Michael Barone writes clueless article

[Torie]

on gerrymandering, redistricting and the pending SCOTUS cases about how to count people for redistricting purposes. The article is wrong in so many ways that I get a headache, starting with his confusion as to the 10% rule applying CD's when it only applies to districts for local offices. And counting population based on something other than the number of bodies around, is going to lead to gerrymandering, because the census doesn't count citizens or whatever? Really? First, the census can start counting if that is the law, and second population estimates will presumably be done by the census, rather than partisan hacks, estimating like say PVI like the Dem hirelings Mathis hired in AZ did, loading the dice for Mathis so that she could say, ignoring the law, that the quartet of Pub sinks on her chop laden, erose map were all done to make for competitive districts. Barone is getting old and losing it. Frightening. I wonder when I start going down that road. Hopefully not until after the Muon2 metrics are finished.

[Brittain33]

I lost patience with Michael Barone when he described DOMA as an attempt by the federal government to prevent states from subverting federal marriage laws or something like that in the late 1990s. He's from a generation that, I think, was uncomfortable with describing the actual subject matter.

But really, he's a victim of gerrymandering in his own right. How does one write an impressionistic description of the people and history of a district like MD-3?

[True Federalist (진정한 연방 주의자)]

I lost patience with Michael Barone when he described DOMA as an attempt by the federal government to prevent states from subverting federal marriage laws or something like that in the late 1990s.

He wasn't completely wrong.  Obviously that wasn't the purpose of DOMA.  It's purpose was to be a weak substitute for a Marriage Amendment to the US Constitution. (Incidentally, if we didn't have such high bars to amending our constitution, such an amendment would have passed and would still be in force today, but I digress.)  However, its effect was indeed to prevent states from rewriting federal marriage law. To the extent such a defense would have been intended to apply generally rather than only to SSM, I think that under our federal system, it would have been a good thing.  Rather than use the pseudo-federalist BS that Kennedy shat out when he wrote Windsor, it would have a good deal sounder constitutionally had he simply obviated the need to revisit SSM two years later and declared it to be a right protected under our constitution back in 2013.

[Brittain33]

However, its effect was indeed to prevent states from rewriting federal marriage law.

What was federal marriage law at the time?

[True Federalist (진정한 연방 주의자)]

However, its effect was indeed to prevent states from rewriting federal marriage law.

What was federal marriage law at the time?

Before DOMA, the feds essentially recognized any state marriage as a marriage for purposes of Federal law.  There was a federal prohibition on polygamy passed back in the 19th century because of the Mormons and there was an implicit ban on Federal SSM since no State recognized such marriages.  However, just before DOMA was passed, the Hawaiian Supreme Court had served notice to the Hawaiian Legislature that they needed to show justification for excluding SSM from being recognized. (Hawaiian law originally implicitly assumed marriage was between a man and a woman but was not explicit.) It looked quite possible that Hawaii would start recognizing SSMs soon, so DOMA codified the existing implicit ban on Federal SSM by making it an explicit ban on recognizing SSM for purposes of Federal benefits and programs.

As it turned out, the Baehr case in Hawaii that had prompted the passage of DOMA ended up going thru a number of delays before ultimately being dismissed when Hawaii adopted an amendment allowing the State to define marriage regardless of any other provisions in the Hawaiian Constitution.  Unlike other, later state constitutional bans on recognizing SSM, Hawaii's constitutional amendment only made it explicit that the legislature would have the power to decide whether to recognize SSM, hence Hawaii's legislature was able to change the law in 2013 without having to go to the voters to get the amendment repealed.

[Brittain33]

Right, the facts aren't in dispute. But an "implicit ban" is not federal law--federal policy for the past century was to have no marriage laws beyond recognizing state marriages in nearly all scenarios. DOMA was breaking new ground by legislating that the federal government would not recognize legal state marriages (although it was several years before that scenario would come to pass.) To construe the lack of explicit support for a scenario that had not been introduced yet as a "ban" is to assume that the federal government had an active policy toward marriages. DOMA "subverted" federal law in the sense that it overwrote federal deference to the states in this area because Congress felt that same-sex marriage was so unacceptable that they had to expand the federal government's power. Because it was so unprecedented, it was doomed to be overturned by the Supreme Court.

To be more cynical, the main purpose of DOMA was really to give the Republicans a culture war issue to campaign on in 1996 against Bill Clinton.

[True Federalist (진정한 연방 주의자)]

As I pointed out in my prior reply DOMA was not the first time a Federal law was passed that provided for nonrecognition of certain marriages. I agree that the Federal government historically had generally given a high level of deference to the States, but that's true of any number of areas including quite a few where the Federal government now actively legislates. That's the principal idiocy of Windsor in my opinion, how it may well end up being applied to areas outside marriage law to shackle the Federal government with excessive deference to the States on topics it historically had deferred to the States because it had not seen a reason to not defer but which a change in circumstances gave it a reason to act. I'll grant Windsor was written in a way that limited its scope to marriage law, but if that limit actually working will depend on how much the judiciary continues to realize that Windsor exists not to provide precedent in federalism cases, but as a way to gradually overturn SSM in hopes of keeping the issue from becoming another one like abortion where the court acted way ahead of public opinion in the 70s.

[Torie]

As I pointed out in my prior reply DOMA was not the first time a Federal law was passed that provided for nonrecognition of certain marriages. I agree that the Federal government historically had generally given a high level of deference to the States, but that's true of any number of areas including quite a few where the Federal government now actively legislates. That's the principal idiocy of Windsor in my opinion, how it may well end up being applied to areas outside marriage law to shackle the Federal government with excessive deference to the States on topics it historically had deferred to the States because it had not seen a reason to not defer but which a change in circumstances gave it a reason to act. I'll grant Windsor was written in a way that limited its scope to marriage law, but if that limit actually working will depend on how much the judiciary continues to realize that Windsor exists not to provide precedent in federalism cases, but as a way to gradually overturn SSM in hopes of keeping the issue from becoming another one like abortion where the court acted way ahead of public opinion in the 70s.

The Windsor decision is a jurisprudential mess, but then Kennedy specializes in that. In my opinion, it should have focused on DOMA traducing the Constitutional right to travel, ala having excessively long waiting periods to get welfare benefits in a state for new residents, which was struck down on that ground. But you need not worry. Marriage is a rather uniquely important matter to folks. That precedent will not be used to change much vis a vis federal-state relationships in general. SCOTUS has become more sensitive to federal laws that seem to unduly coerce the states however in the past decade or two. But that was happening separate and apart from the marriage issue.

[True Federalist (진정한 연방 주의자)]

SCOTUS has become more sensitive to federal laws that seem to unduly coerce the states however in the past decade or two. But that was happening separate and apart from the marriage issue.

Tho DOMA was imposing no coercion on the states.

[Torie]

SCOTUS has become more sensitive to federal laws that seem to unduly coerce the states however in the past decade or two. But that was happening separate and apart from the marriage issue.

Tho DOMA was imposing no coercion on the states.

Yeah, but your concern was that it opens the door as case precedent to more SCOTUS coercion of the states. I am saying that SCOTUS is going the opposite direction, and that DOMA was a "one-off" due to the rather unique nature of marriage. It was really more about equal protection, and yet another misapplication of that provision, larded up with Kennedy cosmic riffs, but whatever. So I don't think your fear is well taken, is my point.

The right to travel thing is why one state should be forced to recognize a SSM consummated by a couple who were resident in another state. I got things mixed up. I didn't like the legal reasoning in the SSM case either.

[True Federalist (진정한 연방 주의자)]

SCOTUS has become more sensitive to federal laws that seem to unduly coerce the states however in the past decade or two. But that was happening separate and apart from the marriage issue.

Tho DOMA was imposing no coercion on the states.

Yeah, but your concern was that it opens the door as case precedent to more SCOTUS coercion of the states. I am saying that SCOTUS is going the opposite direction, and that DOMA was a "one-off" due to the rather unique nature of marriage, and that it really does frustrate the right to travel, and considerably more so, than waiting periods to be eligible for state welfare. Kennedy just likes going off on to these cosmic riffs, which frankly are kind of embarrassing really. So I don't think your fear is well taken, is my point.

You totally got what I was concerned about wrong. My concern was that it was disrupting the Federal balance by giving the States power to decide policy for the Federal government, which goes way beyond the preexisting (and largely positive IMO) trend that you noted of SCOTUS of curbing Federal coercion of the States.  Yeah, Kennedy tried to limit the application of Windsor to just marriage, but he did so in a may that paid no heed to the concept of co-sovereignty. Ideally, federalism should strive for co-sovereignty as much as possible, and it impairs that if either side can dictate how certain things are to be defined.  While it certainly was an inconvenience to people for the State and Federal governments to disagree on whether their marriage was to be recognized, it wasn't causing implementation difficulties for either the State or Federal governments.

I also fail to see how the case could have been tied to the right to travel unless you want to argue that Windsor should have required those States which did not recognize SSM to recognize SSMs recognized by other States.  Arguably, Windsor made your concern worse, since before Windsor, no matter where in the US a couple in an SSM traveled, they were uniformly treated by the Federal government as not married, whereas after Windsor, where they were married determined if they could get Federal recognition of that marriage.

I further fear you are gravely mistaken as to the impact upon federalism that Windsor will have.  I fear that the mess Kennedy made there will be repeated when in the future SCOTUS wants to go slow on some potentially controversial decision.

[Torie]

Yeah, as I said, I mixed up DOMA with the same sex marriage case. I find your concern rather ironic however. Isn't DOMA the ultimate coercion of the states, intruding into an area traditionally left to the states. And stripping SS couples of all federal benefits is kind of the ultimate coercion to me. It makes a mockery of the state's power to decide who can get married, and who not, and then have such couples have equal treatment. Coercion is about the government using the power of the purse to bitch slap the states excessively.  Myself, I don't thing DOMA was unconstitutional, just horribly wrong. But I think a state refusing to recognize a marriage in another state, by legitimate residents of that state, does traduce the right to travel. And unlike age requirements, such non recognition is permanent, rather than temporary. That is very disturbing to me, and just horrible public policy.

[True Federalist (진정한 연방 주의자)]

Yeah, as I said, I mixed up DOMA with the same sex marriage case. I find your concern rather ironic however. Isn't DOMA the ultimate coercion of the states, intruding into an area traditionally left to the states. And stripping SS couples of all federal benefits is kind of the ultimate coercion to me. It makes a mockery of the state's power to decide who can get married, and who not, and then have such couples have equal treatment. Coercion is about the government using the power of the purse to bitch slap the states excessively.

DOMA certainly bitch slapped SS couples, but it didn't interfere at all with the operation of State governments.  If DOMA had been stripping SS couples of State benefits then it would have been intrusion into State power.  But no State has the right to tell the Federal government who can get Federal benefits, anymore than the Federal government is able to tell the States they must participate in Federal programs.  It often is wise and convenient for the two sides of the federal partnership to coordinate their actions and the Federal government often uses the power of its purse to influence State actions, but influence is not the same as ordering.

[Torie]

Yeah, as I said, I mixed up DOMA with the same sex marriage case. I find your concern rather ironic however. Isn't DOMA the ultimate coercion of the states, intruding into an area traditionally left to the states. And stripping SS couples of all federal benefits is kind of the ultimate coercion to me. It makes a mockery of the state's power to decide who can get married, and who not, and then have such couples have equal treatment. Coercion is about the government using the power of the purse to bitch slap the states excessively.

DOMA certainly bitch slapped SS couples, but it didn't interfere at all with the operation of State governments.  If DOMA had been stripping SS couples of State benefits then it would have been intrusion into State power.  But no State has the right to tell the Federal government who can get Federal benefits, anymore than the Federal government is able to tell the States they must participate in Federal programs.  It often is wise and convenient for the two sides of the federal partnership to coordinate their actions and the Federal government often uses the power of its purse to influence State actions, but influence is not the same as ordering.

Yes, right, but when the federal government uses and refuses to use such federal benefits in a way that abandons the deference to the states in an area where it has traditionally been given, that is intrusive and bullying. The feds are refusing to defer to the state preference for who is let into the marriage club, by the feds suddenly redefining what the membership requirements are to join that club to receive the federal benefits associated with belonging. The spirit of the arrangement was traduced, even though I think what the feds did was wholly in its power. But then I am a Federalist actually, and don't have much truck with states' rights about much of anything. Yet, your screen name has Federalist in it, in fact claiming to be the genuine article. Go figure.

[True Federalist (진정한 연방 주의자)]

But then I am a Federalist actually, and don't have much truck with states' rights about much of anything. Yet, your screen name has Federalist in it, in fact claiming to the genuine article. Go figure.

Since you don't have much truck with states' rights then I'd classify you as a Nationalist instead of a Federalist. Federalism is not about the Federal government getting its way whenever it wants, only in certain constitutionally defined circumstances. The default relationship is co-sovereignity, which can get bumpy at times.

[Brittain33]

DOMA certainly bitch slapped SS couples, but it didn't interfere at all with the operation of State governments.  If DOMA had been stripping SS couples of State benefits then it would have been intrusion into State power.  But no State has the right to tell the Federal government who can get Federal benefits, anymore than the Federal government is able to tell the States they must participate in Federal programs.  It often is wise and convenient for the two sides of the federal partnership to coordinate their actions and the Federal government often uses the power of its purse to influence State actions, but influence is not the same as ordering.

That is an interesting read on Gill vs. Office of Personnel Management, and hard to defend in light of precedent IMO. DOMA required Massachusetts government to violate both its own marriage laws and anti-discrimination provisions when it came to same-sex couples. Whether it is "wise or convenient" for the Feds to start meddling here or can be justified is different from saying this is how it has been in the past--when in the past the federal government deferred to the states to determine eligibility.

[True Federalist (진정한 연방 주의자)]

DOMA certainly bitch slapped SS couples, but it didn't interfere at all with the operation of State governments.  If DOMA had been stripping SS couples of State benefits then it would have been intrusion into State power.  But no State has the right to tell the Federal government who can get Federal benefits, anymore than the Federal government is able to tell the States they must participate in Federal programs.  It often is wise and convenient for the two sides of the federal partnership to coordinate their actions and the Federal government often uses the power of its purse to influence State actions, but influence is not the same as ordering.

That is an interesting read on Gill vs. Office of Personnel Management, and hard to defend in light of precedent IMO. DOMA required Massachusetts government to violate both its own marriage laws and anti-discrimination provisions when it came to same-sex couples. Whether it is "wise or convenient" for the Feds to start meddling here or can be justified is different from saying this is how it has been in the past--when in the past the federal government deferred to the states to determine eligibility.

How so?  Massachusetts wasn't even involved at all in that case.  The benefits that were being denied in the Gill case were wholly Federal benefits.  I think you are thinking of Massachusetts v. United States Department of Health and Human Services which was heard by the same judge. The First Circuit rejected Tauro's holding in Massachusetts that DOMA violated the Tenth Amendment or the Spending Clause but instead ruled under the Equal Protection Clause.

In summary, the case history of DOMA is that its flaws were not because it unconstitutionally interfered in how State governments operated but in how the Federal government treated people. If Kennedy had been willing to take the Equal Protection argument to its logical conclusion in 2013 instead of coming up with some quasi-federalist mumbo-jumbo to make SCOTUS' recognition of SSM be gradual, then there would have been no need for any further cases after Windsor.