US Supreme Court Strikes down DOMA

[Swift]

Well, at least as it applies in this case - to same-sex marriages recognized by states, but not recognized by the Federal Government (the Feds now have to give such marriages the same Federal benefits). I don't know yet how broadly they have ruled.

CNN.com

They apparently also dismissed the California Prop 8 appeal, on "standing" grounds (not on the issue of rights), but that means the lower court ruling stands, which allows same-sex marriage.

cnn.com

[pumpkinpi]

This pleases me very much.

[Rebis]

Lots of incoming feed @ Twitter too.

[gethen]

Unfortunately 35 states, including the one I live in, have passed laws against gay marriage, and today's rulings won't change that. I suspect that will not change in these states while the current generation is in control, but maybe in my kids' lifetimes we'll see real equality for all Americans.

[pumpkinpi]

Unfortunately 35 states, including the one I live in, have passed laws against gay marriage, and today's rulings won't change that. I suspect that will not change in these states while the current generation is in control, but maybe in my kids' lifetimes we'll see real equality for all Americans.

A better way of framing that is 30% of Americans now live in states with marriage equality! I'm so glad that mine is one of them as of August 1.

It will take time, but yes it will happen nationally. This is a wonderful first step.

[Swift]

Unfortunately 35 states, including the one I live in, have passed laws against gay marriage, and today's rulings won't change that. I suspect that will not change in these states while the current generation is in control, but maybe in my kids' lifetimes we'll see real equality for all Americans.

A better way of framing that is 30% of Americans now live in states with marriage equality! I'm so glad that mine is one of them as of August 1.

It will take time, but yes it will happen nationally. This is a wonderful first step.

I like pp's phrasing much better.

I also live in a state that outlaws same-sex marriage (by amendment to our state constitution). However, there seems to be some critical threshold that we have rapidly passed, and I don't think it will take another generation for this to change. Just look how much general feelings about this have changed in the last 10 years or so. Remember when it was a big deal that someone like Ellen Degeneres came out.

There has already been discussion in Ohio to change things. From wikipedia

In 2004, voters approved a constitutional amendment, Ohio State Issue 1, that banned same-sex marriage and civil unions in the state. It passed with 62% of the vote.

A September 2012 poll by the Washington Post indicated that 52 percent of Ohio residents surveyed said that gay marriage should be legal, while 37 percent said it should be illegal.

A March 2013 Saperstein poll for the Columbus Dispatch revealed that 54 percent of Ohio residents surveyed supported a proposed amendment that would overturn the state's 2004 constitutional ban on same-sex marriage.

So, in less than 10 years (if you believe polls), we have flipped. I know there have been discussions about putting it back on the ballot and the debate seems to be mostly whether to aim for 2014 or 2015.

[OldCM]

Now there's another quandary. For hetero couples, if married in one state, every other state they may move to will recognize that marriage. So now a gay couple living in and getting married in New York (for example); if they move to a state that does not allow same-sex marriage their marriage is no longer recognized by the second state or the Federal government. Just image if hetero couples had to get married (again) in each state they might move to. There was a lot of optimism on MSNBC over this ruling, but a state like Texas (about as homophobic as you can get) has one hell of a long way to go before they every allow same-sex couples of marry.

SCOTUS did good today, IMO. But terrible yesterday when they struck down the preapproval part of the Voting Rights Act. Now watch all these states pass a flurry to voter-suppression laws at will. When they do, I predict the US attorneys in those states will be busy filing suit in Federal court. JMO, of course.

[Swift]

Now there's another quandary. For hetero couples, if married in one state, every other state they may move to will recognize that marriage. So now a gay couple living in and getting married in New York (for example); if they move to a state that does not allow same-sex marriage their marriage is no longer recognized by the second state or the Federal government. Just image if hetero couples had to get married (again) in each state they might move to. There was a lot of optimism on MSNBC over this ruling, but a state like Texas (about as homophobic as you can get) has one hell of a long way to go before they every allow same-sex couples of marry.

I'm wondering about something...

There was a period of time when interracial marriage was illegal in many states (according to wikipedia, the Supreme Court only overturned such laws in 1967). How did it work when an interracial marriage was legal in some states, but not in others? (though I was alive, born in 1958, I don't recall such details)

Though I suspect, in practice, an interracial couple moving to a state where such a marriage was illegal, were less worried about legal recognition, and more worried about lynchings.

[SciFiFisher]

I'm wondering about something...

There was a period of time when interracial marriage was illegal in many states (according to wikipedia, the Supreme Court only overturned such laws in 1967). How did it work when an interracial marriage was legal in some states, but not in others? (though I was alive, born in 1958, I don't recall such details)

Though I suspect, in practice, an interracial couple moving to a state where such a marriage was illegal, were less worried about legal recognition, and more worried about lynchings.

Actually, the case that went to the Supreme Court and was ruled on in 1967 was a result of that very quandary. In that case the precipitating event was caused by law enforcement breaking down their door in the middle of the night and arresting them. They were hoping to catch them fornicating so they could charge them for that too. They were sentenced to 1 year in prison, sentence suspended for 25 years, on the condition that they leave the state.

In many cases the interracial couple literally did not dare travel to or stay in a state where it was illegal because they risked being arrested and convicted the local courts. Lynching was not as prevalent as might be supposed but the fact that it occurred at all was probably enough to give most couples reason to avoid any state where it was illegal and/or the KKK was strongly entrenched.

[FZR1KG]

Personally I would look at the right to travel section in your constitution for the solution to this problem.

[SciFiFisher]

Personally I would look at the right to travel section in your constitution for the solution to this problem.

I don't know if it will be that easy. When the issue was about interracial marriage many of the states not only outlawed it they made it criminal behavior punishable by prison and/or fines. Interracial couples could be arrested just for staying in a hotel on their way through the state. It wasn't until 1967 that the courts decided that was unequal treatment under the law. Until then the argument was that it was equal treatment because everyone was equally punished under the law regardless of race.

Gay marriage OTOH is not legal in many states but there is no criminal penalty attached to claiming they are married. They just are not accorded the benefits and privileges that married folk have. So, you get married in NY. After awhile you and your spouse decide to move to Arkansas where gay marriage is illegal. You file your taxes just like you did in NY claiming the married tax deduction. The IRS looks at where you live and denies you the deduction. You claim its a valid deduction. The government claims its not because you are not legally married in the state where you reside.

It's going to take a long time to sort out exactly how striking down DOMA is going to be interpreted. Some states may wind up honoring other states marriage licenses regardless of gender. Others will definitely continue to try to strengthen the ban on gay marriage, and some will probably pass gay marriage laws. The general rule thumb in the US is that when 2/3 of the states are all doing the same thing then you can generally bet that it will be a federal thing. So, my guess is that until around 30 to 35 of the states are pro gay marriage and actually recognizing it the federal rights issue is not going to gain much traction.

[geonuc]

Personally I would look at the right to travel section in your constitution for the solution to this problem.

You might think so, but I don't think that will work. As an example of how state interests do not necessarily invoke the right to travel between states, consider the different rates many state universities charge for residents and non-residents. Even though the federal government recognizes you as a resident of a state as soon as you move there (and move out of the other state) and the state government itself requires you to do certain things such as obtain an instate drivers license more or less immediately, you may have to wait a year before you get the cheap tuition rates. During that year, the state is discriminating against you because you are, effectively, a second-class resident. It's legal and constitutional. I believe the same will be true of the state benefits that accrue from marriage.

[Thumper]

On a somewhat related note: Justice Scalia issued the decent yesterday (big surprise). In his bitter, angry tirade he basically accused Justice Kennedy of "gutting and throwing out existing law that had broad popular support." And that was unconscionable and "legislating from the bench." Except he forgot that was the exact thing he did 24 hours earlier when he (Scalia) eviscerated the voting rights act.

[gethen]

Unfortunately 35 states, including the one I live in, have passed laws against gay marriage, and today's rulings won't change that. I suspect that will not change in these states while the current generation is in control, but maybe in my kids' lifetimes we'll see real equality for all Americans.

A better way of framing that is 30% of Americans now live in states with marriage equality! I'm so glad that mine is one of them as of August 1.

It will take time, but yes it will happen nationally. This is a wonderful first step.

Oh, I agree that's it's a great beginning. I was initially very happy about the ruling, but I think I've just been listening to too much local news today in which people email in their thoughts on it. This is a pretty conservative area, so you can imagine. Then husband called his mom about something and got to listen to 10 minutes of ranting on the topic. Add the reaction of the U.S. Catholic bishops and you'll see why I'm feeling a bit pessimistic about any rapid change.

[Swift]

On a somewhat related note: Justice Scalia issued the decent yesterday (big surprise). In his bitter, angry tirade he basically accused Justice Kennedy of "gutting and throwing out existing law that had broad popular support." And that was unconscionable and "legislating from the bench." Except he forgot that was the exact thing he did 24 hours earlier when he (Scalia) eviscerated the voting rights act.

I have heard similar opinions lately, particularly from some of the more conservative justices, and I find it a curious (bizzare) position.

Isn't that a big point of the Supreme Court, to rule when necessary, that a law is unconstitutional, even if it was passed by voters, or a state legislature, or by Congress? The whole "checks and balances" bit.

I find it "amusing" when conservatives, whether Supreme Court justices or talk radio hosts, complain bitterly about "activist judges" when they overturn something they support, but are quite fine with such decisions when they go their way. Was Scalia upset when the Citizens United decision overrode Congress on campaign financing? Many of the great Supreme Court decisions of the Civil Rights Movement were against popular opinion; unfortunately, the general public sometimes will deny people their rights, shouldn't our Constitution and the Supreme Court sometimes protect us from the will of the people.

[SciFi Chick]

On a somewhat related note: Justice Scalia issued the decent yesterday (big surprise). In his bitter, angry tirade he basically accused Justice Kennedy of "gutting and throwing out existing law that had broad popular support." And that was unconscionable and "legislating from the bench." Except he forgot that was the exact thing he did 24 hours earlier when he (Scalia) eviscerated the voting rights act.

Sorry to be so misinformed, but can you explain what happened with the voting rights act? I tried to read through the wikipedia article, and I found it too complicated so early in the morning. :}

[Swift]

Sorry to be so misinformed, but can you explain what happened with the voting rights act? I tried to read through the wikipedia article, and I found it too complicated so early in the morning. :}

My understanding...

There is a provision in the Voting Rights Acting that specifically designated certain states (I think it is nine) that have a prolonged history of voting rights abuses (IIRC, all of these are in the South). In those particular states, they have to get pre-approval of any changes to their election rules from the Federal Voting Rights Commission (or whatever it is called). That provision dates back to the first passage in the 60s, and in the most recent renewal of the law, it was kept in by Congress.

The Court overturned that provision, so those states no longer need pre-approval.

The rest of the act still stands. But that means, if someone thinks their rights are being violated by a voting rule, they have to fight it by brining it to the commission (which, if I understand correctly, is not a easy or simple thing).

[pumpkinpi]

On a somewhat related note: Justice Scalia issued the decent yesterday (big surprise). In his bitter, angry tirade he basically accused Justice Kennedy of "gutting and throwing out existing law that had broad popular support." And that was unconscionable and "legislating from the bench." Except he forgot that was the exact thing he did 24 hours earlier when he (Scalia) eviscerated the voting rights act.

Sorry to be so misinformed, but can you explain what happened with the voting rights act? I tried to read through the wikipedia article, and I found it too complicated so early in the morning. :}

I want to understand this myself and just found a good resource for what may happen now that it has been struck down. It's a long read and I hope to find some time to read it!
http://www.brennancenter.org/sites/defa ... ations.pdf

[FZR1KG]

Personally I would look at the right to travel section in your constitution for the solution to this problem.

You might think so, but I don't think that will work. As an example of how state interests do not necessarily invoke the right to travel between states, consider the different rates many state universities charge for residents and non-residents. Even though the federal government recognizes you as a resident of a state as soon as you move there (and move out of the other state) and the state government itself requires you to do certain things such as obtain an instate drivers license more or less immediately, you may have to wait a year before you get the cheap tuition rates. During that year, the state is discriminating against you because you are, effectively, a second-class resident. It's legal and constitutional. I believe the same will be true of the state benefits that accrue from marriage.

But after a year you get the same rights.
With this, you could live there the rest of your life and you won't.

If it were me I'd be looking to a test case where one/both of a gay couple is asked to move as part of their work.
I understand it may not work, but IMHO, if this doesn't apply constitutionally then that section of the constitution is pretty much impotent in practice.

[FZR1KG]

Isn't that a big point of the Supreme Court, to rule when necessary, that a law is unconstitutional, even if it was passed by voters, or a state legislature, or by Congress? The whole "checks and balances" bit.

Apparently law decided upon by popular vote is perfectly acceptable if it agrees with your position.
Its unfathomable when it doesn't.

For a Supreme Court Judge I find it really fascinating that he is using argumentum ad populum‎.
Me thinks he needs to brush up on his Latin so he can clean off the egg on his face instead of accepting a dozen more.

[geonuc]

I'm no fan of this Supreme Court - the rulings are almost always politically motivated. However, deferring to the vote of the people is a legitimate and necessary judicial restraint. If the people voted for something, a court is supposed to assume it is constitutional as a starting point. Same with acts of Congress. Especially with acts of Congress.

But that's just the starting point. In either case - popular or legislative action - if the court determines the will of the majority has trampled the constitutional rights of the minority, the law should be struck down.

This is what bothers me about striking Section 5 of the Voting Rights Act. The court said Congress needed to revisit their formula for imposing burdens on states who violate the voting rights of minorities, saying that it reflected the circumstances in certain states back when the VRA was first passed. But Congress in 2006 overwhelmingly re-authorized the VRA, essentially reaffirming the formula as of 2006. So, Congress already did what the Supreme Court said they needed to do and this court still invalidated Section 5.

Pisses me off. Again.

[geonuc]

By the way, I know this thread is about the DOMA ruling (this is FWIS so that's irrelevant), but the VRA ruling is far more important in terms of civil liberties, in my opinion. There is no way this Congress will pass a new Section 5 and the remaining legal protections in the VRA are of little help to powerless minorities whose rights might be violated. When states manipulate laws to hinder certain groups from voting, democracy loses.

As an example - you've probably read about Wendy Davis, the Texas legislator who filibustered a bill that would restrict abortion clinics in Texas? Well, the Texas GOP already tried to redistrict her out of the legislature but that was subject to review by the federal government under Section 5 of the VRA. Not any more. Say goodbye to Senator Davis.

[Swift]

By the way, I know this thread is about the DOMA ruling (this is FWIS so that's irrelevant), but the VRA ruling is far more important in terms of civil liberties, in my opinion. There is no way this Congress will pass a new Section 5 and the remaining legal protections in the VRA are of little help to powerless minorities whose rights might be violated. When states manipulate laws to hinder certain groups from voting, democracy loses.

As an example - you've probably read about Wendy Davis, the Texas legislator who filibustered a bill that would restrict abortion clinics in Texas? Well, the Texas GOP already tried to redistrict her out of the legislature but that was subject to review by the federal government under Section 5 of the VRA. Not any more. Say goodbye to Senator Davis.

That is becoming a very common and well excuted tactic of Republicans, particularly with the post 2010 census redistricting. I know in Ohio, they have been gerrymandering like crazy, and it has worked - in a state that is about 50/50 Republican/Democratic, the Republicans hold strong majorities in the state House and Senate. They are also trying to do this with US House districts.

[FZR1KG]

I'm no fan of this Supreme Court - the rulings are almost always politically motivated. However, deferring to the vote of the people is a legitimate and necessary judicial restraint. If the people voted for something, a court is supposed to assume it is constitutional as a starting point. Same with acts of Congress. Especially with acts of Congress.

But that's just the starting point. In either case - popular or legislative action - if the court determines the will of the majority has trampled the constitutional rights of the minority, the law should be struck down.

Totally agree with you.
The problem I have with Scalia is that in my view his comments failed to observe the bolded section in your post and preferred to stay with popular opinion.

The standard test I use (and many do) is to replace whatever the group/minority in question is with "black person", then see how it rings morally.

From that POV, Scalias opinion sucks major ass, and, the major is none too happy about it.

[The Supreme Canuck]

Tangentially related, that's one hell of a cover that the New Yorker has.