New York Appeals Court strikes down DOMA

[FaxModem1]

http://www.cnn.com/2012/10/18/justice/n ... index.html

New York appeals court strikes down DOMA
By David Ariosto, CNN
updated 12:32 PM EDT, Thu October 18, 2012
STORY HIGHLIGHTS

The Clinton-era law was passed in 1996 and bars federal recognition of same-sex marriages
The issue is expected to be eventually decided by the U.S. Supreme Court.
Maryland, Washington, Maine and Minnesota are voting on the issue in November referendums.
Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and DC allow it

New York (CNN) -- A federal appeals court in New York on Thursday became the nation's second to deem the Defense of Marriage Act unconstitutional.

The divisive Clinton-era law was passed in 1996 and bars federal recognition of same-sex marriages and says states cannot be forced to recognize such marriages from other states.

The court determined that the federal law violates the Constitution's equal protection clause. A federal appeals court in Boston made a similar ruling in May, but the moves are considered largely symbolic as the issue is expected to be eventually decided by the U.S. Supreme Court.

In February, the Obama administration ordered the Justice Department to stop defending the constitutionality of the law.

Currently, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia issue marriage licenses to same-sex couples.

Maryland, Washington, Maine and Minnesota are voting on the issue in November referendums.

Five states -- Delaware, Hawaii, Illinois, New Jersey and Rhode Island -- currently allow civil unions that provide rights similar to marriage.

So, sooner or later, this will become a Supreme Court matter.

[Dalton]

Condom and porn discussion split to SLAM.

[amigocabal]

So, sooner or later, this will become a Supreme Court matter.

A decision on DOMA will, at a minimum, implicate state marriage amendments, like those in Oklahoma and North Carolina, which also ban civil unions.

[Edward Yee]

Not least because, besides state constitutions not being allowed to directly contradict the US Constitution, the judge's use of "heightened scrutiny". To quote the portion that ThinkProgress quoted:

[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

[Pint0 Xtreme]

So, sooner or later, this will become a Supreme Court matter.

A decision on DOMA will, at a minimum, implicate state marriage amendments, like those in Oklahoma and North Carolina, which also ban civil unions.

I don't see the down side to this effect.

[amigocabal]

So, sooner or later, this will become a Supreme Court matter.

A decision on DOMA will, at a minimum, implicate state marriage amendments, like those in Oklahoma and North Carolina, which also ban civil unions.

I don't see the down side to this effect.

In my opinion, the Supreme Court should go back to first principles when interpreting the Constitution in regards to DOMA. Keep in mind, that what the Court is essentially doing is subordinating the political preferences of Congress to the political preferences of those who authored, passed, and ratified the amendments against which DOMA is measured. The only legitimate way to go against the political preferences of prior generations expressed in the form of constitutional provisions is the Article V process. If DOMA goes against the political preferences of past generations as expressed in the Constitution and its amendments, it must be struck down.

It is clear that at the time those amendments were ratified, marriage was understood to be an opposite-sex union. See John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States at 105 (1868) (defining marriage as “contract, made in due form of law, by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife.”), Joel Prentiss Bishop, Commentaries on the Law of Marriage & Divorce § 225 (1st ed. 1852) ("Marriage between two persons of one sex could have no validity, as none of the ends of matrimony could be accomplished thereby. It has always, therefore, been deemed requisite to the entire validity of every marriage . . . that the parties should be of different sex.”) So the questions the Supreme Court should ask are:

1. What was the rationale for this understanding? Did past generations believe this rationale to be valid
2. Did those past generations believe this understanding of marriage to further an important or compelling government interest?
3. Did those past generations believe that classifications on the basis of sexual orientation to require greater scrutiny than classifications based on one's status as a horseback rider, canal operator, or carpet cleaner?

[Pint0 Xtreme]

A decision on DOMA will, at a minimum, implicate state marriage amendments, like those in Oklahoma and North Carolina, which also ban civil unions.

I don't see the down side to this effect.

In my opinion, the Supreme Court should go back to first principles when interpreting the Constitution in regards to DOMA. Keep in mind, that what the Court is essentially doing is subordinating the political preferences of Congress to the political preferences of those who authored, passed, and ratified the amendments against which DOMA is measured. The only legitimate way to go against the political preferences of prior generations expressed in the form of constitutional provisions is the Article V process. If DOMA goes against the political preferences of past generations as expressed in the Constitution and its amendments, it must be struck down.

It is clear that at the time those amendments were ratified, marriage was understood to be an opposite-sex union. See John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States at 105 (1868) (defining marriage as “contract, made in due form of law, by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife.”), Joel Prentiss Bishop, Commentaries on the Law of Marriage & Divorce § 225 (1st ed. 1852) ("Marriage between two persons of one sex could have no validity, as none of the ends of matrimony could be accomplished thereby. It has always, therefore, been deemed requisite to the entire validity of every marriage . . . that the parties should be of different sex.”) So the questions the Supreme Court should ask are:

1. What was the rationale for this understanding? Did past generations believe this rationale to be valid
2. Did those past generations believe this understanding of marriage to further an important or compelling government interest?
3. Did those past generations believe that classifications on the basis of sexual orientation to require greater scrutiny than classifications based on one's status as a horseback rider, canal operator, or carpet cleaner?

Are you speaking to someone else with this response? Because I don't see any relevance of these questions to what I just said about the beneficial effects of striking down DOMA.