# 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:** 9
**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 6, 2013, 4:53pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/161 "2013-07-06T16:53:27Z")
> [@jtgain](#): > > Opposite sex marriage is deeply rooted in our nation’s history. SSM is not. 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? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 6, 2013, 8:05pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/162 "2013-07-06T20:05:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Speaking for myself, I think the “deeply rooted” fundamental rights test is stupid in the first place - but if we are going to use it, let us do so logically. > > The fact that a court clerk would not have issued a marriage license is not the same as a prohibition that actually exists. On the other hand, polygamous, incestuous and miscegenative marriages have been prohibited in explicitly stated expressions of policy (at common law, in the statutes, and even in constitutional amendments.) > > What does that tell you? Well, if it isn’t “deeply rooted” then it certainly can’t be something the constitution considers “fundamental.” If you throw away that test then any right is fundamental simply because 5 justices think so, and that is clearly nothing any of us want. I think that the fact that a clerk would not have issued a marriage license to a same sex couple even though a specific law didn’t exist is concrete evidence that the right was not deeply rooted and not fundamental. The fact that is was so clearly assumed that marriage was between opposite sex couples that we didn’t even need a law to state it is excellent evidence that the 14th amendment certainly doesn’t confer such a right. For example, Virginia had no laws against the purchase, possession or use of tobacco products by minors until 1985 (and the age was 16 until 1992). That doesn’t mean that 4 year olds were smoking or that Virginia didn’t consider it improper for minors to use tobacco. You can imagine a retailer in 1980 telling a 10 year old that he’s too young for a pack of smokes, right? So the absence of a law doesn’t show an affirmative fundamental, deeply rooted right for any minor, in any circumstance, to purchase or use tobacco. It shows a simple indifference, or a belief that parents or other adults would enforce it as a social construct. IOW, I think it is a stronger argument that the prohibition against SSM was enforced without legal consequences because since it was assumed that these licenses wouldn’t be issued, it makes it even harder to argue that the right was so fundamental in nature (or deeply rooted). > [@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? Because if you look at the records before 2004, you would see that countless thousands of opposite sex couples were legally married while a big goose egg zero same sex couples were legally married. Doesn’t sound like SSM is something rooted in history. Of course, no smartphone users were married before 1990, but that has no relevance to the marriage license. If in 1988, a court clerk, and any official all the way up to a Supreme Court justice was shown that a marriage applicant had this new-fangled "smart phone (stolen via time machine) there would be interest in the device, but no concern about a marriage license. If in 1988, two men applied for a marriage license, it would have been universally rejected everywhere in the world as applied to that particular marriage license. It’s a clear distinction, and I’m not sure why it is so debatable. Your side has many arguments about how society has evolved to believe that SSM is acceptable and should pursue it, and you are winning it, through the democratic process. Saying that it is an implicit right in the constitution comes across as silly. ---
**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 6, 2013, 10:47pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/163 "2013-07-06T22:47:19Z")
What I hear when someone tries to make this ridiculous “tradition” argument: “You aren’t good enough to actually be a full citizen. Go back to the closet, faggot.” ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 6, 2013, 11:01pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/164 "2013-07-06T23:01:55Z")
> [@jayjay](#): > > What I hear when someone tries to make this ridiculous “tradition” argument: > > “You aren’t good enough to actually be a full citizen. Go back to the closet, faggot.” Of course you hear that. Nobody could possibly disagree with you because your beliefs are absolutely correct in every way. On the off chance someone does disagree with you, it can’t be a reasonable one, and must certainly be borne of hatred and ill will. ---
**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 6, 2013, 11:06pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/165 "2013-07-06T23:06:02Z")
There is no such thing as a good-faith opposition to marriage equality. Period. The same way there is no such thing as a good-faith opposition to racial equality. It’s all bigotry. ---
**Author:** ![computergeek](https://avatars.discourse-cdn.com/v4/letter/c/e56c9b/32.png) [@computergeek](https://boards.straightdope.com/u/computergeek)\ **Post date:** [July 6, 2013, 11:12pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/166 "2013-07-06T23:12:32Z")
> [@jtgain](#): > > Well, if it isn’t “deeply rooted” then it certainly can’t be something the constitution considers “fundamental.” If you throw away that test then any right is fundamental simply because 5 justices think so, and that is clearly nothing any of us want. > > \>snip\< > It’s a clear distinction, and I’m not sure why it is so debatable. Your side has many arguments about how society has evolved to believe that SSM is acceptable and should pursue it, and you are winning it, through the democratic process. Saying that it is an implicit right in the constitution comes across as silly. The real answer is that society changes over time. Women were second class citizens through much of history and then in America, they got the right to vote and eventually became equal (for the most part) to men. Blacks were considered inferior through much of American history, including being enslaved. Now, they are equal and can vote and inter-marry with whites. Same goes for gays. Society changed. It’s starting to accept that gays are equal and should be allowed to marry. The conservatives don’t liked that and are trying to fight it (and starting to lose). Simple. The end. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 6, 2013, 11:27pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/167 "2013-07-06T23:27:04Z")
> [@jayjay](#): > > There is no such thing as a good-faith opposition to marriage equality. Period. The same way there is no such thing as a good-faith opposition to racial equality. It’s all bigotry. And there is no good faith support for a local sales tax increase. The supporters want us all to be Communists. Let’s all draw lines in the sand over every issue so that we can’t dispute anything in a civil manner. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 6, 2013, 11:28pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/168 "2013-07-06T23:28:55Z")
> [@computergeek](#): > > Same goes for gays. Society changed. It’s starting to accept that gays are equal and should be allowed to marry. The conservatives don’t liked that and are trying to fight it (and starting to lose). Simple. The end. That’s an argument to your state legislature, not an argument that such a right was implied in the 14th amendment. ---
**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 7, 2013, 12:10am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/169 "2013-07-07T00:10:31Z")
> [@jtgain](#): > > And there is no good faith support for a local sales tax increase. The supporters want us all to be Communists. Let’s all draw lines in the sand over every issue so that we can’t dispute anything in a civil manner. Because those two things are EXACTLY the same thing, sure! ---
**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 7, 2013, 1:16am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/170 "2013-07-07T01:16:10Z")
> [@jtgain](#): > > Because if you look at the records before 2004, you would see that countless thousands of opposite sex couples were legally married while a big goose egg zero same sex couples were legally married. Doesn’t sound like SSM is something rooted in history. > > Of course, no smartphone users were married before 1990, but that has no relevance to the marriage license. Why is same-sex/different-sex a relevant distinction but smartphone-owners/not-smartphone-owners – and same-race/different-races – not? I’m striving mightily not to assume the answer is either "but gays are icky or “because men and women are totally different,” but you’re not making it easy. [QUOTE=ibid] If in 1988, a court clerk, and any official all the way up to a Supreme Court justice was shown that a marriage applicant had this new-fangled "smart phone (stolen via time machine) there would be interest in the device, but no concern about a marriage license. If in 1988, two men applied for a marriage license, it would have been universally rejected everywhere in the world as applied to that particular marriage license. [/QUOTE] How do you know? And on what grounds, considering that 16 years after that, the Supreme Judicial Court of Massachusetts did determine that this was not the correct reading of the relevant laws there? ---
**Author:** ![Tequila\_Party](https://avatars.discourse-cdn.com/v4/letter/t/a6a055/32.png) [@Tequila\_Party](https://boards.straightdope.com/u/Tequila_Party)\ **Post date:** [July 7, 2013, 1:20am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/171 "2013-07-07T01:20:09Z")
> [@jayjay](#): > > There is no such thing as a good-faith opposition to marriage equality. Period. The same way there is no such thing as a good-faith opposition to racial equality. It’s all bigotry. This. Nothing more needs to be said. ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [July 7, 2013, 3:07am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/172 "2013-07-07T03:07:12Z")
> [@jtgain](#): > > …In the face of those facts, it approaches absurdity to say that SSM was something so fundamental and so rooted in history that to deny it is a violation of substantive due process. The same way with incestuous marriage. Do I have a fundamental right to marry my daughter (assuming we are both of age and incapable of procreation)? Do I have a fundamental right to marry two women? A shovel? > > You may say that a shovel has no capacity to enter into a contract, but isn’t that a burden the state has placed as well? Couldn’t a court recognize the right of a shovel to marry? At the end of the sad and twisted tale told in Ford Madox Ford’s _The Good Soldier_, our narrator has become the caretaker of the young & beautiful girl he loves. Who has gone mad, although it’s a quiet madness neatly handled by her old nurse, in the elegant setting of the narrator’s newly purchased country place in England… > [@](#): > > Of course you have the makings of a situation here, but it is all very humdrum, as far as I am concerned. I should marry Nancy if her reason were ever sufficiently restored to let her appreciate the meaning of the Anglican marriage service. But it is probable that her reason will never be sufficiently restored to let her appreciate the meaning of the Anglican marriage service. Therefore I cannot marry her, according to the law of the land. Neither Nancy nor your beloved shovel could legally marry–in those days, the present, or any foreseeable future. Ford, himself, was trapped by the British divorce laws of his day–which were considered immutable & age old… My own city’s mayor has been with her partner since 1990; they have 3 adopted children. They would like to marry & many people are thinking “why not?” Yes, go ahead & make up as many farfetched examples as you like. They aren’t relevant. ---
**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 7, 2013, 5:12am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/173 "2013-07-07T05:12:28Z")
> [@jtgain](#): > > Well, if it isn’t “deeply rooted” then it certainly can’t be something the constitution considers “fundamental.” If you throw away that test then any right is fundamental simply because 5 justices think so, and that is clearly nothing any of us want. Since you posted this less than an hour after I asked where it says that, I’ll ask you to point out where you get this from. So? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 7, 2013, 10:28pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/174 "2013-07-07T22:28:56Z")
> [@DMC](#): > > Since you posted this less than an hour after I asked where it says that, I’ll ask you to point out where you get this from. > > So? My cite is eluding me right now, but 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.” It’s why Kennedy writes these opinions in favor of SSM or sodomy in a circular manner. He knows that if you apply the fundamental rights test that SCOTUS has always used, you can’t find homosexual sodomy or marriage as a protected right and therefore states are free to regulate it. ---
**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 7, 2013, 11:12pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/175 "2013-07-07T23:12:14Z")
> [@jtgain](#): > > My cite is eluding me right now, but 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.” You let me know when it ceases to elude you (hint: Moore v East Cleveland, but it doesn’t say what you claim it does). In the meantime, I’ll continue to give it the same weight as anything else without supporting evidence. ---
**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:** [July 8, 2013, 12:51am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/176 "2013-07-08T00:51:10Z")
[QUOTE=jtgain] It’s why Kennedy writes these opinions in favor of SSM or sodomy in a circular manner. He knows that if you apply the fundamental rights test that SCOTUS has always used, you can’t find homosexual sodomy or marriage as a protected right and therefore states are free to regulate it. [/QUOTE] While I’m incredibly impressed by your ability to read Justice Kennedy’s mind, I’m not all that sure you’re right. I am no fan of Kennedy’s kitchen sink approach to jurisprudence, but I also think you are seriously selling his analysis and his rationale very short. You continue to ascribe your framing of the definition of rights (the right to physical intimacy or marriage should have nothing to do with who is exercising the right, but rather the right itself) to Kennedy when it has been more than clear for decades that he doesn’t ascribe to your particular view. I don’t think that’s a fair way of deciding the worth of his jurisprudence. ---
**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, 1:03am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/177 "2013-07-08T01:03:38Z")
> [@Hamlet](#): > > While I’m incredibly impressed by your ability to read Justice Kennedy’s mind, I’m not all that sure you’re right. I am no fan of Kennedy’s kitchen sink approach to jurisprudence, but I also think you are seriously selling his analysis and his rationale very short. > > You continue to ascribe your framing of the definition of rights (the right to physical intimacy or marriage should have nothing to do with who is exercising the right, but rather the right itself) to Kennedy when it has been more than clear for decades that he doesn’t ascribe to your particular view. I don’t think that’s a fair way of deciding the worth of his jurisprudence. He doesn’t subscribe to anyone’s point of view except his own. Legal scholars to the left and right of him agree that he has made up this whole “rational basis with teeth” scrutiny all on his own. Rational basis with teeth just means that the judiciary will make itself legislators and decide if the reason for a law is good enough. That’s not the job of a judge if the law doesn’t infringe on a fundamental right. Kennedy has not held that sodomy or SSM is a fundamental right, but he dances all over the place to strike down laws against them. If he did hold them as fundamental rights, I could at least disagree with him honestly and not hate his opinions for the same reasons Scalia does: they are not rooted in any textual, intent, or previous decision of the Court but exist only in his mind. ---
**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, 1:37am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/178 "2013-07-08T01:37:10Z")
> [@DMC](#): > > You let me know when it ceases to elude you (hint: Moore v East Cleveland, but it doesn’t say what you claim it does). In the meantime, I’ll continue to give it the same weight as anything else without supporting evidence. Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997) ---
**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:** [July 8, 2013, 6:18am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/179 "2013-07-08T06:18:13Z")
> [@jtgain](#): > > He doesn’t subscribe to anyone’s point of view except his own. Legal scholars to the left and right of him agree that he has made up this whole “rational basis with teeth” scrutiny all on his own. Neither of the two most famous “rational basis with bite” cases, Plyler v. Doe and Cleburne v. Cleburne Living Center, were written by Kennedy. Unless you are somehow positing that Kennedy is actually Walter Brennan and Byron White in disguise, he most certainly didn’t “make up this whole rational basis with bite on his own.” I will also point out that the rational basis test, the intermediate scrutiny test, and the strict scrutiny test have all been “made up” by some judge or another. Personally, I am not convinced that the Constitution requires that there be only those three specific tests. [Quote=jtgain] Rational basis with teeth just means that the judiciary will make itself legislators and decide if the reason for a law is good enough. That’s not the job of a judge if the law doesn’t infringe on a fundamental right. [/quote] The extreme deference to the legislatures in legislation aimed directly at punishing a minority and touching on rights that are granted to some people but denied others for no legitimate reason is a complete abdication of the judicial power granted in the Constitution Inflamed rhetoric is fun! [Quote=jtgain] Kennedy has not held that sodomy or SSM is a fundamental right, but he dances all over the place to strike down laws against them. If he did hold them as fundamental rights, I could at least disagree with him honestly and not hate his opinions for the same reasons Scalia does: they are not rooted in any textual, intent, or previous decision of the Court but exist only in his mind. [/QUOTE] I too wish Kennedy would come out and say the existence of a right (whether to sexual intimacy or marriage) does not depend solely on who is trying to exercise it (whether the person is attracted to someone of the same gender or not). But I also don’t think his opinion is in any way dishonest. ---
**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, 7:10am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/180 "2013-07-08T07:10:53Z")
> [@jtgain](#): > > Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997) So I’m supposed to find your argument for you now? How exactly does this case back you up (hint: it doesn’t, but feel free to demonstrate otherwise). I don’t know why, but I’m going to help you out, under the assumption that you’ll either stop trotting out that argument or find something to actually defend it with. In your cited case, the opinion states: > [@](#): > > First, we have regularly observed that the Due Process Clause **specially** protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” You’ll note that it says **specially** , not solely. In fact, in the same opinion it also states: > [@](#): > > In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra. 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? [Previous page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=8) [Next page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=10)