# 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:** 7
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [June 30, 2013, 1:11am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/121 "2013-06-30T01:11:30Z")
> [@conservativerod](#): > > The liar, Obama, turned his back on DOMA for money. No surprise. I don’t especially care why he turned his back on it; I’m just glad – and, yes, unsurprised – that he did. ---
**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 30, 2013, 1:13am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/122 "2013-06-30T01:13:00Z")
> [@thelurkinghorror](#): > > You think the high potential for tax and welfare fraud with polygamy doesn’t play into it as well? I won’t get into why laws were passed against it, but today these are practical concerns, and even without legal marriage many FLDS types can exploit welfare. I think it’s clear both that polygamy was originally banned in reaction to Mormons, so for reasons of bigotry, but also that there are practical considerations brought up by polygamy that are not issues with same-sex marriage. These include: - Oppression of women. Polyamory, of course, is not inherently a problem for either gender, but in reality it is often a contributing factor. - The fact that all the marriage, divorce, and child welfare laws assume two adults per marriage. Working in polygamy is slightly more complicated than just removing gender. I’m sure there are other concerns. That said, I don’t have a problem with it, and I think it would be easily worked around if marriage was between a couple, but with the agreement of both they could add a third. If John and Frank and Mary want to be a couple, here’s how it would work: John marries Frank. {John & Frank} marries Mary. This is for the legal documents: they could all go at once in the ceremony. If Mary wants out later, she divorces {John & Frank}. If Frank wants out, he divorces John, effective dissolving John & Mary’s relationship, and the two of them can remarry if they so desire. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 30, 2013, 1:59am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/123 "2013-06-30T01:59:18Z")
> [@thelurkinghorror](#): > > You think the high potential for tax and welfare fraud with polygamy doesn’t play into it as well? I won’t get into why laws were passed against it, but today these are practical concerns, and even without legal marriage many FLDS types can exploit welfare. As opposed to what? A man who impregnates 5 women, produces a horde of children and never marries any of the children’s mothers? If that is not “welfare fraud” then neither is polygamy. ---
**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 30, 2013, 2:01am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/124 "2013-06-30T02:01:47Z")
> [@jtgain](#): > > They don’t and shouldn’t. But under the expansive reading put forth by \*\*Elendil’s Heir \*\*it is a “public…recording” of an “other state” and Alabama should honor my license to operate a brothel issued by Nevada. > > Further, in a few months my law license will be affirmed by the state supreme court (actually rubber stamped en masse from approval by the character and fitness commission, but a judicial act nonetheless). Under an expansive reading, why shouldn’t every state have to recognize my law license? I’m not suggesting that a Nevada license to operate a brothel would be sufficient to then open a brothel in Alabama. Licenses to operate particular businesses, or to practice law, are limited to the state which issued them. Brothels have long been illegal in most states; no state legislature can force all other states to permit the opening of a brothel elsewhere, and I know of no one who has seriously suggested that. Marriages in one state, however, have historically been recognized in every other state. DOMA marked a departure from that longstanding practice, and I agree with the SCOTUS majority that it was done out of a desire to hurt and disadvantage a minority group, that is, gay people, thus violating equal protection. ---
**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 30, 2013, 5:12pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/125 "2013-06-30T17:12:00Z")
> [@jtgain](#): > > They don’t and shouldn’t. But under the expansive reading put forth by \*\*Elendil’s Heir \*\*it is a “public…recording” of an “other state” and Alabama should honor my license to operate a brothel issued by Nevada. > > Further, in a few months my law license will be affirmed by the state supreme court (actually rubber stamped en masse from approval by the character and fitness commission, but a judicial act nonetheless). Under an expansive reading, why shouldn’t every state have to recognize my law license? That would be true if the requirements for operation of a brothel were identical in Alabama to those of Nevada, but they aren’t. Before you say “how does that differ from marriage?”, remember that a business licensing is a privilege and marriage is not. > [@conservativerod](#): > > The liar, Obama, turned his back on DOMA for money. No surprise. Um… what? Money? Whose? ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [July 1, 2013, 3:45am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/126 "2013-07-01T03:45:14Z")
I assume **c-rod** is talking about campaign contributions from pro-SSM folks. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 3, 2013, 7:03pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/127 "2013-07-03T19:03:51Z")
> [@Hamlet](#): > > 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. > > 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. Fundamental rights are those rights “deeply rooted in our history, traditions”, according to U.S. Supreme Court jurisprudence. For a liberty interest to be considered a fundamental right it must be “deeply rooted in our history, traditions”. Same sex marriage is not “deeply rooted in our history, traditions.” As a result, same sex marriage cannot be considered a fundamental right in the U.S. Constitution, at least not based on the Court’s prior jurisprudence. However, the Court’s prior precedent has not proven to be a deterrent to J. Kennedy as he refused to recognize the liberty to engage in same sex acts as a fundamental right but nevertheless recognized a protected liberty interest to engage in same sex acts in _Lawrence v. Texas_. However, I think the position stated, I could be wrong, was a preference of the Court to not conjure up any new rights which do not satisfy the “deeply rooted” test of the U.S. Supreme Court and allow the legislature to address the issue or amend the U.S. Constitution. Although, some would contend the preference is for the Court to not conjure up any new rights at all, fundamental or otherwise. In the _Windsor_ case, however, J. Kennedy avoids the issue of recognizing a liberty interest of same sex marriage. J. Kennedy invokes the case of _Bolling v. Sharpe_ to help decide the case. The _Bolling v. Sharpe_ decision held the 5th Amendment due process clause has principles of “equal protection” (the Court conjured up this notion from thin air, due process was never understood to have notions of “equal protection” prior to this decision). J. Kennedy now has no difficulty in holding DOMA section 3 violates the 5th Amendment’s Due Process Clause principles of equal protection and principles of federalism. It is curious how he reaches this conclusion without ever finding a right to same sex marriage in the federal constitution. I think J. Scalia’s dissent, some of it, is a very strong and substantive rebuke of the majority decision. Yes, I agree with you some of his dissent is just a diatribe but not all of it. J. Alito’s dissent is also very compelling. I think the majority reached the wrong result. ---
**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 3, 2013, 7:15pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/128 "2013-07-03T19:15:14Z")
> [@NotreDame05](#): > > Fundamental rights are those rights “deeply rooted in our history, traditions”, according to U.S. Supreme Court jurisprudence. For a liberty interest to be considered a fundamental right it must be “deeply rooted in our history, traditions”. Same sex marriage is not “deeply rooted in our history, traditions.” As a result, same sex marriage cannot be considered a fundamental right in the U.S. Constitution, at least not based on the Court’s prior jurisprudence. What? **Marriage** is what is “deeply rooted in our history.” **Marriage** is the right. Your statement suggests that you think same-sex marriage is a fundamentally different creature from opposite-sex marriage, but that is precisely the point: it is not. Gay people are people, and as such, they have access to the rights that other adults have. What is new is the explicit acknowledgement that gays are not merely behaviorally deviant straight people who need to be shunned / censured / beaten / incarcerated / killed into normalcy. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [July 3, 2013, 7:19pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/129 "2013-07-03T19:19:05Z")
Thank you for your concern. I’ll be sure to remember not to send an invitation to our wedding to you. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 3, 2013, 7:20pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/130 "2013-07-03T19:20:26Z")
> [@Dr.Drake](#): > > What? **Marriage** is what is “deeply rooted in our history.” **Marriage** is the right. Your statement suggests that you think same-sex marriage is a fundamentally different creature from opposite-sex marriage, but that is precisely the point: it is not. Gay people are people, and as such, they have access to the rights that other adults have. > > What is new is the explicit acknowledgement that gays are not merely behaviorally deviant straight people who need to be shunned / censured / beaten / incarcerated / killed into normalcy. Marriage of the same sex is not “deeply rooted in our history.” Marriage between people of the opposite sex is “deeply rooted in our history.” It is not correct to say, historically, marriage is “deeply rooted in our history.” The Court created this nightmare. I personally think there is an easier and more justifiable way to protect any marriage and it is through the 9th Amendment. Randy Barnett wrote a very strong and compelling law review article entitled “The Ninth Amendment: It Means What It Says.” I think all of the liberty interests recognized by the Court over the years are adequately and justifiably protected by the 9th Amendment. This dispenses with the notion of fundamental rights and “deeply rooted” analysis. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 3, 2013, 7:22pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/131 "2013-07-03T19:22:14Z")
Marriage of people who own smartphones is also not deeply rooted. Therefore, if you own a smartphone, you have no substantive due process right to marriage. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 3, 2013, 7:22pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/132 "2013-07-03T19:22:37Z")
> [@NotreDame05](#): > > Fundamental rights are those rights “deeply rooted in our history, traditions”, according to U.S. Supreme Court jurisprudence. For a liberty interest to be considered a fundamental right it must be “deeply rooted in our history, traditions”. This sounds like a compelling argument for the right to own slaves, another institution deeply rooted in our history and traditions. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 3, 2013, 7:23pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/133 "2013-07-03T19:23:59Z")
> [@Fear\_Itself](#): > > This sounds like a compelling argument for the right to own slaves, another institution deeply rooted in our history and traditions. That would be a compelling argument if we ignored the amendment prohibiting slavery. So, no this is not a “compelling argument” for the right to own slaves. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 3, 2013, 7:24pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/134 "2013-07-03T19:24:59Z")
> [@Richard\_Parker](#): > > Marriage of people who own smartphones is also not deeply rooted. Therefore, if you own a smartphone, you have no substantive due process right to marriage. This might make sense if we were talking about smart phones marrying smart phones. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 3, 2013, 7:26pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/135 "2013-07-03T19:26:12Z")
> [@NotreDame05](#): > > That would be a compelling argument if we ignored the amendment prohibiting slavery. So, no this is not a “compelling argument” for the right to own slaves. At the time that amendment was being debated, would it have been a compelling argument? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 3, 2013, 7:27pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/136 "2013-07-03T19:27:51Z")
> [@NotreDame05](#): > > This might make sense if we were talking about smart phones marrying smart phones. I was hoping this little hypothetical would help you along the path to seeing the error of your argument. I guess not. So I’ll just say it: the issue is what is and what is not an essential aspect of the deeply rooted right to marriage. Assuming that opposite gender is essential just begs the question. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 3, 2013, 7:29pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/137 "2013-07-03T19:29:13Z")
> [@Fear\_Itself](#): > > At the time that amendment was being debated, would it have been a compelling argument? No because under the U.S. Constitution slavery was already recognized as constitutionally protected prior the adoption/ratification of the amendment. The fundamental rights doctrine was a methodology used by the Court to protect rights not specifically enumerated or specifically protected by the constitution, i.e. unenumerated rights. The U.S. Constitution, prior to the 13th Amendment, was recognized and understood to protect the right of slavery. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 3, 2013, 7:30pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/138 "2013-07-03T19:30:51Z")
> [@Richard\_Parker](#): > > I was hoping this little hypothetical would help you along the path to seeing the error of your argument. I guess not. So I’ll just say it: the issue is what is and what is not an essential aspect of the deeply rooted right to marriage. Assuming that opposite gender is essential just begs the question. No it didn’t help because, well, the hypothetical wasn’t analogous to what we are presently discussing. I didn’t conjure up the fundamental rights doctrine, the Court did. It is their fault it is a messy jurisprudence. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 3, 2013, 7:32pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/139 "2013-07-03T19:32:55Z")
> [@NotreDame05](#): > > No it didn’t help because, well, the hypothetical wasn’t analogous to what we are presently discussing. > > I didn’t conjure up the fundamental rights doctrine, the Court did. It is their fault it is a messy jurisprudence. I’m intimately familiar with the doctrine (which, by the way, was not the sole basis for _Windsor_). But you’re still missing the point about what is and what is not essential to the right of marriage. I don’t know how to make it clearer. ---
**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 3, 2013, 7:34pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/140 "2013-07-03T19:34:54Z")
> [@NotreDame05](#): > > Marriage of the same sex is not “deeply rooted in our history.” Marriage between people of the opposite sex is “deeply rooted in our history.” It is not correct to say, historically, marriage is “deeply rooted in our history.” I can agree to disagree, but this statement suggests you did not understand the point I was making. I will be clearer. - Marriage is deeply rooted in our history and traditions. - It is an insitution which (among other things) historically protects the transfer of property both at the time of marriage and through inheritance by “legitimate” children - Marriage also serves to create identifiable social units based around the household - Marriage has historically and traditionally been one man, one woman (since the middle ages), and via the church (since the late middle ages among the middle and upper classes). Gays, however, are NOT traditional. Homosexual behavior **is** traditional, but before the modern era it was understood as a sexually deviant and immoral behavior. There was no same-sex marriage because the reasons marriage existed did not apply to gays—there were no gays in the modern sense.\* Only men who slept with men and women who slept with women, and this behavior was not condoned in public. There’s a lot of history on both subjects (gays and marriage). Look into it. \*Obviously human biology has not changed, only how we express our desires in terms of behavior and identity. Other people have expressed this a lot better than I think I’m doing here. [Previous page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=6) [Next page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=8)