DOMA, Prop 8, and SCOTUS

[GGT]

Rand, they won't rule until June at the earliest. I'm still wagering Prop 8 will be thrown back to CA, based on procedural technicalities.

But no idea what will happen with DOMA. The lesbian spouse suing on the basis of federal tax discrimination seems clear and simple, but it's really the tip of the iceberg. The couples suing on the basis of federal benefits discrimination -- including veteran benefits -- is muddied by the old DADT military policy.

It was good to hear justices muse about same-sex spouses and their children being harmed by DOMA, but that was tempered by other justices musing about this "new-fangled family thing" like it's a cell phone or the internet. It's kind of strange to see a reluctance to expand Equality in the social sphere....when previous courts had no compunction about ruling ahead of societal acceptable norms (ie, voting rights, interracial marriage, desegregated schools, anti-discrimination in the work place, abortion, etc.)

[RandBlade]

DADT is gone so it shouldn't muddy anything.

[LittleFuzzy]

DADT is gone so it shouldn't muddy anything.

It may have been repealed but the consequences still remain. Partnered soldiers qualify for a housing stipend to allow them to live off base with their partner. Does a same-sex civil union count as partnered? DOMA doesn't adress civil unions, as far as I know no federal law does, but that means the military rules and regulations governing things like the housing stipend don't address it the situation. If it should cover the situation now does it matter if the legal relationship was entered into back when it would have gotten the soldier discharged? DADT is definitely still muddying the waters.

edit: I've been thinking a lot about DOMA and the fact that a probable majority on the court really doesn't care for the application of the 14th Amendment as grounds for striking it down leaves them in a bit of a quandary. Marriage *and really, civil unions too, in this regard* is something that there just isn't a very good set of constitutional rules/procedure for. It doesn't usually come up because other than the old miscgenation laws (which were struck down on equal protection grounds, by a rather different court) and the occasional consanguinity law, the states are largely uniform in how they individually deal with marriage. I said before that I thought SCOTUS would, at the least, strike down the first provision saying the Feds don't have to recognize same-sex marriages performed by the states. I now think the most reasonable approach for the Court to take is going to be another punt. Strike the entire thing down on a mix of full faith and credit and the federal supremacy clause. Thit won't really settle the matter because the question of what full faith and credit requires vis a vis marriages which are legal in one state but not another has never really been addressed. Striking DOMA down in this fashion will require Congress to pass better legislation regulating what states need to acknowledge in each other's actions and will also prompt a slew of fresh lawsuits across multiple circuit courts. They'll hash out several different approaches and rules to use which the Supremes will be able to evaluate and select from to make a clearer ruling in a later case.

[RandBlade]

It may have been repealed but the consequences still remain. Partnered soldiers qualify for a housing stipend to allow them to live off base with their partner. Does a same-sex civil union count as partnered?

Yes.

If it should cover the situation now does it matter if the legal relationship was entered into back when it would have gotten the soldier discharged?

No.

I don't see what's complicated. DADT is gone, it is irrelevant whether a couple were gay and never told or gay and new. Or gay and told but never discharged.

When women were given the vote did it matter if they were older than the voting age before they got it? No. The old restrictions are redundant and any idiosyncrasies simply need fixing.

[LittleFuzzy]

Yes.

Why? What establishes that this is the case?

No.

I don't see what's complicated. DADT is gone, it is irrelevant whether a couple were gay and never told or gay and new. Or gay and told but never discharged.

When women were given the vote did it matter if they were older than the voting age before they got it? No. The old restrictions are redundant and any idiosyncrasies simply need fixing.

Rand you do recognize that the final results you think you ought to see aren't necessarily the same thing as the legal reality? You seem to delude yourself into thinking something is completely clear just because you know what you want to see at the conclusion.

[RandBlade]

Why? What establishes that this is the case?

This one (unlike the latter) is opinion but legal precedent suggests that if the military allows someone to serve and gives benefits to partners then it can't discriminate based on the partner like that. SCOTUS has ruled on that principle already with respect to benefits that female soldiers male partners get can't be worse than what male soldiers female spouses get. If the military didn't let gays serve then clearly there would be no payments to gay partners. But they do now.

Rand you do recognize that the final results you think you ought to see aren't necessarily the same thing as the legal reality? You seem to delude yourself into thinking something is completely clear just because you know what you want to see at the conclusion.

This one is simple fact not opinion. There are a number of gay service men and women who came out ('told') before DADT was formally repealed but were never dismissed. They're still serving today. Can they be given a dishonourable discharge now based simply on they're being gay because of DADT? No. Simple, clear no. DADT is gone.

Or show a case of someone getting dismissed because of DADT post-DADT. You can't as its not possible there are none.

[Dreadnaught]

They shouldn't be different when it comes to defining civil rights.



Gender has been an issue for generations (at least from womens' perspectives) for property, voting, marital, sexual and reproductive rights. You may not agree with me, but it's not "wrong" to see sexuality issues as extensions of gender issues, and religious-based ideology, that's entrenched in political/power structures (read white, male, Christian dominated).

Sexuality issues aren't "new" either, we've just been slow to modernize laws to match cultural realities, with acceptance of anything non-heterosexual.



The federal government recognizes "marriage" as a civil right....but it's states that have the power to define and regulate "marriage". Can you think of any other civil right that should vary so widely between states....or be on ballot initiatives to vote the discrimination?



What's the NYT got to do with this? You're using the paranoid "slippery slope" argument, as if marriage equality (between two people of the same gender) will lead to bestiality, NAMBLA, or harems....social decay and loss of Traditional Family Values. OMG what's next? Gay couples wanting to use IVF or surrogates...or *gasp* adopt children?

You are missing the subtlety here and arguing that I am against gay marriage. I am for gay marriage, but it should be something that is resolved state-by-state through the political process. Not a "right" invented by a court of unelected judges and dictated to a hundred million people. Remind me to bring this up when the court invents a right you disagree with.

[RandBlade]

Gay marriage isn't the right, marriage is a right which has come up in previous court cases. Why should the pre-existing right be denied to gays?

Was SCOTUS wrong to permit inter-racial marriages?

You are missing the subtlety here and arguing that I am against inter-racial marriage. I am for inter-racial marriage, but it should be something that is resolved state-by-state through the political process. Not a "right" invented by a court of unelected judges and dictated to a hundred million people. Remind me to bring this up when the court invents a right you disagree with.

[Dreadnaught]

I don't believe marriage is a constitutional right, but rather a privilege/contractual status conferred by the state. For all the court's talk of the "fundamental" right of marriage, it's a concept that (from everything I've read to date) is vaguely and variously defined.

This is the US Constitution, not the UN DHR. I addressed interracial marriage above:

But race/ethnicity is an established and constitutionally-protected group. All functions of government must treat people equally and without regard to race (kinda sorta). But if you think interracial marriage is somehow similar to gay marriage, you're just wrong. Gender and sexuality is a whole new area for our society and legal system to tackle in this sphere.

Taking a step back, the government has defined marriage for a long time now. This probably isn't a good thing, and I would rather the government stop dispensing tax favors on people based on "marriage". But the government doesn't "have" to re-define romantic unions just because some people are pissed-off by a government definition of romantic unions that is discriminatory by definition. That is a role for the democratic process, not the courts.

Courts weighing on these issues are generally thinking about precedents. This means they have to anticipate what other groups will do with that precedent. Asking a court to define marriage means the court has to establish a standard around which they are making that definition, and I doubt/hope that is something the court really wants to do. Otherwise we're going to have a group that isn't "socially acceptable" like polygamists petition the court. Will the New York Times go to bat for polygamists too?

For the record, I'm fine with polygamous marriage being legal. But if the court says that states have no right to define a marriage, they have to be prepared for all possible permutations of that precedent.

[Aimless]

Is it less of an invention when it's dictated by people at the state through the "political process" which apparently doesn't include the politically established and essential mechanism that is a court?

[LittleFuzzy]

Is it less of an invention when it's dictated by people at the state through the "political process" which apparently doesn't include the politically established and essential mechanism that is a court?

Yes, it is less of an invented right because then it is not a right. Of course even if the Court did do it, they wouldn't be making/recognizing/inventing a marriage right, they would be declaring an already established right or process protects/allows marriage regardless of the sexual identity or gender of either party. That distinction appears to be a bit too esoteric for Dread though. What I have readily granted to Dread in the past and will continue to do so is that legitimized same-sex marriage will be on far far firmer ground in any democratic system *at least in the near future, defined as 20-40 years* if it originates in public or legislative democracy than it will if it arises from judicial action.

[Dreadnaught]

Fuzzy's reading me right here; I don't want marriage to be a fundamental legal right. Because by doing so, you have to define marriage in a way that works for "everyone", which I don't think is possible.

[GGT]

This one (unlike the latter) is opinion but legal precedent suggests that if the military allows someone to serve and gives benefits to partners then it can't discriminate based on the partner like that. SCOTUS has ruled on that principle already with respect to benefits that female soldiers male partners get can't be worse than what male soldiers female spouses get. If the military didn't let gays serve then clearly there would be no payments to gay partners. But they do now.

This one is simple fact not opinion. There are a number of gay service men and women who came out ('told') before DADT was formally repealed but were never dismissed. They're still serving today. Can they be given a dishonourable discharge now based simply on they're being gay because of DADT? No. Simple, clear no. DADT is gone.

Or show a case of someone getting dismissed because of DADT post-DADT. You can't as its not possible there are none.

Getting rid of DADT simply means gays can enlist and serve openly now, without being discharged -- it does NOT mean their married partners get spousal benefits. Not sure where you got the idea, since denial of benefits is a huge part of the law suit against DOMA.

Same-sex military spouses can't live on-base in married housing, get a stipend for off-base marital housing, or even shop at the commissary (with its price subsidies)...let alone list their spouse as next-of-kin for emergency contact or surviving spouse benefits. There's also a discriminatory burial policy for same-sex spouses.

I don't believe marriage is a constitutional right, but rather a privilege/contractual status conferred by the state. For all the court's talk of the "fundamental" right of marriage, it's a concept that (from everything I've read to date) is vaguely and variously defined.

SCOTUS has ruled "marriage" is a Civil Right in about 14 separate cases over time, from what I've read. I'm fairly certain that was the underlying precedent in Loving v Virginia. States can regulate marital contracts/registrations/licensing processes, but cannot discriminate against consenting adults based on racial bias. At the time, that bias was based on social norms (and religious dogma) that had no other rationale besides bigotry and racism. Although certain religious groups tried hard to say otherwise....sound familiar?

IMO, it's not a stretch to substitute 'race' with 'sexual orientation'. Particularly since homosexuality is no longer considered a medical or psychiatric pathology or abnormal behavior, and state laws banning certain sex acts have been overturned. AND if marriage is based primarily on sex acts themselves.....there'd be millions of hetero couples saying that's a violation of their privacy.

There are multiple problems with not continuing the precedent of marriage between two consenting, unrelated adults as a civil right. Not because there'd be too many options to appease "everyone", but because other civil rights could be voted AWAY on state ballot initiatives.

[GGT]

Yes, it is less of an invented right because then it is not a right. Of course even if the Court did do it, they wouldn't be making/recognizing/inventing a marriage right, they would be declaring an already established right or process protects/allows marriage regardless of the sexual identity or gender of either party. That distinction appears to be a bit too esoteric for Dread though.

What I have readily granted to Dread in the past and will continue to do so is that legitimized same-sex marriage will be on far far firmer ground in any democratic system *at least in the near future, defined as 20-40 years* if it originates in public or legislative democracy than it will if it arises from judicial action.

But SCOTUS is tasked with adjudicating legislative measures that violate and/or can't be supported by the US Constitution. Since we're a representative democracy, not a direct democracy, and the Constitution has interpretive elements.....setting a 20-40 year timeline is a low and temporary bar.


Makes me wonder how things might be better today, if we'd passed a comprehensive Equal Rights Amendment decades ago.