# 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:** 3
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 26, 2013, 6:19pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/41 "2013-06-26T18:19:23Z")
> [@tomndebb](#): > > Now that the SCOTUS has removed the arbitrary federally imposed sanctions against states that recognize Same Sex marriage, I am hoping that the movement will shift to getting the states to recognize SSM via the legislatures so that we are not hearing about “judicial activism” decades from now. (I’d have preferred that DOMA would have been repealed by Congress, for the same reason, but I can live with a decision that asserts that DOMA was unfair in setting up a two tier recognition of rights between the Feds and the states.) How long should minorities have to wait until they can go to the courts for relief from unconstitutional treatment? I too, and I think everyone would, prefer that the legislature take care of these problems by getting rid of bigoted legislation, but that’s not going to happen too quickly. Slavery was outlawed, yet the Southern legislators found new and fun ways to legalize their discrimination against blacks, from Jim Crow to anti-miscegenation to educational opportunities. Should blacks and the courts kept waiting until those white majorities and their legislators finally decided that maybe they were wrong? ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [June 26, 2013, 6:21pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/42 "2013-06-26T18:21:36Z")
> [@Eva\_Luna](#): > > [Here’s one analysis](http://immigrationequality.org/2013/06/the-end-of-doma-what-your-family-needs-to-know/) on SSM and immigration in light of today’s decision, though I don’t know that I agree with all of it. What, in your expert opinion, do you disagree with? (FTR, I was cheering as I read it) ---
**Author:** ![thelurkinghorror](https://avatars.discourse-cdn.com/v4/letter/t/7c8e57/32.png) [@thelurkinghorror](https://boards.straightdope.com/u/thelurkinghorror)\ **Post date:** [June 26, 2013, 6:32pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/43 "2013-06-26T18:32:03Z")
Can someone explain Windsor’s case? Things I’m reading are making it like her estate taxes would be refunded. Is there a mechanism where one decision automatically makes that happen, or does that require some legal wrangling, that is now made possible by the decision? Does this say anything about income taxes as MFJ, if recognized in the state they reside? Normally, tax code doesn’t change overnight, and at least for income taxes, sometimes congress is still debating it up to the last minute. ---
**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:** [June 26, 2013, 6:35pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/44 "2013-06-26T18:35:29Z")
The estate tax refund claim was the basis of the underlying lawsuit, so yes, she’ll get them back automatically. And yes, married filing benefits will now be available to same-sex couples, though the IRS will have to modify its regulations first. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [June 26, 2013, 6:43pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/45 "2013-06-26T18:43:03Z")
> [@Hamlet](#): > > Since there isn’t a separate thread on the Prop 8 ruling yet, and I’m out of time, I’ll simply add that the biggest surprise in both these cases, the one thing that has me staring shocked at the opinion, is this part: > > “ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined.” I’d be very interested in court watchers to comment on this. This is not the split I was expecting. > [@tomndebb](#): > > The Prop 8 decision is liable to cause future problems. Rejected because an “outside group” had no standing to compel the state to defend a referendum against a court decision, if the next California election brings in a pro-Prop 8 governor, he could order his AG to sue to overturn the Ninth Court’s decision, and he (or she) will have standing. That’s a good point, but I don’t think California will be electing any governors who would do that. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [June 26, 2013, 6:45pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/46 "2013-06-26T18:45:35Z")
> [@tomndebb](#): > > The Prop 8 decision is liable to cause future problems. Rejected because an “outside group” had no standing to compel the state to defend a referendum against a court decision, if the next California election brings in a pro-Prop 8 governor, he could order his AG to sue to overturn the Ninth Court’s decision, and he (or she) will have standing. Assuming that a pro-Prop 8 governor did get elected - which would only happen if he or she never mentioned the issue - the Court would have to agree to hear it again. That would force them to rule on the constitutionality of anti-SSM laws, which they clearly don’t want to do. We could theoretically have a proposition repealing Prop 8, but that would be a bad idea since anti-Prop 8 people, having effectively won already, wouldn’t show up in proportion to their numbers. I think this one is over. ---
**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:** [June 26, 2013, 6:49pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/47 "2013-06-26T18:49:29Z")
> [@etv78](#): > > What, in your expert opinion, do you disagree with? (FTR, I was cheering as I read it) My best guess is that the SSM will still have to be legally valid where the immigrant spouse intends to reside (see my posts earlier in the thread). But that’s just an educated guess, and all sorts of analyses are flying through my work email today from all sorts of very well-informed people. We’ll have to see how it shakes out. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 26, 2013, 7:01pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/48 "2013-06-26T19:01:27Z")
> [@Hamlet](#): > > Why, O why do they allow Kennedy to write the opinion in these kinds of cases? He was the senior Associate Justice in the majority, so he got to assign it to himself. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 26, 2013, 7:06pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/49 "2013-06-26T19:06:57Z")
> [@Hamlet](#): > > Do you not see the circular reasoning and troubling aspects of defining a right only by those who can enjoy it? Saying “well the right to marriage is fundamental, unless you want to marry someone of the same sex” is akin to saying “the right to marriage is fundamental, unless you want to marry someone of a different race”. So what? I am not arguing against SSM. I am noting, against Valteron, that there is a difference in how “deeply rooted” various beliefs might be. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 26, 2013, 7:11pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/50 "2013-06-26T19:11:50Z")
> [@Hamlet](#): > > How long should minorities have to wait until they can go to the courts for relief from unconstitutional treatment? I too, and I think everyone would, prefer that the legislature take care of these problems by getting rid of bigoted legislation, but that’s not going to happen too quickly. Slavery was outlawed, yet the Southern legislators found new and fun ways to legalize their discrimination against blacks, from Jim Crow to anti-miscegenation to educational opportunities. Should blacks and the courts kept waiting until those white majorities and their legislators finally decided that maybe they were wrong? I have not argued that these issues should not be taken to court. I have simply noted that there will be fewer social issues, in the future, if they are not decided only by the courts. I expressed a desire for a particular direction toward a particular result. I made no complaint against those who have sought judicial relief [saying they] are wrong. I am encouraging everyone who supports SSM to lobby their legislatures (or get out and draw up their referenda petitions), rather than sitting around waiting for some other person to drag the issue into court. ---
**Author:** ![Blakeyrat](https://avatars.discourse-cdn.com/v4/letter/b/ecd19e/32.png) [@Blakeyrat](https://boards.straightdope.com/u/Blakeyrat)\ **Post date:** [June 26, 2013, 7:17pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/51 "2013-06-26T19:17:36Z")
> [@Eva\_Luna](#): > > My most burning practical question of the moment is what this will mean in the near term for same-sex immigration to the U.S. My best guess is that it will work like first cousin marriage (which is legally valid in some states, but not all): if the marriage is legally valid in the state where the couple is residing, it will be valid for U.S. immigration purposes. How this will shake out, regulatory-wise, I have no clue, but it will take some time and be pretty messy in the meantime. > > Eva Luna, Immigration Paralegal You realize many States already allow same-sex marriages? And that problem has been solved for years? ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [June 26, 2013, 7:27pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/52 "2013-06-26T19:27:11Z")
Welcome news, and a great day for our country. I would’ve been with the majority on the DOMA decision, but with the minority on the Prop 8 decision. I agree with the Supreme Court of California that the backers of Prop 8 could step into the shoes of the governor and attorney general and have standing to defend the proposition, since state officials refused to do so; then I would’ve struck down Prop 8 as a violation of equal protection. But I understand the court’s apparent reluctance to issue a sweeping decision on all same-sex marriage bans everywhere, given the already-shifting tide in public opinion and state laws. ---
**Author:** ![Valteron](https://avatars.discourse-cdn.com/v4/letter/v/f17d59/32.png) [@Valteron](https://boards.straightdope.com/u/Valteron)\ **Post date:** [June 26, 2013, 7:32pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/53 "2013-06-26T19:32:07Z")
> [@tomndebb](#): > > So what? I am not arguing against SSM. I am noting, against Valteron, that there is a difference in how “deeply rooted” various beliefs might be. I agree that various beliefs may be more “deeply rooted” than others, and I am NOT in this posting alleging that Tomndebb said SSM has no roots at all. But TD’s comments got me wondering. I have noticed that the “deeply roooted” argument cuts both ways on many issues. For example, it might have been reasonably argued by the SCOTUS when they were asked to strike down laws against interracial marriage in the 1960s that the ban was an ancient and well-established taboo, that was even supported by Abraham Lincoln (_vide_ the Lincoln-Douglas debates of 1858, in which Honest Abe said interreacial marraige should remain illegal.) You could reasonably have said in the 1960s that the ban on interracial marriage had been in place in many US states for CENTURIES, that it was fully supported by a marority of citizens in those states. Talk about “deeply rooted”! On the other hand, how deep is “deeply”? I have a tree outside my home that I planted as a 5 cm. sprout the day in 2003 that the Ontario Court of Appeal changed Canada’s marriage law to include SSM. That tree is now 10 years old, has a trunk that I can barely get both hands around, and I am sure, has deep roots. Maybe not like the 300-year-old oak in the forest nearby, but deep roots all the same. Add to this the fact that some 15 sovereign countries and a dozen or more US States and non-national jurisdictions like Mexico City and states in Brazil now have SSM, and you realize that several hundred million people live in states where SSM is legal (or soon will be as in the case of the UK). Ten years, states containing hundreds of millions of citizens. To parody Churchill, “Some roots!” ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 26, 2013, 7:37pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/54 "2013-06-26T19:37:15Z")
> [@tomndebb](#): > > So what? I am not arguing against SSM. I took your statement: "“but the tradition of marriage as only heterosexual is, (unlike monoracial marriage), “deeply rooted.”” meant that you believed that right to marriage is fundamental only to heterosexual couples, and did not apply to same sex couples. If I misunderstood your stance on the fundamental nature of the right to marriage including same sex couples, I apologize. > [@tomndebb](#): > > I have not argued that these issues should not be taken to court. I have simply noted that there will be fewer social issues, in the future, if they are not decided only be the courts. Again, I took your statement that “I am hoping that the movement will shift to getting the states to recognize SSM via the legislatures” was an indication that you thought that the courts were being somehow not restrained enough in deciding these cases. We all agree (and oddly enough a great majority of SSM advocates also work for) that the legislatures should be the group at the forefront of this battle, though. Maybe I’ve read too much into your posts, or I’m misremembering prior posts of yours about this issue. If so, again, I apologize. ---
**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:** [June 26, 2013, 7:46pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/55 "2013-06-26T19:46:28Z")
> [@Pleonast](#): > > That’s a good point, but I don’t think California will be electing any governors who would do that. > [@Voyager](#): > > Assuming that a pro-Prop 8 governor did get elected - which would only happen if he or she never mentioned the issue - the Court would have to agree to hear it again. That would force them to rule on the constitutionality of anti-SSM laws, which they clearly don’t want to do. _ahem_ NO. > [@Really\_Not\_All\_That\_Bright](#): > > _Res iudicata_ bars relitigation of the Prop 8 issue; it has already been decided on its merits, just not by SCOTUS. ---
**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:** [June 26, 2013, 7:46pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/56 "2013-06-26T19:46:48Z")
> [@Blakeyrat](#): > > You realize many States already allow same-sex marriages? And that problem has been solved for years? I do realize that, thanks. To me the parallel is cousin marriage, and if the Feds agree with me, it would mean that they would only allow SSM for immigration purposes if the couple intends to reside in a state where SSM is recognized. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2013, 8:09pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/57 "2013-06-26T20:09:09Z")
Kennedy’s opinion was a nightmare for all of the reasons that Scalia pointed out. Either say that sexual orientation rises to strict scrutiny or not. The whole blather about hatred and animus and all of that is no matter if it is just rational basis. If it is just rational basis, a state can hate gay people just like it would hate murderers. Kennedy’s opinion would get a D on any law school final in the country. He talks about federalism, then the 5th amendment, and animus, and never lays a standard of review and doesn’t limit his holding, nor does he expand it. Scalia was right. In Lawrence, Kennedy assured everyone that his opinion was only limited to private sexual conduct, not marriage. Now he assures us that this opinion is limited to the feds where states have approved, not a decision on whether a state can ban SSM. It’s an absolute bullshit lie, and Scalia was, IMHO, right for his blistering dissent. I sometimes think his dissents go too far, but not here. The rationale (if anyone can figure out what in the hell it was) behind this decision is an embarrassment for the Court. ---
**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:** [June 26, 2013, 8:15pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/58 "2013-06-26T20:15:04Z")
> [@Eva\_Luna](#): > > I do realize that, thanks. To me the parallel is cousin marriage, and if the Feds agree with me, it would mean that they would only allow SSM for immigration purposes if the couple intends to reside in a state where SSM is recognized. This is fascinating. So, as an American who resides and married abroad and maintains no ties of residence to any US state, whether it’s legal or not would depend on my intended destination? If I had, say, a job waiting in Philadelphia (where I understand SSM is illegal) but claimed we’d live in New Jersey… wow, what a headache. I imagine this is going to have to get sorted on a federal level sooner or later. Equally, I imagine this would give the individuals processing applications some wiggle room to express their personal discrimination. Not that I expect that, but I can imagine it happening. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 26, 2013, 8:15pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/59 "2013-06-26T20:15:57Z")
> [@Valteron](#): > > But TD’s comments got me wondering. I have noticed that the “deeply roooted” argument cuts both ways on many issues. True. And aside from examining personal reactions to proposed changes, should carry little weight. Heterosexual marriage is as ancient as humanity, as nearly as we can tell. In contrast, miscegenation was banned (or even recognized as a possible reality) in some states in one nation for a period of fewer than 300 years. I do not regard a practice/prohibition that was never universal to be “deeply rooted.” Whether or not something is “deeply rooted” does nothing to make something right. Xenophobia appears to be pretty deeply rooted in humanity, extending so far back that our ape cousins share the trait. That hardly makes laws based on it good or correct. ---
**Author:** ![Blakeyrat](https://avatars.discourse-cdn.com/v4/letter/b/ecd19e/32.png) [@Blakeyrat](https://boards.straightdope.com/u/Blakeyrat)\ **Post date:** [June 26, 2013, 8:19pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/60 "2013-06-26T20:19:41Z")
> [@Eva\_Luna](#): > > I do realize that, thanks. To me the parallel is cousin marriage, and if the Feds agree with me, it would mean that they would only allow SSM for immigration purposes if the couple intends to reside in a state where SSM is recognized. I misunderstood what you meant by “US immigration purposes.” [Previous page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=2) [Next page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=4)