Federal Judge moves towards overturning DOMA

Story here.

Although a Mass. federal judge has already ruled DOMA unconstitutional (which the Justice Dept. is appealing), another judge in Oakland, CA has ruled that

The argument in this case is that DOMA has

DOMA seems not long for this world. However, if the whole thing ends up decided by the Supremes, anything can happen I guess.

Finally, in the decision, the judge said that

I don’t have a proposition for debate. I would be interested in hearing our legal experts’ evaluations of this decision on its merits. I’m not particularly interested, for this thread, in strategic arguments about the best way to dismantle DOMA.

For me, I like the way things are going. Multiple federal judges in multiple jurisdictions are recognizing DOMA for what it is: unconstitutional interference in the rights of states and of those states’ citizens for the sake of preserving a bigoted view of sexual behavior. And they’re saying so in very plain language.

I hope there isn’t already a thread about this, I didn’t see one.

As do I. However, proponents of SSM are well-advised to remember that giving states “the power to allow same-sex civil marriages that will be recognized under federal law” necessarily gives them the same power to refuse such marriages.

I certainly am a strong supporter of the Tenth Amendment, and welcome the push to recognize the powers it gives to states, but that means the states have the power even if they don’t do what I want.


Until of course such denial is found to violate the federal constitution, which even the most ardent tenthers (barring utter crackpots) accept is supreme.

First of all, governments have the right to determine which marriages it will recognize and which it won’t. This is a public policy issue - and all of us can come up with examples of marriages that we won’t want the government to sanction.

Secondly, the fact that marriage is tied up in numberless federal benefits and penalties means that, for better or worse, this is not solely a state issue nor a federal one. It is both - and that vastly complicates this whole mess.

I doubt you are going to find a lot of ardent Tenth-ers who believe the Tenth Amendment gives states the power to do as they are told. Either states have the power to decide about SSM, or they don’t. Henry Ford is said to have remarked that “the American people can have any color car they want, as long as it is black”. It is hard to understand that as giving anyone the power to decide what color your car should be.

And the "full faith and credit’ clause is a large complication. If a state passes a law explicitly outlawing SSM, can other states be forced to recognize this as valid?


I mean that most ardent Tenthers accept the supremacy of the Federal constitution. They may argue that the federal constitution does not guarantee the right to SSM, much as they argued it did not guarantee the right to interracial marriage (for purely constitutionally based reasons of course, they would personally have supported a right to such unions). But they also accept the premise that if a right is guaranteed federally, it cannot be overridden by the states.

Maybe I am not understanding you.

What I am saying is that any decision about the powers of states vis-a-vis SSM that is based on the Tenth Amendment necessarily has to work both ways, in order to be coherent.

Sure, some judge can pull an Equal Protection interpretation out of his ass and claim that this means SSM is mandatory, but that doesn’t have anything to do with the Tenth. And it sure as hell doesn’t rob “states of the power to allow same-sex civil marriages that will be recognized under federal law.” If SSM were somewhere else in the Constitution, states wouldn’t have any such power.


I do not see how SSM could be done on any other basis than a federal level. If it is left to the states you get absurd results.

Get married in a state where SSM is allowed to your SS partner. Want to get divorced and not owe your spouse anything? Drive to a state that says you aren’t married. Poof…magically unmarried and wipe away all the legal protections that are supposed to adhere in a marriage.

Or on a road trip you and your spouse are driving through a state that does not recognize your marriage. You get in a car accident and insto-presto you have no right to make medical decisions for your spouse (which you could make at home).

What if a company with a presence in all 50 states incorporates in a state where SSM is not recognized? Can they then deny benefits to those groups? Companies incorporated in states where SSM must extend benefits to those people.

You can go on and on with this stuff. The results are absurd if the rules (either for or against SSM) and not applied at a national level.

That’s how it is now. I don’t recall hearing any news stories of “absurd results”.

Things are hugely in flux currently. The laws from full marriage to civil partnerships to you can marry then you can’t (ala California). Things are all over the place and none of this has been settled one way or another.

Imagine it becoming settled. You can have a SSM in 25 states and not in the other 25. It’d be a matter of time till the hijinks and weird results started.

And what does happen if a SS-couple gets in an accident in a state that does not recognize it? The partner is just SOL? If it hasn’t happened yet it’ll just be a matter of time…sooner or later that will occur. How long till a spouse in a SSM flees to a state where there is no SSM and dodges their obligations?

I doubt you or Shodan would be pleased with a system that saw you married or not married depending on the state you were in at the time.

The Tenth Amendment states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It’s perfectly coherent to argue that the power to decide on marriage laws is reserved to the states, but that the 14th Amendment prohibits states the power to deny marriage licenses on the basis of the genders of the couple, just as it does based on the races of the couple. There is nothing about the Tenth Amendment that requires all marriage laws to either be immune to or subject to federal scrutiny.

I’m not necessarily making this argument myself. I don’t really know much of anything about Tenth Amendment jurisprudence. Reading Judge Tauro’s decision in the Massachusetts case, he seems to have let his Tenth Amendment argument hinge on the fact that in the related case he found DOMA unconstitutional. And some of his logic was based on First Circuit precedent, which isn’t binding in the rest of the country.

The correct way to deal with this is for everyone to just say “Dude, DOMA is such a bigoted piece of crap, we’re going to just erase it and pretend it never happened”

Or the following scenario. Susan is bisexual. She marries Edith in Iowa were same-sex marriage is legal. The marriage sours and instead of getting a divorce Susan moves to Texas were SSM is banned. She falls in love with Ferdinand and they marry. They move to Washington, DC where SSM is legal. Now who’s she married to, Susan or Ferdinand? Susan & Edith never got a divorce before Susan married Ferdinand because according to the State of Texas Susan has never been married.

I would have thought this was a priveleges and immunities issue rather than a states rights issue.

Are you also a strong supporter of the rest of the constitution? For example the commmerce clause and the welfare clause?

Well, something like that (but not as complicated) something happened in Texas:


I don’t entirely know what this means. If State A explicitly outlaws SSM, there’s nothing for State B to recognize. Full faith and Credit only applies to proceedings another state conducts, not proceedings another state fails to conduct.


States have the power to decide whether or not to have SSM. They probably do not have the power to ignore valid marriages from other states, even if those marriages are SSM absent some compelling state interest.

For example, if a mixed race couple got legally married in Alabama and then moved to Vermont where mixed race marriage was illegal, Vermont would still have to recognize that marriage.

Yes, if you got a SSM in a state where they do not permit SSM then no other state would recognize that SSM even if SSm was legal in their state.

I thought of another interesting issue that could crop up:

Spousal Privilege

If Susan and Edith marry in Iowa but are brought to court in Texas then Texas could presumably compel one to testify against the other since, according to Texas, they are not married and thus no spousal privilege attaches.

So be careful what you say to your spouse! Could bite you in the ass.

At one time we had such odd laws. Nevada divorces for instance, were quite the cause of confusion.

It was especially bad in the 30s when California refused to recognize any Nevada divorce that didn’t also meet California standards. This meant actors would go to Nevada and get divorced but they were still married in California.

What happened is the lawyers from all sides met and they worked out some sort of agreement (usually money + child custody) and California would recongnize THAT particual Nevada divorce.

A marriage is a LICENSE, and like the license of anything: nurses, doctors, hairdressers, driving, some states recognize them automatically others make you reapply or re-test.

The list goes on and on.

Susan and Edith marry in Iowa. They decide that Susan’s employer provided health insurance is better and they are both insured under it. But it turns out that the insurance company is based out of Texas. Can they use Texas’s non-recognision of SSM as an out when Edith needs expensive health care?

How about Federal Income tax? Will there be a new catagory?
Married filing jointly,
Married filing seperately,
Married in some places