# Federal Judge moves towards overturning DOMA **URL:** \ **Category:** Great Debates\ **Created:** [January 20, 2011, 4:20am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294 "2011-01-20T04:20:05Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 28, 2011, 12:56am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/181 "2011-02-28T00:56:41Z")
> [@ElvisL1ves](#): > > You’ve discovered the “rational basis with teeth” test, one step up, not the rational basis requirement itself. The \*Romer \*ruling, as you should now know, is that not even that is met by DOMA. Congrats on finding the Wiki page. You are conflating rational basis and rational basis plus. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 28, 2011, 5:30am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/182 "2011-02-28T05:30:21Z")
> [@Polycarp](#): > > Romer v. Evans was decided on rational basis grounds – and found Colorado’s Amendment II unconstitutional because there were no rational grounds adduced. Now apply the logic of that decision here – what rational basis is there for deeming that legal same-sex marriages are to be treated differe3ntly than all other “public acts, records, and judicial proceedings” of other states. My only nitpick here would be that _Romer_ merely said it was decided on rational basis grounds, but it wasn’t… ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 28, 2011, 6:01am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/183 "2011-02-28T06:01:50Z")
> [@villa](#): > > My only nitpick here would be that _Romer_ merely said it was decided on rational basis grounds, but it wasn’t… I think we might end up arguiing semantics, but I’d aver that ‘rational basis’ is what the Court says it is. If they have of late decided to invest it with “teeth” and make it a bit more meaningful than “legislatures get almost a free pass to do anything not otherwise prohibited and not rising to an intermediate or strict scrutiny situation”. And I’d argue that _Romer_ was in fact decided on rational basis grounds. Purely for the sake of argument, advance a rational basis for Colorado’s Amendment II -=- _anything_ the legislature might reasonably have advanced by way of legislative purpose in passing it, had they been so inclined. Good conservative Republicans reading this, please give your perspective on what that basis might be. I’ve tried, and I cannot come up with one. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 28, 2011, 6:14am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/184 "2011-02-28T06:14:55Z")
> [@Polycarp](#): > > Purely for the sake of argument, advance a rational basis for Colorado’s Amendment II -=- _anything_ the legislature might reasonably have advanced by way of legislative purpose in passing it, had they been so inclined. Good conservative Republicans reading this, please give your perspective on what that basis might be. I’ve tried, and I cannot come up with one. The best one, which was mentioned up thread, is to preserve the traditional notion of marriage. Some say (see post 171) that this isn’t a legitimate interest. But a few Justices on the Court might disagree. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 28, 2011, 6:17am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/185 "2011-02-28T06:17:52Z")
> [@Polycarp](#): > > Purely for the sake of argument, advance a rational basis for Colorado’s Amendment II -=- _anything_ the legislature might reasonably have advanced by way of legislative purpose in passing it, had they been so inclined. Good conservative Republicans reading this, please give your perspective on what that basis might be. I’ve tried, and I cannot come up with one. The promotion of traditional sexual morality/the desire not to imply state sanction of homosexual sodomy? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 28, 2011, 6:19am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/186 "2011-02-28T06:19:40Z")
> [@Lakai](#): > > The best one, which was mentioned up thread, is to preserve the traditional notion of marriage. Romer wasn’t really about marriage. It was about extending anti-discrimination laws to gay people. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 28, 2011, 1:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/187 "2011-02-28T13:35:02Z")
> [@Lakai](#): > > The best one, which was mentioned up thread, is to preserve the traditional notion of marriage. > > Some say (see post 171) that this isn’t a legitimate interest. But a few Justices on the Court might disagree. The problem was that Colorado’s Amendment II went well beyond simply marriage. It purported to reach into every single aspect of Colorado law. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 28, 2011, 6:49pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/188 "2011-02-28T18:49:20Z")
> [@Bricker](#): > > The problem was that Colorado’s Amendment II went well beyond simply marriage. It purported to reach into every single aspect of Colorado law. Right, so it’s not even rationally related to the interest I provided. And neither is it related to the interest Captain Amazing offered. It goes beyond the promotion of traditional sexual morality as well. I didn’t say my answer was a satisfactory basis, just the best one. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 28, 2011, 6:55pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/189 "2011-02-28T18:55:38Z")
What I love is the willfull blindness of the States’ “Rights” brigade on this. The federal government passes a law that says “we aren’t going to recognize same sex marriages performed by any state,” despite the fact that marriage has always been a state law matter, and that the federal government has always given federal recognition to the choices of the states here. If the state has said A & B are married, then A & B are married for federal purposes. I guess States’ “Rights” are a little less important than hating on the homos. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [February 28, 2011, 7:03pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/190 "2011-02-28T19:03:57Z")
> [@villa](#): > > What I love is the willfull blindness of the States’ “Rights” brigade on this. > > The federal government passes a law that says “we aren’t going to recognize same sex marriages performed by any state,” despite the fact that marriage has always been a state law matter, and that the federal government has always given federal recognition to the choices of the states here. If the state has said A & B are married, then A & B are married for federal purposes. > > I guess States’ “Rights” are a little less important than hating on the homos. Your location says you’re in Virginia. Know of any landmark SCOTUS cases involving your state and interstate marriage? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 28, 2011, 7:15pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/191 "2011-02-28T19:15:13Z")
> [@stpauler](#): > > Your location says you’re in Virginia. Know of any landmark SCOTUS cases involving your state and interstate marriage? Which doesn’t go against what I say at all. _Loving_ was a very different matter. I said that, previously: > [@](#): > > If the state has said A & B are married, then A & B are married for federal purposes. What _Loving_ did was correctly say that not allowing interracial marriage discriminated in an unconstitutional fashion. It was saying if you allow WW or BB to marry, then you must allow WB. What it didn’t do, which DOMA did, is say that even while a state has the power to allow MM or FF unions as well as MF unions, the federal government will choose to not recognize the state’s choice. _Loving_ required states to exapand their definition of marriage - it did not say to a state that its choice of who was considered married was irrelevant. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 28, 2011, 8:37pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/192 "2011-02-28T20:37:36Z")
Hypothetically - What happens when a future president chooses not to defend the Health Care Mandate? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 28, 2011, 9:16pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/193 "2011-02-28T21:16:31Z")
> [@Lakai](#): > > Right, so it’s not even rationally related to the interest I provided. And neither is it related to the interest Captain Amazing offered. It goes beyond the promotion of traditional sexual morality as well. > > I didn’t say my answer was a satisfactory basis, just the best one. Here’s the actual amendment 2, just for reference: > [@](#): > > No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing. So I think the “promotion of traditional sexual morality” rationale works there. It’s a way to say to gay people, “We don’t want you being gay in our state, and if you are gay in our state, and you suffer because of it, don’t expect us to protect you.” ---
**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:** [February 28, 2011, 11:45pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/194 "2011-02-28T23:45:57Z")
> [@villa](#): > > What I love is the willfull blindness of the States’ “Rights” brigade on this. > > The federal government passes a law that says “we aren’t going to recognize same sex marriages performed by any state,” despite the fact that marriage has always been a state law matter, and that the federal government has always given federal recognition to the choices of the states here. If the state has said A & B are married, then A & B are married for federal purposes. > > I guess States’ “Rights” are a little less important than hating on the homos. Yeah, people are hypocrites about a lot of things. One thing about DOMA though, is that has 2 parts. One part says the feds don’t have to recognize state marriages, but the other part says states don’t have to recognize each other’s marriages. The latter part is, I believe, the biggest concern of the homo haters and is the real "states rights’ issue. ---
**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:** [March 1, 2011, 3:14am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/195 "2011-03-01T03:14:23Z")
> [@Bone](#): > > Hypothetically - What happens when a future president chooses not to defend the Health Care Mandate? Somebody else will do it. There’s an almost inexhaustible supply of PACs willing to put up the money to defend almost any law. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [March 1, 2011, 4:07am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/196 "2011-03-01T04:07:43Z")
> [@John\_Mace](#): > > Yeah, people are hypocrites about a lot of things. One thing about DOMA though, is that has 2 parts. One part says the feds don’t have to recognize state marriages, but the other part says states don’t have to recognize each other’s marriages. The latter part is, I believe, the biggest concern of the homo haters and is the real "states rights’ issue. Just to be clear, the part about states not having to recognize same-sex marriages from other states is not being challenged in any of the current lawsuits. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 1, 2011, 5:41am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/197 "2011-03-01T05:41:14Z")
> [@John\_Mace](#): > > Yeah, people are hypocrites about a lot of things. One thing about DOMA though, is that has 2 parts. One part says the feds don’t have to recognize state marriages, but the other part says states don’t have to recognize each other’s marriages. The latter part is, I believe, the biggest concern of the homo haters and is the real "states rights’ issue. Justice hasn’t said it will stop defending the constitutionality of the part you list second. It is only the first part - the federal part. And the people who cry bloody murder when the federal government tries to do anything they think infringes on states are more than happy to have the federal government destroy much of the practical effect of a state’s power to define marriage within its own borders. ---
**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:** [March 1, 2011, 2:17pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/198 "2011-03-01T14:17:41Z")
> [@villa](#): > > Justice hasn’t said it will stop defending the constitutionality of the part you list second. It is only the first part - the federal part. And the people who cry bloody murder when the federal government tries to do anything they think infringes on states are more than happy to have the federal government destroy much of the practical effect of a state’s power to define marriage within its own borders. I guess I’m just not seeing the “states’ rights” issue in the federal part, then. Can you elaborate how you see that being a “states’ rights” issue? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 1, 2011, 4:04pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/199 "2011-03-01T16:04:24Z")
> [@John\_Mace](#): > > I guess I’m just not seeing the “states’ rights” issue in the federal part, then. Can you elaborate how you see that being a “states’ rights” issue? Traditionally the definition of marriage has been in the hands of the states. There are, to the best of my knowledge, approximately 2,000 federal benefits that flow from being married. In the past, the federal government has been very hands off, and said to the states “if you say these two people are married, then these two people are married - here, have 2,000 benefits.” What DOMA does, or this part of DOMA, is say to the states “we no longer consider you the arbiter of who is married.” Or, to be more accurate, “we still think you are capable of determining when a man and woman is married, but if you determine that people of the same sex should be allowed to marry, we are going to ignore your decision and treat the people as unmarried.” ---
**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:** [March 1, 2011, 4:14pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/200 "2011-03-01T16:14:26Z")
> [@villa](#): > > Traditionally the definition of marriage has been in the hands of the states. There are, to the best of my knowledge, approximately 2,000 federal benefits that flow from being married. In the past, the federal government has been very hands off, and said to the states “if you say these two people are married, then these two people are married - here, have 2,000 benefits.” > > What DOMA does, or this part of DOMA, is say to the states “we no longer consider you the arbiter of who is married.” Or, to be more accurate, “we still think you are capable of determining when a man and woman is married, but if you determine that people of the same sex should be allowed to marry, we are going to ignore your decision and treat the people as unmarried.” Yes, but I’ve never heard of “states’ rights” as being anything other than the feds telling the states what to do or not to do. Not the other way around. Can you give another example where it’s been a states’ rights issue for the feds to act in a certain way? Now, if DOMA said the states couldn’t issue marriage licenses to gays, and I’m sure there are “states’ rights” Congresscritters who would be more than happy to do that, I could definitely see that as hypocrisy. [Previous page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=9) [Next page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=11)