# Hoo boy. The Supremes are taking on DOMA and Prop 8. **URL:** \ **Category:** Great Debates\ **Created:** [December 7, 2012, 10:15pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363 "2012-12-07T22:15:27Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [December 9, 2012, 2:00pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/41 "2012-12-09T14:00:16Z")
> [@Little\_Nemo](#): > > Marriage has traditionally been a matter of state law. Each state sets its own laws on who can get married. So the current situation is some states allow same-sex marriages and some states don’t. > > What makes this a constitutional issue is the “Full Faith and Credit Clause” in the Constitution which says every state is suppose to recognize the validity of a legal action performed in another state. So if you get married in one state and then move to another state, you don’t have to get remarried in your new home because your original marriage is recognized as valid. > > The Defense of Marriage Act (aka DOMA) created an exception for gay marriages when it was enacted in 1996. It said that states that do not allow same-sex marriages do not have to recognize the validity of same-sex marriages that were performed in another state. You’re referring to section 2 of DOMA, which says that state A does not have to recognize a same-sex marriage entered into in state B. I disagree slightly with your history, but ultimately this is tangential, because section 2 was not at issue in _Windsor_, the case that the SCt has agreed to review. The appellate court in _Windsor_ reviewed section 3 of DOMA, which says that the _federal_ government does not recognize SSM for purposes of federal law. (In the case at issue, the subject was the federal estate tax and the availability of the spousal exemption). Full Faith and Credit thus will not be up for review by the SCt, because the FFC clause does not apply to the federal government. The constitutional issue in _Windsor_ is purely equal protection: Whether section 3 of DOMA gets reviewed under a traditionally-lenient rational-basis standard or an intermediate one, and whether it satisfies whichever standard is chosen. ---
**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:** [December 9, 2012, 2:05pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/42 "2012-12-09T14:05:47Z")
> [@YogSosoth](#): > > Uh, what do you mean contrary to what I said? :dubious: Exactly what I said. The march toward equality for gays will continue moving forward regardless of what the SCOTUS decides. Even the worst case scenario does not mean being “transported back in time to the 1950’s”. Why do you think it would? Homosexual acts were a crime in the 1950s. Whatever the SCOTUS decides, we’ll still have legal SSM or civil unions in about a dozen states, gays will be able to serve openly in the military, and more and more people every year are accepting of same sex relationships. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 9, 2012, 2:11pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/43 "2012-12-09T14:11:00Z")
I think Romer can be distinguished. What bothered Kennedy so much was that the voters in Colorado enshrined in the state constitution an amendment that said neither the state nor any subdivision could pass a civil rights law protecting homosexuals. What Kennedy said was that this enshrined in the state constitution a bar to one particular class of people (which he noted did not rise to the level of strict scrutiny nor bear upon a fundamental right) to seek redress in the legislature. In other words alcoholics, fat people, child rapists, men who wore blue ties, ugly people, bearded men, and stamp collectors could each petition the legislature for special protection against discrimination, but gay people could not. It basically singled out gays, to the exclusion of all others from participation in the political process of civil rights. Depending on your view, that may be a distinction without a difference, but Kennedy’s view could be that things that personal intimate sexual activity and petitioning the legislature are fundamental things which a state may not take away from its citizens, but marriage is a public act which has the indicia of approval from the state. As such, it may regulate who can get married as a matter of public policy. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [December 9, 2012, 2:14pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/44 "2012-12-09T14:14:24Z")
The question of the standard of review is possibly of interest here because of the way _Windsor_ reached the SCt. Two federal appellate courts struck down DOMA, the Second Circuit in _Windsor_, and the First Circuit in a case called _Gill_, but they got there by different routes. The First Circuit ruled that because the SCt has never applied any kind of heightened scrutiny to laws discriminating between gays and straights, it couldn’t do so either, so it had to evaluate DOMA according to the lowest level of review: Is there a “rational basis” supporting the law. Traditionally, rational-basis review was very forgiving, and it essentially always meant that a law would be upheld. However, the First Circuit ruled that the SCt had been trending toward making rational-basis review tougher in cases involving gays (which I think is a fair reading of _Lawrence v. Texas_), and so in _Gill_ it applied a “rational basis with teeth” approach and found that DOMA did not meet this standard. The Second Circuit, in _Windsor_, went a different way. It ruled that laws burdening gays as a class should be subject to intermediate scrutiny, not rational basis review, even though the SCt has never applied intermediate scrutiny to any of its cases involving discrimination against gays. It struck down section 3 of DOMA because it found that the law could not satisfy that somewhat higher standard. The dissent in _Windsor_ argued that rational-basis review should apply, and that judge concluded that DOMA would satisfy that level of review; that’s why he would have upheld DOMA. The SCt only agreed to review _Windsor_ and not _Gill_, and I don’t understand why. I’ve been pondering the possibility that the SC thinks _Windsor_ overreached on the question of the standard of review and will reverse on that basis, but I don’t see how to square that with _Gill_. The SCt could rule in such a way that allows _Gill_ to stand, but that would make the whole review of _Windsor_ an empty doctrinal exercise. Or they could rule in such a way that effectively overrules _Gill_, but why do that without taking that case and letting those parties argue? ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [December 9, 2012, 2:25pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/45 "2012-12-09T14:25:08Z")
> [@gracer](#): > > I’m not US-ian so I don’t really know how these things work. It sounds from reading this thread that judges “go with” their buddy the other judge. Do they do that? They make important decisions based on what someone else does, or the fact that they are a little annoyed with the way something went last time? Or is that just interpretation? I understand they are only human and make human decisions, but do these things really come into play? I’m asking because I get that impression from this thread. Well, really very little is known about the inner workings of the Court, which leads to lots of speculation and occasional unverifiable leaks of what happened (as occurred in the case upholding the Affordable Care Act). Personally, I think that the rather petty notions expressed here that you find strange may largely be fictions but it is hard to know for sure. There certainly is, however, some jockeying involved. For example, if the Chief Justice is in the majority then he gets to decide who writes the opinion of the Court, which has led to situations where it is at least believed that the Chief Justice might have voted the way he did mainly so that he was with the majority and could thus write the opinion himself and prevent it from going too far. (The other justices in the majority are then free to write their own concurring opinions that go further…but at least the official opinion on the Court is then limited to what the Chief justice thinks.) I also believe that at least one of the conservative justices (Rehnquist?) in the case that compelled Nixon to turn over the Watergate tapes wanted to vote the other way on the merits, but decided to vote with the majority so that the decision would be unanimous. His reason was that he thought that a unanimous ruling would lessen the possibility of Nixon defying the Court, which would have created a real constitutional crisis. ---
**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:** [December 9, 2012, 3:41pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/46 "2012-12-09T15:41:23Z")
> [@jshore](#): > > I also believe that at least one of the conservative justices (Rehnquist?) in the case that compelled Nixon to turn over the Watergate tapes wanted to vote the other way on the merits, but decided to vote with the majority so that the decision would be unanimous. His reason was that he thought that a unanimous ruling would lessen the possibility of Nixon defying the Court, which would have created a real constitutional crisis. No, Rehnquist recused himself on the Nixon decision. He had worked in the White House Legal Counsel’s office before being appointed to the Supreme Court and knew many of the people involved in the issue. ---
**Author:** ![ctnguy](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@ctnguy](https://boards.straightdope.com/u/ctnguy)\ **Post date:** [December 9, 2012, 4:24pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/47 "2012-12-09T16:24:13Z")
> [@Tom\_Tildrum](#): > > The SCt only agreed to review _Windsor_ and not _Gill_, and I don’t understand why. If they heard _Gill_, Kagan [probably would have recused herself](http://www.scotusblog.com/2012/11/kagan-doma-and-recusal/). ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [December 9, 2012, 10:55pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/48 "2012-12-09T22:55:18Z")
> [@Little\_Nemo](#): > > No, Rehnquist recused himself on the Nixon decision. He had worked in the White House Legal Counsel’s office before being appointed to the Supreme Court and knew many of the people involved in the issue. Yeah…You’re right. The [Wikipedia article](http://en.wikipedia.org/wiki/United_States_v._Nixon) just says that the 8 justices worked hard to reach a unanimous verdict, without saying that there was any justice in particular who was particularly inclined to vote the other way: > [@](#): > > Less than three weeks later the Court issued its decision; the justices struggled to write an opinion that all eight could agree to. The stakes were so high, in that the tapes most likely contained evidence of criminal wrongdoing by the President and his men, that they wanted no dissent. All contributed to the opinion and Chief Justice Burger delivered the unanimous decision. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [December 10, 2012, 4:42am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/49 "2012-12-10T04:42:16Z")
> [@John\_Mace](#): > > Exactly what I said. The march toward equality for gays will continue moving forward regardless of what the SCOTUS decides. Even the worst case scenario does not mean being “transported back in time to the 1950’s”. Why do you think it would? Homosexual acts were a crime in the 1950s. Whatever the SCOTUS decides, we’ll still have legal SSM or civil unions in about a dozen states, gays will be able to serve openly in the military, and more and more people every year are accepting of same sex relationships. That depends on how broadly the Supremes decide. If they strike down the law broadly for all the states, they can effectively criminalize gay marriage everywhere. That would probably lead to an increase in the states banning gays from a variety things, like FL with their anti-gay adoption thing. It won’t be Lawrence vs. Texas, but close. Give these hateful homophobes some power and they’ll run with it. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [December 10, 2012, 4:54am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/50 "2012-12-10T04:54:52Z")
> [@YogSosoth](#): > > That depends on how broadly the Supremes decide. If they strike down the law broadly for all the states, they can effectively criminalize gay marriage everywhere. . . . ??? Criminalize? Even in the states that have legalized it? I don’t see how you get there from here. None of the laws that they are looking at go anywhere near that far. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [December 10, 2012, 5:37pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/51 "2012-12-10T17:37:25Z")
> [@jtgain](#): > > Depending on your view, that may be a distinction without a difference, but Kennedy’s view could be that things that personal intimate sexual activity and petitioning the legislature are fundamental things which a state may not take away from its citizens, but marriage is a public act which has the indicia of approval from the state. As such, it may regulate who can get married as a matter of public policy. But here is where I get confused by why they would make it something for the states to regulate: assume they uphold the Second Circuit in the Windsor case and agree with the Ninth Circuit and strike down Prop 8 but limit the impact to the states covered by that Circuit. The result would be a situation where residents of states that have recognized SSM would also have their marriages recognized by the Federal government. Do I have this correct so far? If not please explain where I am wrong. Assuming I do have it correct, isn’t it apparent there will eventually be a situation where a couple gets married in California and maybe even adopts a child. After several years they move to Florida. Do they now lose the rights they were previously granted by the Federal government because they now live in a state that bans SSM? And is their child now not their child because they live in a state that bans gay couples from adopting? I understand if the SCOTUS mandates SSM rights in all 50 states there will be an uproar in certain states but they have to realize going with some weird patchwork scheme would only create a confusing conflict of rights from state to state. If there is a majority on the court willing to uphold both of these lower court decisions I can’t imagine they would be eager to go with something like that. If I have misunderstood something please explain what I have missed. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [December 10, 2012, 6:06pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/52 "2012-12-10T18:06:32Z")
> [@Trinopus](#): > > ??? Criminalize? Even in the states that have legalized it? I don’t see how you get there from here. None of the laws that they are looking at go anywhere near that far. If the Supremes rule that that gay marriage isn’t a right, is not protected, and is an unfair burden on straight people or some other nonsense, yes I can see that as effectively killing gay marriage and making it illegal. ---
**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:** [December 10, 2012, 6:11pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/53 "2012-12-10T18:11:50Z")
> [@](#): > > All contributed to the opinion and Chief Justice Burger delivered the unanimous decision. This was a tactic that Burger used and the other justices hated. As Chief Justice, Burger always voted last and he could assign the writing of a decision when he was in the majority. So Burger would often argue hard against a decision during debates. But then when the voting occurred, he would switch if he saw his side was going to lose anyway. Then as an official member of the majority, he would assign the writing of the majority decision to himself and write what the other members of that majority saw as the narrowest possible decision and add in a number of arguments he had previously made when he was arguing against the decision. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 10, 2012, 6:22pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/54 "2012-12-10T18:22:45Z")
> [@Kolak\_of\_Twilo](#): > > Assuming I do have it correct, isn’t it apparent there will eventually be a situation where a couple gets married in California and maybe even adopts a child. After several years they move to Florida. Do they now lose the rights they were previously granted by the Federal government because they now live in a state that bans SSM? And is their child now not their child because they live in a state that bans gay couples from adopting? Well, adoption is introducing another aspect (even though Florida repealed its law last year against gays adopting children), but I would say that DOMA doesn’t address that, so adoption is a judicial act entitled to FF&C. Does it violate another state’s public policy? Fire up the lawsuits again. The marriage? If SCOTUS determines that SSM is not a fundamental right, then it would be no different than if California allowed you to possess marijuana, but Florida didn’t and if you moved to Florida could you keep your marijuana? (And that’s pretty much on point). So, I would say “YES”. If SSM is just a state privilege, then you lose that privilege if you leave the state. If it is a fundamental right, then no state can deny it.. ---
**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:** [December 10, 2012, 6:32pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/55 "2012-12-10T18:32:14Z")
The real question here is whether Kennedy will come down off his made-up fence. > [@LawMonkey](#): > > Scalia will, without a doubt, want to let both stand. (Seriously, have you read the way this guy writes when teh ghey comes up?) Thomas will probably go with Scalia. I’m going to give Scalia the benefit of the doubt. After all, as he said himself: > [@](#): > > This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad). [QUOTE=Yogsosoth] If the Supremes rule that that gay marriage isn’t a right, is not protected, and is an unfair burden on straight people or some other nonsense, yes I can see that as effectively killing gay marriage and making it illegal. [/QUOTE] This is silly. It’s miles beyond the scope of the actual issue they are being asked to address. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [December 10, 2012, 6:34pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/56 "2012-12-10T18:34:02Z")
It seems to me that adoption–once accomplished–is a status of individuals, not couples. If an opposite-sex couple who are adoptive parents gets divorced, they are, each, still parents. So even a gay couple that was ‘unmarried’ by a move would retain the same parental status. Even states that barred adoptions by gays from _occurring_ didn’t prohibit gay folks from _being_ parents, right? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 10, 2012, 6:37pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/57 "2012-12-10T18:37:46Z")
So RNATB, you think Scalia will go the stare decisis route? I think not…🙂 ---
**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:** [December 10, 2012, 6:40pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/58 "2012-12-10T18:40:53Z")
> [@jtgain](#): > > So RNATB, you think Scalia will go the stare decisis route? I think not…🙂 Well, I think he’d vote to overturn _Lawrence_ - after all, he voted against it in the first place. However, I think it’s more important to him that the Court adopt some sort of logical framework for appellate review of laws burdening gays, and given that he’s not going to get “regular” rational basis, he might just go for intermediate scrutiny. ---
**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:** [December 10, 2012, 6:52pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/59 "2012-12-10T18:52:36Z")
> [@YogSosoth](#): > > If the Supremes rule that that gay marriage isn’t a right, is not protected, and is an unfair burden on straight people or some other nonsense, yes I can see that as effectively killing gay marriage and making it illegal. Only if by “effectively” you mean “not at all”. But why don’t you flesh this out and show us the steps leading from this decision to SSM being made illegal, nationally. Keep in mind that the crime I was talking about (from the 50s) was the simple act of homosexual sex. Are you now going to tell us that they are going to overturn _Lawrence_, too? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 10, 2012, 6:54pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/60 "2012-12-10T18:54:03Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, I think he’d vote to overturn _Lawrence_ - after all, he voted against it in the first place. However, I think it’s more important to him that the Court adopt some sort of logical framework for appellate review of laws burdening gays, and given that he’s not going to get “regular” rational basis, he might just go for intermediate scrutiny. He hasn’t adopted that position with abortion. He and Thomas consistently say that the Court has it all wrong with its abortion jurisprudence and that’s why they concur/dissent as the case may be (See Carhart). I can’t see any reason why he wouldn’t do that with respect to any type of gay rights.. [Previous page](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363.md?page=2) [Next page](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363.md?page=4)