# Federal bankruptcy court blasts Defense of Marriage Act **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2011, 4:40am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528 "2011-06-15T04:40:33Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Roderick\_Femm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roderick_femm/32/14875_2.png) [@Roderick\_Femm](https://boards.straightdope.com/u/Roderick_Femm)\ **Post date:** [June 15, 2011, 4:40am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/1 "2011-06-15T04:40:33Z")
Story [here](http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/06/14/BA261JTSHR.DTL&tsp=1). [QUOTE=Bob Egelko, SF Chronicle staff writer] The latest legal manifesto for gay rights comes from an unlikely source - a 20-judge federal bankruptcy court, which unanimously declared that a law denying federal benefits to same-sex couples is unconstitutional. [/QUOTE] 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](http://boards.straightdope.com/sdmb/showthread.php?t=612460). 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!) Roddy ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 15, 2011, 4:47am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/2 "2011-06-15T04:47:10Z")
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. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [June 15, 2011, 5:00am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/3 "2011-06-15T05:00:35Z")
> [@Whack-a-Mole](#): > > 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. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [June 15, 2011, 5:05am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/4 "2011-06-15T05:05:58Z")
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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 15, 2011, 5:17am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/5 "2011-06-15T05:17:04Z")
> [@Oakminster](#): > > 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. Huh? > [@](#): > > While anger is hard to prove, the opinions certainly show that Scalia has little enthusiasm for expanding gay rights. In the Colorado case, for instance, Scalia would have allowed the state to prohibit laws according gays and lesbians “protected status or [any] claim of discrimination.” He called the anti-gay measure “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” Responding to the idea that the Colorado amendment reflected an “animus” toward gays, Scalia wrote: “I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals – and could exhibit even ‘animus’ toward such conduct.” > > In 2003, the court struck down a Texas law criminalizing same-sex sodomy. In his dissent, Scalia noted that the court “has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” > > SOURCE: [Does Scalia hate gays?](http://articles.latimes.com/2009/mar/28/opinion/ed-scalia28) ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [June 15, 2011, 5:27am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/6 "2011-06-15T05:27:19Z")
Jesus, what a dickbag. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [June 15, 2011, 5:44am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/7 "2011-06-15T05:44:11Z")
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](http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause) 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. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 15, 2011, 5:52am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/8 "2011-06-15T05:52:23Z")
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. ---
**Author:** ![Recovering\_Republican](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@Recovering\_Republican](https://boards.straightdope.com/u/Recovering_Republican)\ **Post date:** [June 15, 2011, 12:11pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/9 "2011-06-15T12:11:09Z")
> [@Whack-a-Mole](#): > > 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’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. ---
**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 15, 2011, 12:53pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/10 "2011-06-15T12:53:01Z")
> [@Little\_Nemo](#): > > 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. 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. ---
**Author:** ![SmartAlecCat](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SmartAlecCat](https://boards.straightdope.com/u/SmartAlecCat)\ **Post date:** [June 15, 2011, 1:04pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/11 "2011-06-15T13:04:35Z")
> [@John\_Mace](#): > > 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 15, 2011, 2:36pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/12 "2011-06-15T14:36:49Z")
> [@Little\_Nemo](#): > > 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. No, this is incorrect. > [@Wikipedia](#): > > In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution and not impose new interpretations foreign to the original intention of the authors. Was the original intent of the authors to allow same-sex marriage? No. But is YOUR wish that the Constitution mandates same-sex marriage? Yes. 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. ---
**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 15, 2011, 2:55pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/13 "2011-06-15T14:55:29Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 15, 2011, 3:00pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/14 "2011-06-15T15:00:55Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. ---
**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 15, 2011, 3:03pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/15 "2011-06-15T15:03:42Z")
I agree. Now, Clarence Thomas describes himself as an originalist, which _does_ seem to mean the Constitution says whatever Scalia says it does. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 15, 2011, 3:11pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/16 "2011-06-15T15:11:15Z")
> [@Bricker](#): > > No, this is incorrect. > > Was the original intent of the authors to allow same-sex marriage? > > No. > > But is YOUR wish that the Constitution mandates same-sex marriage? > > Yes. > > 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. 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). ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [June 15, 2011, 3:13pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/17 "2011-06-15T15:13:35Z")
Interesting sidelight: > [@](#): > > …House Republican leaders have appointed a private attorney, Paul Clement, a former U.S. solicitor general, to take over the defense. > > Clement filed arguments in the San Francisco case June 3, saying the law was justified by tradition and biological differences between same-sex and opposite-sex couples. He also accused Obama of abandoning his constitutional duties. > > But Clement has yet to appear in the bankruptcy case, even though the court delayed the proceedings for two weeks at House leaders’ request, Pfister said… 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. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [June 15, 2011, 3:15pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/18 "2011-06-15T15:15:58Z")
> [@Oakminster](#): > > I could be wrong, of course, but I think some arguments might reach him. Maybe a “full faith and credit” attack. Unlikely; the quoted opinions make it clear that Scalia sees himself as a policy-setter rather than a jurist. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 15, 2011, 3:16pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/19 "2011-06-15T15:16:58Z")
> [@Bricker](#): > > Was the original intent of the authors to allow same-sex marriage? > > No. 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. > [@Bricker](#): > > 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. 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. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 15, 2011, 3:18pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/20 "2011-06-15T15:18:57Z")
> [@Oakminster](#): > > 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. 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. [Next page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=2)