Federal bankruptcy court blasts Defense of Marriage Act

Story here.

This on top of the new federal judge upholding Judge Walker’s ruling on Prop 8 (technically, the new judge rejected a challenge to Judge Walker’s ruling based on him being gay.) Thread on that topic is here.

I am almost optimistic. Maybe federal recognition of same-sex marriage can happen in my lifetime. Woot!

(The superstitious side of me says I shouldn’t celebrate too early for fear of jinxing the end result, but what the hell. Woot! again!)

While this is good to see this will not be settled till a Supreme Court case settles it and the current Supreme Court will NOT be favorable to Gay rights.

They will be on the wrong side of the law but that won’t stop them. If brought before them I suspect they will deny gay rights across the board. Constitution be damned.

I think you underestimate the Court. I expect a majority decision favorable to gay rights. Also think it will be one of the conservative Justices writing the majority opinion. Possibly Scalia.

But Scalia wrote the dissent in Lawrence v. Texas. While not saying anything about his political perspective, this, to my layman eye, at least mildly indicates that, jurisprudence outlook-wise, he may not be partial to such a majority as you predict.


Jesus, what a dickbag.

I could be wrong, of course, but I think some arguments might reach him. Maybe a “full faith and credit” attack
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.*

wikipedia cite

Arguably, Congress can require various hoops to proving the validity of foreign state official acts, but that text does not unambiguously grant Congress power to create exceptions to full faith and credit.

In the alternative, a failure by one state to recognize a marriage valid in another state might violate a fundamental right of interstate travel.

Scalia is an originalist. Originalism is a legal doctrine that essentially says that the meaning of the United States Constitution is whatever Antonin Scalia thinks it should be.

I’m not sure if that was the case.

Let’s assume that the four right wingers- Roberts, Alito, Scalia and Thomas- the Catholic “gang”, are going to be against it.

The liberal justices- Kagan, Sotomoyor, Breyer and Ginsberg- will probably vote for it. (And yes, three of them are Jewish. This country has a protestant majority, but the court is entirely Catholic and Jewish.)

That leaves Anthony Kennedy. Now, he’s come down with the right wingers on abortion issues, more or less, but on the gay, not so much.

He was the deciding vote on Lawrence v. Texas that struck down all the sodomy laws. He was also the deciding factor on the Romner decision.

Walker crafted his ruling to specifically cite Lawrence and Romner as precedents, which would make it harder for Kennedy to be the guy to walk that back.

I think it is more likely that DOMA will be overturned, first, which may render the whole thing moot. As long as six or seven states recognize gay marriage, it doesn’t matter what the other 43 do if they “Full Faith and Credit” clause applies.

Textualist first, not originalist. As for your definition of originalism, that sounds more like the definition of the " living constitution" school of interpretation.

I would say nice try, but it wasn’t.

Still, I’d be surprised to see the SCOTUS mandate SSM for the states. Not at this point.

How about mandating recognition of state granted marriages?

No, this is incorrect.

Was the original intent of the authors to allow same-sex marriage?


But is YOUR wish that the Constitution mandates same-sex marriage?


So it seems that originalism is, in fact, not as you describe it, and further, that your own philosophy is precisely what you described: the Constitution means what you think it should mean, as opposed to what those who wrote it thought it meant.

Of course, the original intent of the authors wasn’t to allow interracial marriage, either, so it’s a good thing there aren’t more Justices who subscribe to textualism.

That’s true. A very forceful argument against originalism (not so much textualism, but to an extent) is that it produces undesirable results.

NOT that originalism makes the Constitution mean whatever the judge wishes it to mean.

I agree. Now, Clarence Thomas describes himself as an originalist, which does seem to mean the Constitution says whatever Scalia says it does.

Very well. Then let’s abolish the Air Force. That certainly was not in the Founders’ original intent.

The question to be asked has nothing to do with whether the Constitution “mandates” same-sex marriages. The question is whether the Federal government or any state can refuse recognition to a marriage duly contracted in accordance with the laws of another state. And whether Congress may excuse states from their mandated positive duty under the language of the Constitution. IMO it may not do so, but I’m sure you can find an emanation of a penumbra which will excuse it (probably the IOKIARDI clause).

Interesting sidelight:

Judging from the GOP’s actual record as a custodian of the taxpayers’ money, I wouldn’t be at all surprised if this Clement dude had gotten himself a deal where he collects five figures a pop for faxing a set of precanned talking points to each court that hears a DOMA case.

Unlikely; the quoted opinions make it clear that Scalia sees himself as a policy-setter rather than a jurist.

Except this is an overly simplistic view of original intent, and one which is the flaw of the right wing interpretation of it. The intent of the authors was not to freeze things in place, but instead to provide a framework that would stand the test of time. And that included using language that by its very nature requires reference to changing attitudes.

For example, the authors didn’t prohibit torture, or indeed any specific list of penalties, but instead prohibited “cruel or unusual punishment.” The original intent of the authors was to create a living evolving document.

Actually the argument is that both originalism and textualism, in the way used by certain members of the Court, do mean the Constitution means whatever those Justices want it to mean.

The argument is that Justices claims certainty in language where there is none to provide the result they want. Or that they claim uncertainty in language where there is none to produce the result they want.

The argument against textualism isn’t simply that the original text provides results that opponents of textualism don’t want. It’s that so-called textualists use and abuse the original text with a results oriented agenda, while trying to cloak their results orientation with an allegedly neutral process than is in fact far from it.

I agree with you on the first 3/4 of this, just not Fat Tony writing it. If he does it will be a poison pill decision that includes some very unpleasant factors, but I don’t think he will. He’s too known as a culture warrior for there to be a majority around a decision of his.

My guess is 6-3 pro-SSM rights, with the decision by Kennedy, and Roberts signing on.