deny that marriage is such a fundamental right.

    Comment by torrentprime — May 31, 2012 @ 3:56 pm - May 31, 2012

  9. Torrentprime demonstrates the hilariously-desperate reasoning of the liberal left in its statements.

    It seems that some of the commenters here – and the OP – is missing that marriage is a fundamental right, and has been recognized as such by the Supreme Court some 15, 20-odd times over the decades.

    Except for that pesky Baker v. Nelson decision, in which the same court that decided Loving found that there was no Federal guarantee of marriage for gay-sex couples.

    Historical ignorance is one thing. But then torrentprime follows it up with this hilariously-contradictory statement:

    Marriage between more than two people would be a different legal beast, changing the nature of rights and responsibilities between the multiple partners from that of a 2-person marriage.

    If marriage is a “fundamental right”, that means it cannot be abrogated in any way for any reason.

    So torrentprime’s attempt to argue that polygamy and any other form of marriage should stay illegal contradicts its argument that marriage is a “fundamental right”.

    Comment by North Dallas Thirty — May 31, 2012 @ 3:57 pm - May 31, 2012

  10. And it gets even loonier.

    Baker v Nelson stops lower courts from accepting that this fundamental right includes same-sex marriage pairings, but it doesn’t deny that marriage is such a fundamental right.

    Comment by torrentprime — May 31, 2012 @ 3:56 pm – May 31, 2012

    Or, in the reasoning of the addled torrentprime, a fundamental right can never be ignored by the courts, except when it can be.

    BWAHAHAHAHA!

    Comment by North Dallas Thirty — May 31, 2012 @ 3:58 pm - May 31, 2012

  11. Marriage between more than two people of the same sex would be a different legal beast, changing the nature of rights and responsibilities between the multiple partners two same sex people from that of a 2-person marriage. The only difference between same-sex polygamous and opposite-sex marriage is the gender number of each person in it

    .

    See how easy that is? Your ‘argument’ turned into the argument for polygamous relationships to be recognized.

    This

    a polygamous marriage would be a different legal and financial thing, so recognizing that the fundamental right to marriage doesn’t have a gender component to it does not in doing do “accidentally” demand polygamy be legalized too.

    Is jsut ignorance, as the argument in Illinois is exactly that. That because the state recognizes marriage, it ‘accidentally’ has to recognize SSM too.

    Comment by The_Livewire — May 31, 2012 @ 4:03 pm - May 31, 2012

  12. Kevin, at #4

    I’m curious what other laws in effect at the federal level allows one state to disregard civil rights granted in another state?

    That Pesky Constitution:

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

    Comment by The_Livewire — May 31, 2012 @ 4:05 pm - May 31, 2012

  13. Unfortunately, the ‘fundamental right’ argument breaks down. KEvin has the same ‘fundamental right’ to marry someone, of the opposite sex, that every male does, and to have that recognized by the state. How is that discriminatory?

    Comment by The_Livewire — May 31, 2012 @ 4:06 pm - May 31, 2012

  14. Marriage between more than two people of the same sex would be a different legal beast, changing the nature of rights and responsibilities between the multiple partners two same sex people from that of a 2-person marriage. The only difference between same-sex polygamous and opposite-sex marriage is the gender number of each person in it

    .

    See how easy that is? Your ‘argument’ turned into the argument for polygamous relationships to be recognized.

    This

    a polygamous marriage would be a different legal and financial thing, so recognizing that the fundamental right to marriage doesn’t have a gender component to it does not in doing do “accidentally” demand polygamy be legalized too.

    Is just ignorance, as the argument in Illinois is exactly that. That because the state recognizes marriage, it ‘accidentally’ has to recognize SSM too.

    Comment by The_Livewire — May 31, 2012 @ 4:06 pm - May 31, 2012

  15. […] bloggers about redefining marriage in public policy* but I appreciate their analysis. One thing in their post about this decision I thought was very interesting is (linkage GayPatriot)… At first blush, the First Circuit […]

    Pingback by Defense of Marriage Act (DOMA) Ruled Unconstitutional | RandyThomas.Co — May 31, 2012 @ 4:31 pm - May 31, 2012

  16. Livewire,
    proving you can know how to use the strike tag doesn’t mean the resulting construction has any meaning. You didn’t explain *how* a marriage with a same-sex couple versus a marriage with an opposite-sex couple is any different. But legal consequences between partners in a poly-marriage would be different. How is support apportioned? What about legal testimony? Inheritance? The different between a legal marriage of 2 men, 2 women, and a man and woman is, however, the same.

    And as for “every man has the same right every other man has” is the same argument made, and failed, in justifying interracial marriage bans. In that case, every man had the same right every other man had – to marry the same race. Didn’t work then, and won’t work now.

    And ND30: I don’t think you read the opinion / understand the legal argument here; Baker (and the underlying rule of precedent in the US justice system) forbids a lower court from addressing the issue, but SCOTUS can. Hope that clears it up.

    Comment by torrentprime — May 31, 2012 @ 4:54 pm - May 31, 2012

  17. You didn’t explain *how* a marriage with a same-sex couple versus a marriage with an opposite-sex couple is any different.

    Comment by torrentprime — May 31, 2012 @ 4:54 pm – May 31, 2012

    Because, torrentprime, in the normal course of human events, an opposite-sex couple is going to end up producing helpless dependents with no ability to care for themselves, no legal structure to protect them, and no means of providing for their own welfare.

    A same-sex couple? Will never happen. You and your fellow gay-sex partners are supposed to be adults who can take care of themselves. Why should society waste money paying for you that it could be using to make things better for children who can’t pay for themselves?

    But legal consequences between partners in a poly-marriage would be different. How is support apportioned? What about legal testimony? Inheritance?

    Ah, so if something is too legally-complex, then you can deny peoples’ “fundamental right” to marry with whatever they wish to have sex.

    And that leads us to this:

    And as for “every man has the same right every other man has” is the same argument made, and failed, in justifying interracial marriage bans. In that case, every man had the same right every other man had – to marry the same race. Didn’t work then, and won’t work now.

    Mainly because there are three amendments to the Constitution that explicitly speak to race – not to mention the fact that, as your Obama Party’s latest fiasco Lizzie Warren shows us, race is based solely on whatever the person trying to lie her way into a position says it is.

    But your question has nothing to do with race, torrentprime. You are demanding that you be allowed to marry with whatever you wish to have sex. Moreover, you are demanding that society fork over benefits for you that were intended for the protection of dependent children, which you will never be bothered with in the normal course of human events.

    Livewire’s point is perfectly apt. Your excuses that you are using for grubbing for the welfare teat are perfectly applicable to anyone else who wants it — and your attempts to whine otherwise make it clear that your complaints of “equal protection” have nothing to do with “equality”.

    Comment by North Dallas Thirty — May 31, 2012 @ 5:48 pm - May 31, 2012

  18. Shorter Torrent. “I can’t argue I have any less access to marriage than any other single person, so I’ll fall back on an argument that has been debunked. And pretend Baker v. Nelson was not decided, let alone 9-0.”

    Comment by The_Livewire — May 31, 2012 @ 7:25 pm - May 31, 2012

  19. States already differ in marriage laws so it’s not unconstitutional to have one state with same-sex marriage and another not. Just as long as the federal government recognize all marriage licenses regardless of what kind of marriage it is.

    http://www.usmarriagelaws.com/

    Comment by MV — May 31, 2012 @ 8:11 pm - May 31, 2012

  20. This debate goes on and on and on.

    The same arguments used against gay marriage were the same arguments used against interracial marriage. They were invalid then and they are invalid now.

    First,

    Children cannot enter into legal agreements, without parental consent. No Child-Child or Adult-Adult marriage unless a parent consents, which already happens

    Animals and inane objects are not citizens of the state; therefore they can’t enter into legal agreements.

    Polygamy is a legally different creature, and if it isn’t its up to them to make their case in the court of law.

    Two Men, Two Women or One Man or One Women is no different from one another. Except in the eyes of religion. The US isn’t bound by theology, but on Civil, Common and Natural law. That means equality under the law. Denying gays the rights associated with marriage denies them equal access under the law.

    Second,

    Don’t like those answers! Fine! It’s all chin music anyways.

    Gay rights have advanced under the judicial branch. There have only been a handful of courts on the side of retarding gay rights. Most have advanced gay rights.

    Also, most courts have in some way ordered that bans on gay marriage are unconstitutional.

    Furthermore, this issue is going to make it to the Supreme Court. Provided the court doesn’t change, “it don’t look to good for you.” With the exception of the issue with the Boy Scouts, Kennedy has always sided with gay rights. The SCOTUS is never afraid to overturn a prior ruling, and Kennedy especially doesn’t. Bans on gay marriage are going to be overturned, Kennedy isn’t on your side and neither are the four liberal justices. Sorry.

    But if it sooths your soul, you should know that regardless of who is president on Jan 21st 2013, if the SCOTUS overturns bans on gay marriage in the next four years, every single homophobic right wing nut job, and homophobic democratic voter will vote for anyone with an R next to their name.

    If gay marriage is overturned before November of 2016, 2016 will be a year for Republicans that 1932 and 2008 was for Democrats. You will have lost the battle on gay rights, but you most certainly will win the battle on taxation, regulation, social justice, social services, foreign policy, etc. You may have lost the battle to subjugate gays, but you will have won the war for the direction of America for the next 50 years. If that doesn’t sooth your soul, well all I can say is you “can’t always get what you want.”

    Lastly,

    What annoys me the most is how deceitful, you homophobes are.
    Those of us who want gay marriage, what gay marriage because we want the rights, responsibilities, and legal protections heterosexual married couples have. You on the other hand refuse to admit, that the reason you oppose gay marriage, is because you hate gay people. The fact that you have to lie, is evident enough that your position is doomed to fail when it finally goes to the SCOTUS.

    Comment by JPerry2006 — May 31, 2012 @ 8:30 pm - May 31, 2012

  21. If there is a slippery slope, it started when governments started deciding who was or was not married, and then began handing out special rights and privileges to those they considered married. Suddenly, now that gay couples want to be married, frightened bigots are dreaming up all sorts of bizarre scenarios that they believe will be right around the corner if my partner of 31 years and I are allowed to marry.

    The obsession with gender in qualifying human relationships became tiresome a long time ago. The overwhelming relevant aspects of relationships revolve around two people being human. Whether they are same-sex or opposite-sex couples is a relatively minor distinction in the overall scheme of things – unless you suffer from Gender Obsession Disorder. And we know that lots of people do, in fact, suffer from G.O.D.

    Comment by Richard R — May 31, 2012 @ 8:46 pm - May 31, 2012

  22. First,

    “Children cannot enter into legal agreements, without parental consent. No Child-Child or Adult-Adult marriage unless a parent consents, which already happens”

    Age of consent laws are legal constructs, just like recoginition of marriage. Plus, the 9th circus may have thrown out age of consent laws, depending of the reading/

    “Polygamy is a legally different creature, and if it isn’t its up to them to make their case in the court of law.”

    kind of like SSM advocates.

    “Two Men, Two Women or One Man or One Women is no different from one another.”

    Well except for the “One man and one woman part.” So you’re right, except where you’re wrong.

    “Except in the eyes of religion. The US isn’t bound by theology, but on Civil, Common and Natural law. That means equality under the law. Denying gays the rights associated with marriage denies them equal access under the law.”

    I’m unaware of where a gay man cannot marry a woman, same as any other man. No one’s “Rights” are being denied.

    Care to try again?

    Comment by The_Livewire — May 31, 2012 @ 8:50 pm - May 31, 2012

  23. And here comes Richard, with the religious bigot view.

    Comment by The_Livewire — May 31, 2012 @ 8:51 pm - May 31, 2012

  24. Those of us who want gay marriage, what gay marriage because we want the rights, responsibilities, and legal protections heterosexual married couples have.

    Yup. You want that which you didn’t earn, that which you didn’t need, that which you have no intention of honoring, and that which you wouldn’t care about if you weren’t antireligious bigots.

    You on the other hand refuse to admit, that the reason you oppose gay marriage, is because you hate gay people. The fact that you have to lie, is evident enough that your position is doomed to fail when it finally goes to the SCOTUS.

    Comment by JPerry2006 — May 31, 2012 @ 8:30 pm – May 31, 2012

    Actually, it’s because there is no reason for society to take benefits, privileges, and protections away from children to give to lazy gay bigots like yourself who don’t want to work and want to sponge off the state.

    And the Supreme Court has already decided once that gay-sex marriage was in no way a Federal right.

    You see marriage as having no value to society other than as a trophy and a means for you to use the government to attack churches, which is why you think the Supreme Court will side with you this time.

    LOL.

    Comment by North Dallas Thirty — May 31, 2012 @ 9:09 pm - May 31, 2012

  25. Can you explain to me how gays getting married, in anyways constitutes them sponging off the state and straights getting married doesn’t?

    Comment by Jedwards — May 31, 2012 @ 10:09 pm - May 31, 2012

  26. NDT. You honestly think Kennedy is going to side with the anti-gay marriage side? With the exception of the boy scouts, which was more of an issue about the rights of private clubs then gay rights, Kennedy was consistently ruled in favor of the gay rights side. Gay marriage is going to happen.

    Comment by JPerry2006 — May 31, 2012 @ 10:17 pm - May 31, 2012

  27. Can you explain to me how gays getting married, in anyways constitutes them sponging off the state and straights getting married doesn’t?

    Comment by Jedwards — May 31, 2012 @ 10:09 pm – May 31, 2012

    Sure.

    Straights invariably end up producing children in the process, who grow up, replace their parents in the workforce, and pay the taxes or costs necessary to support their parents and others.

    The cost and issue of raising children is why marriage even has preferential legal and tax treatment in the first place; society has found it a good thing to incent people to get married and either have kids or take care of the kids they already have.

    Gays want to collect the benefits without keeping up their end of the bargain. And considering the promiscuity and disdain the gay and lesbian community has towards even the basic responsibilities of marriage — witness gay and lesbian leader Dan Savage mocking monogamy and fidelity and calling them “hurtful” — all it does is cheapen marriage even more.

    Comment by North Dallas Thirty — May 31, 2012 @ 11:14 pm - May 31, 2012

  28. NDT. You honestly think Kennedy is going to side with the anti-gay marriage side? With the exception of the boy scouts, which was more of an issue about the rights of private clubs then gay rights, Kennedy was consistently ruled in favor of the gay rights side. Gay marriage is going to happen.

    Comment by JPerry2006 — May 31, 2012 @ 10:17 pm – May 31, 2012

    Yup.

    Or, more precisely, Kennedy is going to side with the basic, simple interpretation that marriage is not a constitutional right and that the states and government are well within their powers to define it as they please.

    Comment by North Dallas Thirty — May 31, 2012 @ 11:15 pm - May 31, 2012

  29. First, if the state is able to define marriage as it pleases, why then was bans on interracial marriage ruled unconstitutional.

    Second, why don’t the arguments used by racists in the 60’s claiming; 1. since marriage has been the union of two people of the same race that it shouldn’t be redefined to include members of different races and 2. that members of the same race can marry thus they aren’t being denied marriage rights, hold water?

    Three, an oldie I admit. But if marriage is only about giving benefits to couples who can reproduce. Why shouldn’t their be a ban on sterile people marrying, or old women marrying? Also, gays can adopt even in very conservative states, why doesn’t that count?

    Fourth, what straws are you grasping at when you state Kennedy will swing against SSM? Even your homophobic friends at savecalifornia, admit that Kennedy will likely swing in the way in favor. Kennedy, in Romer v. Evans wrote that there was no reason behind Colorado’s actions other then animus towards gays. In Lawrence Vs. Texas Kennedy stated how consenting homosexuals express their love is none of the state’s business. A wording that Scalia said would lead to gay marriage. Furthermore, Ted Olson on Bush in Bush vs. Gore, a man who is perhaps the best lawyer in America, stated that he is optimistic that when DOMA or Prop 8 make it to the SCOTUS his side, the pro-gay equality side will win, and Kennedy will be the deciding vote.

    Lastly, if marriage is indeed a state’s right. Then how is DOMA constitutional? Gays are able to marry in 6 states, DOMA prohibits federal recognition of those marriages, how then can it be claimed that DOMA respects a states powers?

    Comment by JPerry2006 — May 31, 2012 @ 11:56 pm - May 31, 2012

  30. First, if the state is able to define marriage as it pleases, why then was bans on interracial marriage ruled unconstitutional.

    1. The Thirteenth, Fourteenth, and Fifteenth Amendments, all of which deal specifically with the issue of race

    2. The fact that race is a completely undefinable construct, as is shown by Obama Party liar Lizzie Warren’s attempt to claim she is “Native American” for the purposes of getting employment for which she wasn’t qualified.

    That deals with the first two.

    Three, an oldie I admit. But if marriage is only about giving benefits to couples who can reproduce. Why shouldn’t their be a ban on sterile people marrying, or old women marrying?

    Because in those situations the people involved are biologically damaged through no choice or fault of their own.

    If you’re willing to state that being gay means you’re biologically damaged, then I’ll accept the argument that you should not be discriminated against because of your disability.

    Also, gays can adopt even in very conservative states, why doesn’t that count?

    Because adoption is a separate legal process.

    And, hilariously, you have already argued that children’s welfare is irrelevant when one is talking about marriage, so your attempt to use adoption contradicts your previous arguments.

    Mine is very simple. Society should privilege those relationships that are most beneficial. Protecting the welfare of children is primary, and gay-sex liberals like yourself will never produce children; therefore, your taking the benefits is depriving children of them.

    Fourth, what straws are you grasping at when you state Kennedy will swing against SSM? Even your homophobic friends at savecalifornia, admit that Kennedy will likely swing in the way in favor. Kennedy, in Romer v. Evans wrote that there was no reason behind Colorado’s actions other then animus towards gays. In Lawrence Vs. Texas Kennedy stated how consenting homosexuals express their love is none of the state’s business. A wording that Scalia said would lead to gay marriage. Furthermore, Ted Olson on Bush in Bush vs. Gore, a man who is perhaps the best lawyer in America, stated that he is optimistic that when DOMA or Prop 8 make it to the SCOTUS his side, the pro-gay equality side will win, and Kennedy will be the deciding vote.

    Easy. Kennedy is going to side with the basic, simple interpretation that marriage is not a constitutional right and that the states and government are well within their powers to define it as they please.

    Lastly, if marriage is indeed a state’s right. Then how is DOMA constitutional? Gays are able to marry in 6 states, DOMA prohibits federal recognition of those marriages, how then can it be claimed that DOMA respects a states powers?

    Comment by JPerry2006 — May 31, 2012 @ 11:56 pm – May 31, 2012

    Easy. DOMA deals with Federal recognition and benefits, which are not within the purvey of the states. Massachusetts cannot arbitrarily rewrite the rules for Social Security and state that people who are age 55 are eligible.

    Comment by North Dallas Thirty — June 1, 2012 @ 12:37 am - June 1, 2012

  31. “The Thirteenth, Fourteenth, and Fifteenth Amendments, all of which deal specifically with the issue of race”

    Those amendments speak nothing of marriage. Literally, for thousands of years marriage was between members of the same race. How are these amendments relevant to the claim that marriage between people of two different races shouldn’t be permitted. Further, how come equal protection protects people of different races to marry but not people of the same sex?

    “And, hilariously, you have already argued that children’s welfare is irrelevant when one is talking about marriage, so your attempt to use adoption contradicts your previous arguments.”

    See, I actually know what I wrote. Far from a “contradiction” its an alternative point. Again, if a gay couple has adopted children, and marriage serves as a means to protect children, why then couldn’t a gay couple with adopted children marry.

    “Society should privilege those relationships that are most beneficial. Protecting the welfare of children is primary, and gay-sex liberals like yourself will never produce children; therefore, your taking the benefits is depriving children of them.”

    Again, why then should marriage be permitted to the aforementioned. Fault of their own aside, if they can’t give the state children why should they be allowed to marry.

    Also, I’m not certain what a gay sex liberal is, but I can produce children. Heterosexual couples use surrogates all the time. In such a case one of the parents isn’t biologically related to the child. That doesn’t exclude them from marriage benefits nor would we say they aren’t their children. So if a gay couple had children via a surrogate why then wouldn’t they be eligible for marriage benefits.

    “If you’re willing to state that being gay means you’re biologically damaged, then I’ll accept the argument that you should not be discriminated against because of your disability.”

    You have this hard core, BDSM thing going on. You live in SF you should really explore that side of you. Let it out! I’m not going to admit that gays have a disability, because we don’t. Second, if you really think gays are biologically damaged, and your not just trolling. Seriously, live your life as a straight man. You can even help your homophobe friends and claim you were “cured” of your homosexuality.

    “Easy. Kennedy is going to side with the basic, simple interpretation that marriage is not a constitutional right and that the states and government are well within their powers to define it as they please.”

    Seriously, what rulings from Kennedy would make you believe that. Kennedy most certainly did not believe states and governments were in their powers to define sex as they pleased. Nor were they in their powers to prevent gays and lesbians to be denied recognition as a protected class. In Christian Legal Society v. Martinez, Kennedy even went as far as to say that clubs which received gov’t funding were not within their powers to define who could be a club member.

    And while your rebuttals were plain dumb, you totally dropped the ball on the DOMA one man. I mean that was just awful.

    Comment by JPerry2006 — June 1, 2012 @ 1:49 am - June 1, 2012

  32. Literally, for thousands of years marriage was between members of the same race.

    This is probably a weak part of your argument as interracial marriages have been practised throughout history, the banning of it in the United States was really a historical aberration.

    However, polygamous marriage was not unusual for a very long period. The modern era could be seen as the aberration there as polygamy becoming socially unacceptable is a fairly recent thing, certainly more recent than the advent of Christianity.

    Possibly more important though is the view of women in marriage. The idea of marriage for love is very new, dating back maybe 150 years, probably more like 100. Marriage was far more about inheritance, trading, and political bargaining until then. The concept of the women actually having a say in the whole arrangement is a very novel concept, and one that would be quite alien to even the founding fathers.

    Marriage is definitely fundamental to society, but it has not been an unchanging part of society. Ironically, the latest change (I call it the ‘Egalitarian Model’) that is being defended as how it has always been was probably the most radical ever made and the one that most devalued marriage by making it rather unimportant compared to how it used to be, same-sex marriage is minor by comparison.

    Comment by Serenity — June 1, 2012 @ 3:33 am - June 1, 2012

  33. See, I actually know what I wrote. Far from a “contradiction” its an alternative point. Again, if a gay couple has adopted children, and marriage serves as a means to protect children, why then couldn’t a gay couple with adopted children marry.

    So you’d support polygamy if the trio had kids? Or a single man marrying himself?

    Comment by The_Livewire — June 1, 2012 @ 10:44 am - June 1, 2012

  34. Those amendments speak nothing of marriage.

    But they explicitly bar discrimination on the basis of race.

    Hence your answer.

    Also, you admit that these amendments speak nothing of marriage inherently, so your attempt to argue that “equal protection” mandates marriage fails.

    Again, if a gay couple has adopted children, and marriage serves as a means to protect children, why then couldn’t a gay couple with adopted children marry.

    Because the adoption process replicates that which marriage provides directly to children.

    The basic problem here is that you don’t understand the concept of reproduction and are still under the delusion that you can reproduce with gay sex.

    That leads us to this:

    Again, why then should marriage be permitted to the aforementioned. Fault of their own aside, if they can’t give the state children why should they be allowed to marry.

    Also, I’m not certain what a gay sex liberal is, but I can produce children.

    And therein lies the difference.

    Sterile couples cannot produce children even if they want to; you simply are exercising your sexual choices, which will never produce children if you are honest.

    If you are having sex with members of the opposite sex, then clearly you are not being deprived of marrying those with which you have sex. You’re just making the demand similar to a pedophile that the government has to allow you to marry who you want to have sex with at this point in time.

    And that leads us to this:

    Seriously, what rulings from Kennedy would make you believe that. Kennedy most certainly did not believe states and governments were in their powers to define sex as they pleased.

    So you think Kennedy agrees with your argument that you should be allowed to marry whatever you wish to have sex with, then.

    But as you’ve admitted, you can have sex with women; you just choose not to do so, and demand that the government accomodate your choice.

    The problem here is that you don’t want to take responsibility for your choices. You’re like someone demanding the hybrid tax credit for their Camaro; you could have had it had you so chose to buy a hybrid, but you chose to buy a Camaro, so you can’t.

    Comment by North Dallas Thirty — June 1, 2012 @ 2:31 pm - June 1, 2012

  35. Marriage is definitely fundamental to society, but it has not been an unchanging part of society. Ironically, the latest change (I call it the ‘Egalitarian Model’) that is being defended as how it has always been was probably the most radical ever made and the one that most devalued marriage by making it rather unimportant compared to how it used to be, same-sex marriage is minor by comparison.

    Comment by Serenity — June 1, 2012 @ 3:33 am – June 1, 2012

    Actually, it has been unchanging; throughout time, it has always been between a woman and a man.

    The status of the woman has changed, yes, but the simple and basic structure of it being between a woman and a man has not.

    That is because the union of a woman and a man produces something that no other sexual union does. That simple fact and the necessity of providing for it is why marriage exists in the first place.

    Comment by North Dallas Thirty — June 1, 2012 @ 2:42 pm - June 1, 2012

  36. Newsflash: DOMA is unconstitutional as it goes out of its way to discriminate against a certain group of legally-consenting adults regarding a legal institution involving two adults whose genders were never originally defined.

    Only assumed.

    And $1.50 and an assumption will get you a cup of coffee.

    Sorry, folks, hindsight being 20/20, DOMA was unconstitutional, has been unconstitutional, and will be eventually struck down by the Supreme Court of the United States. Deal with it. And deal with the original writer of the law who now campaigns against it.

    And, have a gay old weekend. Mine will be full of bare-back sex, according to ND30. Yee-haw!

    Comment by Cinesnatch — June 1, 2012 @ 4:43 pm - June 1, 2012

  37. The Thirteenth, Fourteenth, and Fifteenth Amendments, all of which deal specifically with the issue of race

    Failed to spot this earlier, but this is a load of crap. Only the Fifteenth Amendment deals with race, neither the Thirteenth nor the Fourteenth Amendments mention race at any point. I’m pretty sure I already told you that at some point.

    But they explicitly bar discrimination on the basis of race.

    Again, getting more specific, here is the only mention of race in the amendments you mentioned:

    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

    From Section 1 of the Fifteenth Amendment, specifically dealing with voting rights.

    The amendment most commonly cited as prohibiting discrimination is the Fourteenth, specifically Section 1, as follows:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Again, no mention of race. No mention of race means it does not “deal specifically with the issue of race” nor does it “explicitly bar discrimination on the basis of race”. The issue of racial discrimination is dealt with implicitly, leaving the door open for the Fourteenth Amendment to prohibit discrimination on more issues than just race, which it since has.

    Comment by Serenity — June 2, 2012 @ 1:11 am - June 2, 2012

  38. Shorter Pomposity: “None of these amendments have anything to do with race, except when they do.”

    It’s like how Nazi comparisons are bad unless Pomposity is making them.

    Furthermore, as has already been stated, the hilarity comes in the fact that there is already a Supreme Court decision stating that gay-sex marriage was never covered under the Fourteenth Amendment – Baker v. Nelson.

    That is because the justices saw no need to restate the obvious. And what becomes funnier is that, when people write amendments and laws that state the obvious, Cinesnatch and its ilk start shrieking.

    Comment by North Dallas Thirty — June 2, 2012 @ 11:18 am - June 2, 2012

  39. Sorry, ND30, I couldn’t hear you over my “shrieking” during the “bareback sex” you say that I have.

    Comment by Cinesnatch — June 2, 2012 @ 6:46 pm - June 2, 2012

  40. Shorter Pomposity: “None of these amendments have anything to do with race, except when they do.”

    Trying to change the subject yet again ND30?

    You said the Thirteenth, Fourteenth, and Fifteenth Amendments all deal specifically with the issue of race when only the Fifteenth Amendment even mentions race. Two out of three may not be bad, but one out of three is, especially when your statement required three out of three to be correct.

    It’s like how Nazi comparisons are bad unless Pomposity is making them.

    Again trying to change the subject, this time to something I never even did. You talk of someone called Joe Jervis (who I’ve never heard of before, apparently he runs Joe My God, which I have at least seen quoted a few times at blogs I do visit) and find that I once mentioned Hitler on this blog, though you clearly don’t know when or where otherwise you’d have quoted that too.

    Furthermore, as has already been stated, the hilarity comes in the fact that there is already a Supreme Court decision stating that gay-sex marriage was never covered under the Fourteenth Amendment – Baker v. Nelson.

    That is because the justices saw no need to restate the obvious. And what becomes funnier is that, when people write amendments and laws that state the obvious, Cinesnatch and its ilk start shrieking.

    Once again, I did not mention same-sex marriage in my previous post, merely that the Equal Protection Clause has been held to apply to various ‘suspect classes’ and hence is not restricted to protecting based solely on race.

    Though now that you mention it, an extension of coverage under the Equal Protection Clause would not be without precedent, as per Reed v. Reed, holding that discrimination again women qualifies as an Equal Protection issue despite previously holding that it did not.

    The Supreme Court of the United States has changed its mind before and will inevitably change its mind again, it’s just one of those facts of life that we all have to live with (well, that you all have to live with anyway, they have no authority over me, obviously).

    Comment by Serenity — June 3, 2012 @ 7:57 am - June 3, 2012

  41. Again trying to change the subject, this time to something I never even did. You talk of someone called Joe Jervis (who I’ve never heard of before, apparently he runs Joe My God, which I have at least seen quoted a few times at blogs I do visit) and find that I once mentioned Hitler on this blog, though you clearly don’t know when or where otherwise you’d have quoted that too.

    Oh really, Stupidity?

    If you’ve never heard of Joe Jervis, never seen his blog, and never even visited his blog, how did you manage to quote it DIRECTLY in this post?

    I’ll just leave this here.

    Comment by Serenity — May 21, 2012 @ 8:18 pm – May 21, 2012

    And, as pointed out, your endorsement of Jervis’s “civility” also includes his Nazi comparisons.

    Which neatly shoots in the foot your screaming and ranting about Nazi comparisons before, all of which are shown to be nothing more than your usual hypocrisy and bigotry.

    Comment by North Dallas Thirty — June 4, 2012 @ 11:52 am - June 4, 2012

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