# 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:** 7
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 26, 2011, 1:09am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/121 "2011-02-26T01:09:57Z")
> [@John\_Mace](#): > > Can you cite the SCOTUS ruling that declares gays to be a protected class awarded intermediate or strict scrutiny? Because if you can’t, then your statement is of questionable veracity. Try this question, **John** : With respect to Federal recognition, what distinction do 45 states have with respect to all marriages authorized under their 10th Amendment aegis that is not true for the other five states? There’s an instance of equal protection violation that has nothing to do with whether gays are a protected class. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [February 26, 2011, 1:16am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/122 "2011-02-26T01:16:00Z")
> **[Law.com](https://www.law.com/?id=1202463150479&Prop__Plaintiffs_See_Crucial_Language_in_Supreme_Courts_Law_School_Ruling&hbxlogin=1&slreturn=20230714110147)** > > Law.com delivers news, insights and resources that allow legal professionals to anticipate opportunities, adapt to change, and prepare for future success. Christian Legal Society v. Martinez? ---
**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 26, 2011, 1:16am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/123 "2011-02-26T01:16:23Z")
> [@Polycarp](#): > > Try this question, **John** : With respect to Federal recognition, what distinction do 45 states have with respect to all marriages authorized under their 10th Amendment aegis that is not true for the other five states? There’s an instance of equal protection violation that has nothing to do with whether gays are a protected class. I’m not following your argument. Can you just lay it out? I brought up the level of scrutiny because that was what Holder used as his argument. Was it not? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [February 26, 2011, 1:39am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/124 "2011-02-26T01:39:11Z")
> [@John\_Mace](#): > > Can you give some examples? I’m not aware of any, and maybe the newspapers are sensationalizing this, but they sure seem to like calling it unprecedented. One that comes to mind is that after Congress passed some cable TV regulations over George H. W. Bush’s veto, the administration declined to defend them. Take a look at this post. It names some of the more prominent cases – [http://hunterforjustice.typepad.com/hunter\_of\_justice/2009/06/when-does-justice-department-decline-to-defend-statutes.html](http://hunterforjustice.typepad.com/hunter_of_justice/2009/06/when-does-justice-department-decline-to-defend-statutes.html) ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 26, 2011, 5:01am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/125 "2011-02-26T05:01:15Z")
> [@John\_Mace](#): > > Can you cite the SCOTUS ruling that declares gays to be a protected class awarded intermediate or strict scrutiny? Because if you can’t, then your statement is of questionable veracity. It’s the 14th Amendment, and the relevant phrase is “rational basis.” “Protected class” doesn’t play into it. ---
**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 26, 2011, 2:38pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/126 "2011-02-26T14:38:57Z")
> [@Diogenes\_the\_Cynic](#): > > It’s the 14th Amendment, and the relevant phrase is “rational basis.” “Protected class” doesn’t play into it. OK. So you can’t cite a SCOTUS ruling to support your opinion. I didn’t think you could. Don’t get me wrong… your opinion might be correct, but it isn’t clearly so. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 26, 2011, 2:58pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/127 "2011-02-26T14:58:13Z")
Then, beyond simply doing your best trial-lawyer impersonation, perhaps you could help us all by explaining just what “rational basis” you think applies. :dubious: ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [February 26, 2011, 3:06pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/128 "2011-02-26T15:06:49Z")
> [@ElvisL1ves](#): > > Then, beyond simply doing your best trial-lawyer impersonation, perhaps you could help us all by explaining just what “rational basis” you think applies. :dubious: I believe Magellan’s argument fits here: _Someday_, perhaps decades from now, _something_, perhaps something particularly terrible, with happen. He can’t say what specifically, but you can’t prove him wrong. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [February 26, 2011, 3:16pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/129 "2011-02-26T15:16:35Z")
> [@John\_Mace](#): > > OK. So you can’t cite a SCOTUS ruling to support your opinion. I didn’t think you could. Don’t get me wrong… your opinion might be correct, but it isn’t clearly so. Psst! Look up, John. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 26, 2011, 4:06pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/130 "2011-02-26T16:06:07Z")
> [@Mr\_Smashy](#): > > Wait… so you decry the Republicans for doing the dirty tricks first, in general (at least, that’s what I think your first sentence says)… then want Obama to do it, on the assumption that the GOP will do even worse somehow down the road? Yes > [@Mr\_Smashy](#): > > Is that the way our government is supposed to work? Ask the Republicans. Are threats of filibusters supposed to stop legislation? Are bills supported by Democrats supposed to pass with 60 votes while Republican bills pass with simple majority? Is it ok assume the President is a foreigner Muslim communist because you haven’t personally seen his birth certificate? Are senators supposed to pray for the death of another senator in order to keep him from voting? > [@Mr\_Smashy](#): > > And again, to the group: is there any precedent for this? Has a president just unilaterally decided to ignore a law because he didn’t like it? > > Frankly, this reminds me a little of the complaining about W’s ‘signing statements’ he used to implement, which were his unique interpretations of laws. I seem to remember people on this board complaining, calling him King George, The Decider In Chief, not following the law/process, etc. > > This seems 100x worse. I would say Bush specifically line-item vetoing things he didn’t like was much worse. Those were laws passed by Congress that he got to pick and choose which ones were ok and which ones were not. What Obama did was to determine, after lower courts struck down various aspects of homophobia in other laws, that it would be inconsistent to defend DOMA when courts have said similar things were unconstitutional. Obama didn’t do this in a vacuum, there are tons of precendent, as specifically said by Holder, that laws restricting gays were all full of bigoted bullshit. There has not been one argument ever advanced against gays that wasn’t prejudicial and full of hate ---
**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 26, 2011, 4:34pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/131 "2011-02-26T16:34:23Z")
> [@E-Sabbath](#): > > Psst! Look up, John. Close, but not quite. As your cite indicates, that is the opinion of the plaintiffs in the case. > [@](#): > > To the plaintiffs, Ginsburg’s language solidifies their argument that gays deserve enhanced constitutional protection. Emphasis added. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 26, 2011, 4:58pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/132 "2011-02-26T16:58:13Z")
> [@John\_Mace](#): > > OK. So you can’t cite a SCOTUS ruling to support your opinion. I didn’t think you could. Don’t get me wrong… your opinion might be correct, but it isn’t clearly so. True. But the lack of precedent aside, I can’t imagine the logic that states that sexual preference shouldn’t be subjected to a level of scrutiny greater than rational basis. If homosexuality isn’t a suspect class (this is not a subtle insult, I mean from a constitutional perspective), I don’t know what is. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 26, 2011, 5:02pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/133 "2011-02-26T17:02:32Z")
> [@John\_Mace](#): > > I’m not following your argument. Can you just lay it out? > > I brought up the level of scrutiny because that was what Holder used as his argument. Was it not? Sorry for the delay in answering. The point I was going for is that in the Massachusetts suit, it is noted that the Federal definition of a valid marriage had always been one contracted in accord with the laws of the forum state. A marriage validly contracted in Mississippi under Mississippi law was a valid marriage in the other 49 states and for Federal purposes. DOMA acted to change that, to refuse Federal recognition of some marriages from some states and to give states discretion on whether to recognize them. This is in itself a clear equal protection violation without reference to sexual orientation – what 45 states may do for their citizens, i.e., authorize marriages that will be recognized at the Federal level and by other states, five may not. And it is truly debatable whether the tortured reading of the “single uniform rule” clause of Article IV gives Congress the constitutional power to do so. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 26, 2011, 5:28pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/134 "2011-02-26T17:28:22Z")
> [@John\_Mace](#): > > OK. So you can’t cite a SCOTUS ruling to support your opinion. Don’t need one. The Constitution speaks for itself. ---
**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 26, 2011, 5:39pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/135 "2011-02-26T17:39:25Z")
> [@Stratocaster](#): > > True. But the lack of precedent aside, I can’t imagine the logic that states that sexual preference shouldn’t be subjected to a level of scrutiny greater than rational basis. If homosexuality isn’t a suspect class (this is not a subtle insult, I mean from a constitutional perspective), I don’t know what is. If you accept the “logic” of suspect classes, and you accept that homosexuality is biological and not a “lifestyle choice”, then yes. The latter issue is going to be the sticking point, IMO. It’s certainly my best understanding that it’s biological, and I doubt you could get many scientists to disagree with that, but I don’t see it as a slam dunk in a court of law. **Polycarp** : I’m just not seeing it as a “clear violation”, in the sense that no reasonable person could disagree. There were plenty of Senators who are savvy lawyer types who voted for this law, and they didn’t think it was a “clear violation” of the EPC. **Dio** : That’s a cute answer, but the constitution doesn’t say anything about homosexuality. That’s something we have to interpret into the Constitution. And that’s the problem. You and I might interpret it a certain way, but that’s not the objectively correct interpretation. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 26, 2011, 5:46pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/136 "2011-02-26T17:46:57Z")
The Constitution doesn’t _have_ to say anything about homosexuality. They’re covered by “equal protection.” And that’s not just my interpretation, by the way, but the conclusion of Constitutional experts (like Eric Holder and Barack Obama) who are much more qualified than either of us. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 26, 2011, 5:56pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/137 "2011-02-26T17:56:31Z")
> [@John\_Mace](#): > > That’s a cute answer, but the constitution doesn’t say anything about homosexuality. That’s something we have to interpret into the Constitution. And that’s the problem. You and I might interpret it a certain way, but that’s not the objectively correct interpretation. “No State shall …deny to any person within its jurisdiction the equal protection of the laws.” That’s any person. And equal protection. But you know that. ☹ ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 26, 2011, 6:31pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/138 "2011-02-26T18:31:45Z")
> [@ElvisL1ves](#): > > “No State shall …deny to any person within its jurisdiction the equal protection of the laws.” > > That’s any person. And equal protection. > > But you know that. ☹ It’s not absolute, which I’m sure you also know. FTR, I agree that it should be interpreted to included homosexuals as a suspect class, but I don’t think it’s a clear cut case. ---
**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 26, 2011, 6:34pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/139 "2011-02-26T18:34:49Z")
> [@Diogenes\_the\_Cynic](#): > > The Constitution doesn’t _have_ to say anything about homosexuality. They’re covered by “equal protection.” You could be right. > [@](#): > > And that’s not just my interpretation, by the way, but the conclusion of Constitutional experts (like Eric Holder and Barack Obama) who are much more qualified than either of us. Nonsense. They are not the only “constitutional experts” out there, and it’s unclear what the consensus among such “experts” is. And we all know that the only “experts” who matter are the 9 SCOTUS justices, who have yet to weigh in on the matter. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 26, 2011, 6:34pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/140 "2011-02-26T18:34:54Z")
> [@Lakai](#): > > It’s not absolute, which I’m sure you also know. Of course. But I was addressing **John** ’s “point”, the same as one \*\*Shodan \*\*also routinely fails with, that anything not specifically mentioned in the Constitution is not covered at all. Of course, they \*could \*mean that gays aren’t “persons”. [Previous page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=6) [Next page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=8)