Cliffy, the one, I don’t want to say, problem, with that argument, is that the feds certainly have the powe to define who they’re going to give benefits to, right, and can condition those benefits on specific requirements. So, for instance, a state can set the speed limit to whatever they want, but it’s not unconstitutional for the federal government to say, “You can only get highway money from us if the speed limit is X”, or, with drinking ages, to say “You can’t get highway funding if your drinking age is under 21.”
This is undoubtedly coercive, but as per South Dakota v Dole, not unconstitutional.
We’ve seen this federally with marriage anyway before DOMA. The Social Security Administration treats a couple as married for purposes of SSI if they cohabitate and present themselves as husband and wife, even if the state they live in doesn’t have common-law marriage.
So I’m not sure how well that argument would be received by the Supreme Court, given the precedents available.
What happens next in the courts? Who can say? The political/electoral implications are more interesting. Obama has already staked out his position on this . . . and this decision now makes it too salient issue for Romney to ignore . . . so what does he do now?
Can the Supremes rule in (dis)favour of DOMA but avoid elevating sexual preference? If not, does that mean a HAMA (hypothetically about marriage act) can prohibit people born on odd number days from marrying people born on even number days? If so, then does that open the right’s bugaboo that marriage can be arbitrarily defined and Jerry Springer guests will be able to get married?
Do politicians really want the courts to rule on this? Gay marriage seems like the perfect issue for the major political parties. Republicans can use it as a wedge issue and to distract their base from the reality that they are the corporate stooge party and now that it is more popular Democrats won’t get clobbered by it as hard to they can use it to distract their base from the reality that they are the other corporate stooge party. It’s win-win for the Beltway crowd. I would think they wouldn’t be happy with the Supreme Court taking their football away.
That sure is one carefully, even craftily written opinion, but I’m skeptical it holds up on review, unless the Supreme Court decides to overrule Baker. FWIW, I’m strongly pro-SSM on ethical grounds. The question here is whether the DOMA is unconstitutional. On which point, it seems to me the 1st Circuit rather cavalierly moshes together equal protection precedents having to with the states and substantive due process ones applicable to the feds. Was there a a Supreme Court decision I missed incorporating the former into the latter? And, Bricker, could you give us a cite please to the Bruner case? I can’t find it and it’s not mentioned on the Wiki DOMA page.
But DOMA doesn’t forbid Massachusetts from doing anything.
It just says that the various federal benefits that usually accompany marriage won’t, if the marriage is a same-sex one.
Massachusetts can – and does – still offer marriage to same-sex couples. It was never within Massachusetts’ power to offer access to social security benefits, immigration status, or what have you. Those aren’t state powers, and Massachusetts never had them.
And his position is that it should be up to the states. His position is that there is no constitutional right to SSM. But he is against DOMA. Seems to me that DOMA is a political, not a constitutional issue (who gets federal benefits). The right to marry is a constitutional one, and Obama is against that. Or at least he hasn’t evolved that far yet.
Citizens v. Bruner upheld Nebraska’s constitutional amendment forbidding gay marriage. It’s purely a state’s issue–Can a state ban gay marriage?
DOMA, on the other hand, concerns how the federal government treats gay marriages at the case in hand. Can a same sex couple married in a gay marriage state receive federal benefits?
After reviewing both these cases I do not find the conflict; these two issue have not much in common other than both are under the umbrella of “gay rights.”
(I have always said the other part of DOMA violates the full faith and credit clause.)
There is more a conflict between Citizens United v. Bruner and the California Amendment 2 case (Sorry I’m always forgetting the case name there.)
But even those two have a factual distinction–In Amendment 2, California was in a position where gay marriage rights had been upheld by the courts and then taken away by the people. If I recall, the 9th circuit had mentioned that if the people had simply meant Amendment 2 as a correction of their Supreme Court, it would have stood; but they didn’t; they simply took away a right, that, according to the Ca. S. Ct. had already been in existence.
In the Nebraska case, there was no such previous determination that gay marriage was a constitutional right. If Citizens United instead was in Iowa, and after the court there held gay marriage to be protected, we’d have a similar situation to Ca’s Amendment 2.
I do believe they could.
As far as your every other day scheme for marriage, that won’t even stand up to rational basis scrutiny. Unless, that is, you have a rational basis for it.
That’s a fair distinction. I think discussions sometimes get complicated because DOMA has several sections, each accomplishing slightly different things.
But Bruner stands for the proposition that a state can refuse to so much as recognize same-sex marriage without offending either the DP or EP clauses. If that’s true, it’s hard to see how DOMA’s Sec. 3 itself offends either clause.
So while I agree that the two cases are not on point as to each other, it seems to me that they rest on a common underpinning, and must stand or fall together – is there any rationale that could uphold DOMA but overturn Bruner?
I agree conflation of the various issues results in confusion–confusion that sometimes is bad even here at the Straight Dope, and is downright ridiculous on forums like Yahoo! where I try to fight ignorance on the issues as well. Doesn’t do much good, it appears.
Is there any rationale that could uphold DOMA but overturn Bruner? It hurts my brain to even try to think of one and it’s too early in the morning for me, heh heh…and like Justice Scalia in the Obamacare case, I am pleading cruel and unusual punishment.
Well, it’s because, even allowing for the idea that it is within the powers of a state to determine whether to allow SSM or only OM/OWM, the “Definition of Marriage” section relates to what the Federal government is authorized to do in relation to claims of marital status.
Under the 14th Amendment, my wife and I are citizens of the United States married under the laws of our domiciliary state and hence entitled to any privileges and benefits which the Federal government may see fit to extend to married couples, such as the right to file jointly, the right to surviving spouse benefits under Social Security and Barb’s Federal retirement pension (such as it is), etc.
Similarly, Dr Matrix and Cajun Man are citizens of the United States married under the laws of our domiciliary state and hence entitled to … diddly squat, according to Section 3 of DOMA. But to the equal protection of the laws, under the 14th Amendment.
I truyst you follow the logic the rest of the way here…
I would follow the logic if only the 14th amendment could be invoked. As I read the case at hand, Baker precludes such invocation. As I see it, all the equal protection analysis that follows is dicta.
This case seems to me to be practically begging the Supreme Court to overturn Baker, the primary reason for such dicta.
There seems to me to be an angle around it, though–Baker concerns a state’s right to deny same-sex marriage. But the ability to deny does not preclude the ability to grant. Then the question becomes since the state has granted the right. So the state says it’s a right rather than denying the right. Our starting point in analysis is thus different.