# DOMA struck down in a 5-4 decision **URL:** \ **Category:** Great Debates\ **Created:** [June 26, 2013, 3:06pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962 "2013-06-26T15:06:52Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 8, 2013, 1:24pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/181 "2013-07-08T13:24:11Z")
Hey, this stuff is real! Just got back from vacation to find the following email in my in-box: > [@](#): > > On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. As a result of this decision, the United States Office of Personnel Management (OPM) is now able to extend benefits to Federal employees and annuitants who have legally married a spouse of the same sex. A special Open Season beginning June 26, 2013, until August 26, 2013 has been established for most benefits. > > Below is a summary of the benefits that are now extended. Additional information can be found in OPM’s memo, Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and Their Families at: [link], and through OPM’s Benefits Administration Letter, Coverage of Same Sex Spouses at: [link]. For additional information please contact your Servicing Human Resources Office. > > Health Insurance (FEHB): All legally married same-sex spouses will now be eligible family members under a Self and Family enrollment. In addition, the children of same-sex marriages will be treated just as those of opposite-sex marriages and will be eligible family members according to the same eligibility guidelines. This includes coverage for children of same-sex spouses as stepchildren. > > Life Insurance (FEGLI): All legally married same-sex spouses and children of legal same-sex marriages are now eligible family members under the FEGLI Program, which means that employees may add coverage for a same-sex spouse and any newly eligible children under Option C. > > Dental and Vision Insurance (FEDVIP): All legally married same-sex spouses will now be eligible family members under a Self and Family enrollment or a Self Plus One enrollment. > > Long-Term Care Insurance (FLTCIP): All legally married same-sex spouses can now apply for long-term care insurance under FLTCIP, with abbreviated underwriting. > > Retirement: All retirees who are in legal same-sex marriages will have two years from the date of the Supreme Court’s decision (i.e., June 26, 2015) to inform OPM that they have a legal marriage that now qualifies for recognition and elect any changes to their retirement benefits based on their recognized marital status. > > Flexible Spending Accounts (FSA): All employees who are in legal same-sex marriages will now be able to submit claims for medical expenses for their same-sex spouse and any newly qualifying (step)children to their flexible spending program. It brought a smile to my face to see that the Administration isn’t wasting any time in applying the DOMA repeal to its employee benefit policies. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 8, 2013, 7:28pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/182 "2013-07-08T19:28:21Z")
> [@Hershele\_Ostropoler](#): > > What is the distinction? How do these differ so that one is “deeply rooted” and the other isn’t? Why is different-sex marriage in particular deemed deeply rooted, and not marriage in general? Isn’t the answer, essentially, marriage in general is not deeply rooted by virtue of the fact there is a long history in this country of the state precluding people from marriage on the basis of age, blood relation, sex of the partner, etcetera. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 8, 2013, 7:41pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/183 "2013-07-08T19:41:41Z")
… and race. Do you think the Constitution prohibits anti-miscegenation laws? ---
**Author:** ![fumster](https://avatars.discourse-cdn.com/v4/letter/f/e9c0ed/32.png) [@fumster](https://boards.straightdope.com/u/fumster)\ **Post date:** [July 8, 2013, 8:13pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/184 "2013-07-08T20:13:29Z")
nm ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 8, 2013, 9:30pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/185 "2013-07-08T21:30:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > … and race. Do you think the Constitution prohibits anti-miscegenation laws? That doesn’t go so much to marriage as it does a classification in law based upon race. Race is the penultimate 14th amendment equal protection classification because it is exactly what the 14th amendment was written to protect. Any classification based upon race (no matter what the underlying law) must pass strict scrutiny, which cannot be found (generally in anything) in an anti-miscegenation law. For example, imagine a municipal law that said on alternate days whites can use the city tennis courts from 8a.m. to noon, and blacks from noon to 4pm. Is there anything wrong with this? Tennis isn’t a fundamental right and both races are treated absolutely equally as they have the same number of hours at the same time as each other. However, because race is used at all, it will be struck down because the law isn’t narrowly tailored to serve a compelling government interest. Does sexual orientation rise to that level? I wish Kennedy would answer that question instead of dancing around it. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 8, 2013, 9:37pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/186 "2013-07-08T21:37:49Z")
> [@DMC](#): > > You really want to argue that justice would not exist were abortion to be made illegal? Or perhaps you think that birth control is deeply rooted in this Nation’s history? No, and it’s hard for anyone else to argue that those are fundamental rights either. Even in Casey, Kennedy, Souter, and O’Connor justified Roe v. Wade on stare decisis grounds instead of agreeing that it was a good decision. Roe has been cited by many legal scholars as the most poorly written legal rationale for a decision in the Court’s history. This is exactly the reason the Warren Court (and for a short time thereafter) faces much criticism: it found rights out of whole cloth where none really existed. The Court since then has backed off of finding rights in penumbras, and rightfully so. Such a jurisprudence can find a right where ever 5 justices find it. It’s no standard at all. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 8, 2013, 10:48pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/187 "2013-07-08T22:48:15Z")
> [@jtgain](#): > > No, and it’s hard for anyone else to argue that those are fundamental rights either. Even in Casey, Kennedy, Souter, and O’Connor justified Roe v. Wade on stare decisis grounds instead of agreeing that it was a good decision. Roe has been cited by many legal scholars as the most poorly written legal rationale for a decision in the Court’s history. You are aware that that came straight from your cite, correct? The one you are using to justify your definition of what constitutes a fundamental right. So, where would you like to send me next to see this “the Supreme Court has held and affirmed that whether a particular right is protected under the due process clause and subject to strict scrutiny, it must be one that is both ‘deeply rooted in the nation’s history and traditions’ and also ‘implicit in the concept of ordered liberty’” nonsense? ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [July 9, 2013, 3:49am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/188 "2013-07-09T03:49:39Z")
> [@NotreDame05](#): > > Isn’t the answer, essentially, marriage in general is not deeply rooted by virtue of the fact there is a long history in this country of the state precluding people from marriage on the basis of age, blood relation, sex of the partner, etcetera. I guess the existence of laws against fraud proves free speech isn’t deeply rooted either. Moreover, laws specifying that marriage involved one man and one woman only started appearing after _Baehr v Lewin_ > [@jtgain](#): > > The Court since then has backed off of finding rights in penumbras, and rightfully so. Such a jurisprudence can find a right where ever 5 justices find it. Isn’t the whole point of the 9th Amendment to encourage an expansive view of what rights people have? ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 9, 2013, 1:21pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/189 "2013-07-09T13:21:14Z")
> [@Hershele\_Ostropoler](#): > > I guess the existence of laws against fraud proves free speech isn’t deeply rooted either. > > Moreover, laws specifying that marriage involved one man and one woman only started appearing after _Baehr v Lewin_ > > Isn’t the whole point of the 9th Amendment to encourage an expansive view of what rights people have? Free speech is not quite analogous since, well, the U.S. Constitution expressly protects the right of free speech. What we are discussing, however, are unenumerated rights and among those unenumerated rights what is the criterion for protecting some of those rights. Marriage in general is not “deeply rooted” because, well, people could not marry anyone they desired. As I stated before, age limitations, familial limitations, race limitations, same sex prohibitions, restrictions on the number of spouses, demonstrate marriage in general is not deeply rooted. What was “deeply rooted” was two people of the opposite sex, of a certain age, and not closely related, could marry. > [@](#): > > Isn’t the whole point of the 9th Amendment to encourage an expansive view of what rights people have? Yes, but we aren’t discussing the 9th Amendment. We are discussing substantive due process and the Court’s rationale. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 9, 2013, 1:43pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/190 "2013-07-09T13:43:24Z")
> [@jtgain](#): > > That doesn’t go so much to marriage as it does a classification in law based upon race. Sure it does. _Loving_ wasn’t decided solely on equal protection grounds. > [@](#): > > These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. > > Loving v. Virginia, 388 U.S. 1, 12 (1967) ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 9, 2013, 3:25pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/191 "2013-07-09T15:25:31Z")
> [@Czarcasm](#): > > [This Wiki article](http://en.wikipedia.org/wiki/Anti-miscegenation_laws_in_the_United_States) is a good place to start. Those types of laws weren’t rare: All right. From what I can discern, there were at least 11 states permitting interracial marriage prior to 1887, and another 8 which didn’t pass any law prohibiting interracial marriage. A reasonable argument could be made interracial marriage is deeply rooted as much as it isn’t deeply rooted in the nation’s history. I think the Court in _Loving_ can appropriately be criticized for just conjuring up a right to marriage in the 14th Amendment Due Process Clause. The words due process refers to procedural protections and does not have a substantive component. The plain text of the 14th Amendment clearly states the government can deprive people of liberty so long as due process is given. ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [July 9, 2013, 11:12pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/192 "2013-07-09T23:12:41Z")
> [@NotreDame05](#): > > Marriage in general is not “deeply rooted” because, well, people could not marry anyone they desired. As I stated before, age limitations, familial limitations, race limitations, same sex prohibitions, restrictions on the number of spouses, demonstrate marriage in general is not deeply rooted. Which same-sex prohibitions are those? Courts in several states pretty consistently ruled that there weren’t any. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 9, 2013, 11:22pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/193 "2013-07-09T23:22:04Z")
> [@NotreDame05](#): > > All right. From what I can discern, there were at least 11 states permitting interracial marriage prior to 1887, and another 8 which didn’t pass any law prohibiting interracial marriage. A reasonable argument could be made interracial marriage is deeply rooted as much as it isn’t deeply rooted in the nation’s history. What? If it was banned in half the country, how _could_ it be deeply rooted? You would probably find that a similar number of states did not explicitly prohibit the consumption of heroin. Does that make its use “deeply rooted”? ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 9, 2013, 11:45pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/194 "2013-07-09T23:45:41Z")
> [@NotreDame05](#): > > All right. From what I can discern, there were at least 11 states permitting interracial marriage prior to 1887, **and another 8 which didn’t pass any law prohibiting interracial marriage**. A reasonable argument could be made interracial marriage is deeply rooted as much as it isn’t deeply rooted in the nation’s history. Well, if we’re using that metric, then same sex marriage is deeply rooted, as very few states passed a law prohibiting it prior to the last 15 years or so. While I’m not stupid enough to think that most states would have gladly handed out licenses to Bob and Joe, the fact is that the wording of almost all marriage laws prior to the big brouhaha over the last decade or so had nothing barring it from happening. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [July 9, 2013, 11:50pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/195 "2013-07-09T23:50:08Z")
> [@DMC](#): > > While I’m not stupid enough to think that most states would have gladly handed out licenses to Bob and Joe. . . How about [Michael and Pat](http://www.bbc.co.uk/news/magazine-23159390)? (Once, for 20 minutes, in 1971. . . .) Heartwarming quote: “The couple still live together in Minneapolis. They consider themselves legally married as their licence has never been revoked.” It would be interesting to see if the state and federal governments now considered them married. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [July 11, 2013, 6:59am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/196 "2013-07-11T06:59:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Sure it does. _Loving_ wasn’t decided solely on equal protection grounds. But see [Post #158](http://boards.straightdope.com/sdmb/showpost.php?p=16446265&postcount=158). ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [July 12, 2013, 4:02am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/197 "2013-07-12T04:02:18Z")
By the way, the Minnesota Supreme Court in [Baker v. Nelson](http://www.bc.edu/bc_org/avp/law/st_org/lambda/baker.htm) quoted in full the second paragraph of _Loving’s_ fundamental rights holding, interpreting it as based on equal protection. That decision, of course, was affirmed by the U.S. Supreme Court [per curiam](http://www.scribd.com/doc/21017674/Baker-v-Nelson-409-U-S-810-1972). ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [July 18, 2013, 3:27pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/198 "2013-07-18T15:27:15Z")
:: bump :: [Here’s the first Board of Immigration Appeals decision](http://www.justice.gov/eoir/vll/intdec/vol26/3787.pdf)I’ve seen that indicates how the Dept. of Justice and USCIS might handle SSM for immigration purposes. If they stay consistent, it looks like they aren’t following the first-cousin marriage model – if the marriage is valid where celebrated, it should be valid for U.S. immigration purposes according to this decision. Of course, consistency isn’t always one of the hallmarks of immigration adjudications. I have to say I’m surprised how quickly the BIA acted on the change in law on this one. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [July 18, 2013, 3:47pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/199 "2013-07-18T15:47:28Z")
Thank you, **Eva Luna**! I note that this doesn’t discuss marriages performed abroad, but given the Windsor case I assume they would accept Canadian marriages. ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [July 18, 2013, 4:25pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/200 "2013-07-18T16:25:50Z")
> [@Dr.Drake](#): > > I note that this doesn’t discuss marriages performed abroad, but given the Windsor case I assume they would accept Canadian marriages. One would certainly hope. I’m sure you in particular would, too 🙂 [Previous page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=9) [Next page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=11)