# Federal judge rules DOMA unconstitutional! **URL:** \ **Category:** Great Debates\ **Created:** [July 8, 2010, 10:04pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019 "2010-07-08T22:04:24Z")\ **Posts on this page:** 9\ **Page:** 5
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 12, 2010, 2:25pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/81 "2010-07-12T14:25:58Z")
> [@NotreDame05](#): > > This is not correct. I never made the claim the 9th Amendment was a limitation on the powers of only the executive and legislative branches. This is, as I said before, a strawman argument. Try addressing what I did say, not what you wanted me to say. Here’s what you said - > [@NotreDame05](#): > > The 9th Amendment was conceived to serve as a restriction on the powers of the legislative and executive branches and so it is dubious to think these two branches should be permitted to interpret the very amendment serving as a restriction on their powers. So it is correct, and you are being other than factual in your remarks. Regards, Shodan ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 12, 2010, 2:50pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/82 "2010-07-12T14:50:42Z")
> [@Shodan](#): > > Here’s what you said - So it is correct, and you are being other than factual in your remarks. > > Regards, > Shodan No, it is not correct. Here is my entire remark in context. \*Furthermore, the 9th Amendment’s meaning was not something Madison or others would have left to the branches of the federal government to interpret, at least not the congressional and executive branches. The 9th Amendment was conceived to serve as a restriction on the powers of the legislative and executive branches and so it is dubious to think these two branches should be permitted to interpret the very amendment serving as a restriction on their powers. \* I said nothing, absolutely nothing to suggest the judiciary is not limited to the powers enumerated to it in Article III of the U.S. Constitution. In addition, I said absolutely nothing to suggest anything to the contrary of the judicial branch may exercise only those powers enumerated to it. Nothing. You quite simply are creating strawman arguments and you are not correctly adhering to the facts of my statement. Now, perhaps you’d like to comment on what my remark says, and not your unpleasant alternate reality of what you wanted my statement to say. ---
**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:** [July 12, 2010, 2:58pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/83 "2010-07-12T14:58:35Z")
> [@Laudenum](#): > > I’m slightly confuzzled at this decision (I don’t live in a federal country so this is new to me) > > My understanding is that : > > The federal government gives money to states to give to certain people. > The federal government defines marriage a certain way. > Certain states define marriage a different way. > Judge says that the federal government must use the States’ definition. > > Does this not mean that those states with gay marriage will receive more money from the federal government than those without it? > Does this mean that a State could introduce it’s own retirement criteria or some other criteria, and the federal government would have to honour it? > > Does this not effectively force states without gay marriage to subsidise those that have it? Interesting question. The short answer is that some states already subsidize others. This is based on some degree on the major local industries. For example, farmers and car manufacturers were once the backbone of the US economy, but are now lead weights tied to its feet. Both require an awful lot of government cheese, and since both are labor-intensive, it’s really in everyone’s interest to keep them going while we figure out something else for all those people to do. States also subsidize one another based on simple demographics; states with a lot of useless old people are, naturally, less economically productive than younger, more work-y states. Maine, Vermont, Florida, Montana and West Virginia have the oldest populations, and all but Vermont are in the bottom half of the table in per capita income. However, those old people draw lots of federal benefits (Social Security retirement benefits, Medicare, etc.) that the rest of us don’t. The point is, extending benefits to same-sex spouses will indeed benefit SSM-friendly states, but less so than about a million other things. For one thing, in relationships where both partners work, they will probably waive adding each other to their health insurance policies (which costs money). It should also be noted that Massachusetts and California, two of the three states which have in some form legalized SSM, have among the lowest marriage rates in the nation, as measured by the number of marriages per single female over the age of 15 (both are in the top 5). So, extending benefits to same-sex partners is, at least in those two states, likely to do no more than even things out a bit. The Tax Foundation publishes [a handy-dandy table](http://www.taxfoundation.org/research/show/22685.html) which shows which states benefit the most from federal spending (relative to the federal taxes they pay) and which benefit the least. California (at least up to 2005) was among the least well-compensated for their tax paying, getting just $0.78 back for each dollar it paid in taxes (despite all those defense contracts), or the 43rd-worst deal in the nation. Same story with Massachusetts - $0.82 back for each dollar in taxes paid. For reasons I don’t quite understand, but assume has something to do with defense spending, New Mexico has gotten the best return on its Federal tax investment every single year since 1981. Otherwise, the list of states which are least likely to economically benefit from gay marriage in this regard (ie., the ones least likely to allow it) are also largely the ones which benefit the most from federal spending - Alabama, Mississippi, Louisiana, Georgia, the Dakotas, and so on. Conservative places, in other words. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [July 12, 2010, 3:11pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/84 "2010-07-12T15:11:10Z")
> [@NotreDame05](#): > > Now, perhaps you’d like to comment on what my remark says, and not your unpleasant alternate reality of what you wanted my statement to say. I vastly prefer my alternate reality of what I wanted you to say. It’s far from unpleasant: **NotreDame05** : “Wow, Rhythmdvl, you’re such a nice guy. Everyone should buy you an ice cream!” Any takers? No? Damn. I don’t think it’s diving down to the world of semantics to focus on the existence/non-existence of “only” in the original quote in question. There is the statement: “The 9th Amendment was conceived to serve as a restriction on the powers of the legislative and executive branches.” And the statement: “I never made the claim the 9th Amendment was a limitation on the powers of \*\*\*only \*\*\*the executive and legislative branches.” (emphasis added) Where’s the conflict? But that’s kind of irrelevant. If this was some sort of bizarre contract dispute where words and their intent were binding, that would be one thing. But it’s not. It’s GD. Jumping on an apparent (and IMHO mistaken) inconsistency to prove some larger point, rather than granting leave to amend if need be or addressing the overall point itself is a bit of smoke and mirrors. Speaking of smoke and mirrors, can I get a bit of clarification to the air? One line of banter has to do with the relative absurdity of the claim that it’s possible to form a coherent and consistent theory of judicial interpretation based solely on the plain text and/or the original intent of the Framers. A second line seems to be about whether or not the determination and protection of a right is a “power” or not as construed by the Tenth Amendment–the immediate question is the relation between the 9th and 10th. There are others, of course, but those two seemed somewhat central to the back-and-forth at hand. Clarifying what your intention is in a post might help communicate that point and avoid talking past each other. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [July 12, 2010, 4:44pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/85 "2010-07-12T16:44:48Z")
Deleted - already answered ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [July 12, 2010, 4:53pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/86 "2010-07-12T16:53:57Z")
> [@Bricker](#): > > This same analysis, when applied to the health care lawsuits, should result in a win for Cuccinelli and the states. How do you get to this? The analysis here (the 10th Amendment analysis at least) seems very clear that it is based on the status of Family Law. The opinion states this multiple times. > [@](#): > > State control over maritable status predates the Constitution. > [@](#): > > The First Circuit has upheld federal regulation of family law only where firmly rooted in an enumerated power (p.24). The enumerated power claimed here is the spending clause, and the court performs the test from _South Dakota v. Dole_ and found it not to meet it - findign that DOMA wasn’t rooted in the spending clause. > [@](#): > > That DOMA plainly intrudes on a core area of state sovereignty - the ability to define the marital statis of its citizens - also convinces the court that the statute violates the Tenth Amendment. (p.28) > [@](#): > > [F]amily law … is often held out as the arhetypal area of local concern. (p. 29) > [@](#): > > [T]he history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is ‘truly local’ in character. (p.31). These arguments simply aren’t as strong when it comes to the health care issue - that’s far easier to root in the Spending Clause. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [July 12, 2010, 10:58pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/87 "2010-07-12T22:58:18Z")
> [@villa](#): > > The enumerated power claimed here is the spending clause, and the court performs the test from _South Dakota v. Dole_ and found it not to meet it - findign that DOMA wasn’t rooted in the spending clause. In addition, where DOMA failed the _Dole_ test was because of the Equal Protection violation. I don’t see how that’s relevant to health care reform. Although I am confused as to whether the whole decision rests on that finding or not. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 13, 2010, 1:06pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/88 "2010-07-13T13:06:10Z")
> [@NotreDame05](#): > > No, it is not correct. Here is my entire remark in context. \*Furthermore, the 9th Amendment’s meaning was not something Madison or others would have left to the branches of the federal government to interpret, at least not the congressional and executive branches. The 9th Amendment was conceived to serve as a restriction on the powers of the legislative and executive branches and so it is dubious to think these two branches should be permitted to interpret the very amendment serving as a restriction on their powers. \* > > I said nothing, absolutely nothing to suggest the judiciary is not limited to the powers enumerated to it in Article III of the U.S. Constitution. In addition, I said absolutely nothing to suggest anything to the contrary of the judicial branch may exercise only those powers enumerated to it. Nothing. > > You quite simply are creating strawman arguments and you are not correctly adhering to the facts of my statement. > > Now, perhaps you’d like to comment on what my remark says, and not your unpleasant alternate reality of what you wanted my statement to say. So you now have been corrected, and have been shown that the Ninth (and Tenth) Amendments serve as a limit on the powers also of the judiciary? The courts may not enumerate rights. Correct? I want to be quite certain that you are not going to deny having said what you have said. So when you said “the powers of the legislative and executive branches” you meant to say “the powers of the legislative and executive and judiciary branches”. And this sentence - > [@](#): > > The 9th Amendment was conceived to serve as a restriction on the powers of the legislative and executive branches and so it is dubious to think these two branches should be permitted to interpret the very amendment serving as a restriction on their powers I recommend that you imply deny having said it, because if you meant the judiciary is limited to powers by the Ninth, it makes no sense at all. Regards, Shodan ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [July 13, 2010, 8:54pm UTC](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019/89 "2010-07-13T20:54:44Z")
> [@Shodan](#): > > So you now have been corrected, and have been shown that the Ninth (and Tenth) Amendments serve as a limit on the powers also of the judiciary? The courts may not enumerate rights. Correct? > > I want to be quite certain that you are not going to deny having said what you have said. > > So when you said “the powers of the legislative and executive branches” you meant to say “the powers of the legislative and executive and judiciary branches”. > > And this sentence - I recommend that you imply deny having said it, because if you meant the judiciary is limited to powers by the Ninth, it makes no sense at all. > > Regards, > Shodan Here is what I said Shodan. "_Furthermore, the 9th Amendment’s meaning was not something Madison or others would have left to the branches of the federal government to interpret, at least not the congressional and executive branches. The 9th Amendment was conceived to serve as a restriction on the powers of the legislative and executive branches and so it is dubious to think these two branches should be permitted to interpret the very amendment serving as a restriction on their powers._ Do you care to comment on these remarks? [Previous page](https://boards.straightdope.com/t/federal-judge-rules-doma-unconstitutional/546019.md?page=4)