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| | |-+  DOMA Declared Unconstitutional Again - By a Bush Appointee
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Emperor Scott
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« on: July 31, 2012, 10:53:35 pm »
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DOMA, the federal Defense of Marriage Act, has yet again been declared unconstitutional by a federal court, marking at least a half-dozen federal courts ruling the 1996 law unconstitutional.

In May, DOMA was declared unconstitutional by federal courts twice.

Both President Obama’s Department of Justice and John Boehner’s so-called “Bipartisan” Legal Advisory Group (BLAG) (which Democrats do not support) have petitioned the Supreme Court to rule on DOMA, after a string of seven rulings in a row shaming John Boehner’s hand-picked litigator, Paul Clement. Clement is reportedly being paid up to $1.5 million — your tax dollars — to defend a law deemed unconstitutional every time it’s reached the federal courts. Barack Obama and Eric Holder have also deemed DOMA unconstitutional.
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« Reply #1 on: July 31, 2012, 11:01:53 pm »
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It's tough to see how even a conservative jurist could reconcile DOMA with the Full Faith and Credit Clause. Wouldn't surprise me to see Roberts piss off conservatives again if it his the Supreme Court.
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Senator Alfred F. Jones
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« Reply #2 on: July 31, 2012, 11:22:32 pm »
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Heh heh...'blag'.

In all seriousness, freedom is on a Usain Bolt-like run.
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« Reply #3 on: August 01, 2012, 12:23:30 am »

It's tough to see how even a conservative jurist could reconcile DOMA with the Full Faith and Credit Clause. Wouldn't surprise me to see Roberts piss off conservatives again if it his the Supreme Court.

It's very easy to reconcile DOMA with the Full Faith and Credit Clause.  By your mistaken interpretation if back in 1855 a South Carolinian had moved to Minnesota with his slaves, those slaves would remain slaves.  But the Supreme Court has not been that dumb.  It does not interpret the clause in a manner that lets the laws of one State override those of another.  What the clause means with respect to marriage is that if you were to visit Myrtle Beach, South Carolina and get married, in a marriage that would be recognized in Minnesota, then when you returned back to Minnesota, you wouldn't need to get a second marriage license from Minnesota for Minnesota to recognize your union.

Any Constitutional overturn of DOMA would have to be based on an Equal Protection argument, not Full Faith and Credit, and in doing so would have to overturn not only DOMA but also all State bans on same-sex marriage, save perhaps that the "marriage"/"civil union" distinction might be maintained.
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« Reply #4 on: August 01, 2012, 04:49:18 am »
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Any Constitutional overturn of DOMA would have to be based on an Equal Protection argument, not Full Faith and Credit, and in doing so would have to overturn not only DOMA but also all State bans on same-sex marriage, save perhaps that the "marriage"/"civil union" distinction might be maintained.

I've been thinking that if SCOTUS does deal with DOMA, it will be a narrow ruling that leaves the issue of interstate recognition of same-sex marriages for another time and focuses mainly on the federal-state recognition/benefits. I would be totally for them striking down all state bans but I don't see that happening right now.
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« Reply #5 on: August 01, 2012, 10:26:57 am »

Any Constitutional overturn of DOMA would have to be based on an Equal Protection argument, not Full Faith and Credit, and in doing so would have to overturn not only DOMA but also all State bans on same-sex marriage, save perhaps that the "marriage"/"civil union" distinction might be maintained.

I've been thinking that if SCOTUS does deal with DOMA, it will be a narrow ruling that leaves the issue of interstate recognition of same-sex marriages for another time and focuses mainly on the federal-state recognition/benefits. I would be totally for them striking down all state bans but I don't see that happening right now.

I don't see how they can strike down DOMA without at the very least preparing a clear path for overturning the State laws banning same-sex marriage, even if they don't do it in that decision.
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« Reply #6 on: August 01, 2012, 12:55:43 pm »
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Any Constitutional overturn of DOMA would have to be based on an Equal Protection argument, not Full Faith and Credit, and in doing so would have to overturn not only DOMA but also all State bans on same-sex marriage, save perhaps that the "marriage"/"civil union" distinction might be maintained.

I've been thinking that if SCOTUS does deal with DOMA, it will be a narrow ruling that leaves the issue of interstate recognition of same-sex marriages for another time and focuses mainly on the federal-state recognition/benefits. I would be totally for them striking down all state bans but I don't see that happening right now.

I don't see how they can strike down DOMA without at the very least preparing a clear path for overturning the State laws banning same-sex marriage, even if they don't do it in that decision.

The Roberts Court is hardly a model of obeisance of conventional wisdom.
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« Reply #7 on: August 01, 2012, 07:54:02 pm »
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Any Constitutional overturn of DOMA would have to be based on an Equal Protection argument, not Full Faith and Credit, and in doing so would have to overturn not only DOMA but also all State bans on same-sex marriage, save perhaps that the "marriage"/"civil union" distinction might be maintained.

I've been thinking that if SCOTUS does deal with DOMA, it will be a narrow ruling that leaves the issue of interstate recognition of same-sex marriages for another time and focuses mainly on the federal-state recognition/benefits. I would be totally for them striking down all state bans but I don't see that happening right now.

I don't see how they can strike down DOMA without at the very least preparing a clear path for overturning the State laws banning same-sex marriage, even if they don't do it in that decision.

So do you think they'd overturn the lower court decisions and let DOMA stand? I was expecting them to (partially) strike it down but in a way that avoids overturning the state bans or explicitly ruling them constitutional. I think they'd take the same route for the California lawsuit (Perry v. Brown) in the 9th circuit that is now heading their way: http://latimesblogs.latimes.com/lanow/2012/08/gay-marriage-foes.html

Something like refusing to hear the Prop 8 appeal and letting the lower court's ruling (a narrow overturn of just Prop 8 as opposed to all state bans or all the state bans within the 9th circuit) stand along with Baker v. Nelson.
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« Reply #8 on: August 01, 2012, 09:14:56 pm »

So do you think they'd overturn the lower court decisions and let DOMA stand? I was expecting them to (partially) strike it down but in a way that avoids overturning the state bans or explicitly ruling them constitutional. I think they'd take the same route for the California lawsuit (Perry v. Brown) in the 9th circuit that is now heading their way: http://latimesblogs.latimes.com/lanow/2012/08/gay-marriage-foes.html

Something like refusing to hear the Prop 8 appeal and letting the lower court's ruling (a narrow overturn of just Prop 8 as opposed to all state bans or all the state bans within the 9th circuit) stand along with Baker v. Nelson.

If they uphold the lower court decisions, I don't think they'd address the State-level bans at that time, but they would be upholding a equal protection argument as to why DOMA should be overturned.  Once accepted as a reason to overturn DOMA, I don't see any reason it would not be used to overturn the State-level bans.
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