# 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:** 5
**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 11, 2012, 4:24pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/81 "2012-12-11T16:24:51Z")
> [@Dr.Drake](#): > > Are you sure about that? My understanding was that although only certain states allow first-cousin marriage, those marriages (once performed) were valid in all states. You appear to be correct. Apparently, [states generally recognize marriages of first cousins from other states](http://www.ncsl.org/issues-research/human-services/state-laws-regarding-marriages-between-first-cousi.aspx). > [@jtgain](#): > > You are assuming the result. Yes, I am saying,“If x is the result, isn’t this the likely outcome in practice?” Your point? :dubious: And as always, Justice Scalia stays just as charming as ever [by equating homosexuality and murder.](http://thehill.com/blogs/blog-briefing-room/news/272161-scalia-defends-equating-bans-on-gay-marriage-murder) ---
**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 11, 2012, 4:26pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/82 "2012-12-11T16:26:54Z")
> [@Simplicio](#): > > Thanks. I thought maybe they’d become legal again when the lower courts had overturned Prop 8, but I guess they imposed a stay pending appeal. We’ve had a very confusing history. The whole thing went like this (I may have some of the dates wrong, going by memory, but the sequence is correct): circa 2000, CA passes a proposition defining marriage as between one man and one woman circa 2005, Gavin Newsome (while mayor of SF) decides he as the ability to issue SSM licenses. Shorter after that, the courts declares those marriages unlawful. circa 2007, the CA SC decides that laws against SSM violate the constitution, and mandates SSM. Many SSM take place until… circa 2008, prop 8 is passed, which is a constitutional amendment banning SSM. circa 2010, the Federal Appeals Court for this region declares prop 8, itself, unconstitutional but suspends action pending appeal. In the meantime, though, marriages performed after the state court decision remain valid. Which brings us to today, as we await the SCOTUS’s decision on the matter. ---
**Author:** ![gracer](https://avatars.discourse-cdn.com/v4/letter/g/8e7dd6/32.png) [@gracer](https://boards.straightdope.com/u/gracer)\ **Post date:** [December 11, 2012, 4:33pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/83 "2012-12-11T16:33:28Z")
Thank you, **Polycarp** and **jshore**! Ignorance fought 🙂 ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [December 11, 2012, 5:59pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/84 "2012-12-11T17:59:04Z")
> [@Dr.Drake](#): > > Are you sure about that? My understanding was that although only certain states allow first-cousin marriage, those marriages (once performed) were valid in all states. Yes, quite sure. Arizona does not recognize first-cousin marriages that were performed in other states. I can dig up the statute if you’d like. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [December 11, 2012, 6:06pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/85 "2012-12-11T18:06:31Z")
> [@Kolak\_of\_Twilo](#): > > You appear to be correct. Apparently, [states generally recognize marriages of first cousins from other states](http://www.ncsl.org/issues-research/human-services/state-laws-regarding-marriages-between-first-cousi.aspx). “Generally” does not mean “always”. Arizona Revised Statutes Section § 25-112: Marriages valid by the laws of the place where contracted are valid in this state, except marriages that are void and prohibited by Section 25-101. Arizona Revised Statutes section § 25-101 A. Marriage between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the one-half as well as the whole blood, and between uncles and nieces, aunts and nephews and between first cousins, is prohibited and void. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [December 11, 2012, 6:10pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/86 "2012-12-11T18:10:51Z")
> [@Terr](#): > > Yes, quite sure. Arizona does not recognize first-cousin marriages that were performed in other states. I can dig up the statute if you’d like. Please, because that would make for some really interesting messes. I could marry my trainwreck of a cousin in Yuma, CA, and then, since we’re both single as far as Arizona is concerned, I could wander over to Yuma, AZ, and marry a nice Mexican and (assuming I switch orientations) create anchor babies, while my cousin could marry some ancient alcoholic she met in a karaoke bar. Again. What happens when the four of us go back to California? Who is married to whom? ---
**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 11, 2012, 6:15pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/87 "2012-12-11T18:15:43Z")
> [@Dr.Drake](#): > > Please, because that would make for some really interesting messes. I could marry my trainwreck of a cousin in Yuma, CA, and then, since we’re both single as far as Arizona is concerned, I could wander over to Yuma, AZ, and marry a nice Mexican and (assuming I switch orientations) create anchor babies, while my cousin could marry some ancient alcoholic she met in a karaoke bar. Again. What happens when the four of us go back to California? Who is married to whom? You and Ms. Trainwreck. CA would not recognize any marriage after the first one unless you were divorced first. Same for Uncle Sam. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [December 11, 2012, 6:24pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/88 "2012-12-11T18:24:26Z")
> [@John\_Mace](#): > > You and Ms. Trainwreck. CA would not recognize any marriage after the first one unless you were divorced first. Same for Uncle Sam. But if Arizona doesn’t recognize our marriage as a marriage, couldn’t we then legally marry a non-relative in Arizona? Actually, I suppose the same question is valid for my current situation (a man legally married to a man): could I legally marry a woman in Arizona without divorcing my husband? Never mind the fraud charges for the moment; would Arizona have grounds to refuse a licence on the basis of a marriage it doesn’t recognize? ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [December 11, 2012, 6:31pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/89 "2012-12-11T18:31:24Z")
You’re expecting laws to make sense? It’s not too hard to create a legal nightmare, if you set out to do it. Then die intestate, with lots of money, and let the chips fall where they may. What a circus! ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [December 11, 2012, 6:32pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/90 "2012-12-11T18:32:13Z")
> [@Dr.Drake](#): > > would Arizona have grounds to refuse a licence on the basis of a marriage it doesn’t recognize? I don’t see why not. They can refuse to issue marriage licenses to someone who has a marriage license in another State. The fact that Arizona doesn’t recognize that marriage as legal doesn’t prevent them from acknowledging its existence. ---
**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 11, 2012, 6:33pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/91 "2012-12-11T18:33:40Z")
> [@Dr.Drake](#): > > But if Arizona doesn’t recognize our marriage as a marriage, couldn’t we then legally marry a non-relative in Arizona? Your Uncle Sam would not be pleased. This is not unlike the current situation with pot in CO and WA. ---
**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 11, 2012, 6:38pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/92 "2012-12-11T18:38:10Z")
nm ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [December 11, 2012, 6:53pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/93 "2012-12-11T18:53:46Z")
> [@Dr.Drake](#): > > Please, because that would make for some really interesting messes. I could marry my trainwreck of a cousin in Yuma, CA, and then, since we’re both single as far as Arizona is concerned, I could wander over to Yuma, AZ, and marry a nice Mexican and (assuming I switch orientations) create anchor babies, while my cousin could marry some ancient alcoholic she met in a karaoke bar. Again. What happens when the four of us go back to California? Who is married to whom? Is this a needs answers fast post? ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [December 11, 2012, 7:20pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/94 "2012-12-11T19:20:27Z")
> [@Buck\_Godot](#): > > Is this a needs answers fast post? Sadly, sort of, but thankfully not involving me! (The cousin is real, as is the elderly man from the karaoke bar, chosen for his ability to enable her alcoholism. Upholding traditional marriage, one groom at a time!) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 11, 2012, 8:47pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/95 "2012-12-11T20:47:51Z")
> [@Simplicio](#): > > I dunno. I have a hard time seeing how the Feds and/or the CA State Constitution would need a rational basis to ban same-sex marriage but, say, Oklahoma doesn’t. I’m not following you. The Court could simply rule that marriage is a matter of state regulation. Just as states can deny incestuous, polygamous, and underage marriage, a state can deny same sex marriage. HOWEVER, by passing DOMA the federal government has encroached on state powers by refusing to recognize state laws that permit same sex marriage. There is no rational basis with teeth for this. Strike down this part of DOMA. California voters removed a right previously granted by the state constitution (really the state Supreme Court, but whatever) They had no rational basis with teeth to do this other than animus towards same sex couples. For Romer v. Evans reasons, Prop 8 is unconstitutional. SSM is legal in CA. There you go. A narrow ruling and my prediction of the outcome. (But I also said that the ACA would be upheld 7-2, so there you go) 🙂 ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [December 11, 2012, 9:14pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/96 "2012-12-11T21:14:16Z")
> [@jtgain](#): > > I’m not following you. The Court could simply rule that marriage is a matter of state regulation. Just as states can deny incestuous, polygamous, and underage marriage, a state can deny same sex marriage. HOWEVER, > > by passing DOMA the federal government has encroached on state powers by refusing to recognize state laws that permit same sex marriage. There is no rational basis with teeth for this. Strike down this part of DOMA. I can’t really see how you can argue that a state can have rational basis to recognize or not a marriage based on the orientation of the participants, but that the Feds can’t make the same distinction. And obviously marriage isn’t soly the preserve of state regulation, since if that were the case, DOMA would be meaningless. > [@](#): > > California voters removed a right previously granted by the state constitution (really the state Supreme Court, but whatever) They had no rational basis with teeth to do this other than animus towards same sex couples. For Romer v. Evans reasons, Prop 8 is unconstitutional. SSM is legal in CA. Oklahoma changed their constitution to ban SSM. Why would it be alright to do it there but not in CA. I can see good arguments for why SSM bans should be unconstitutional everywhere, and good arguments why such bans are constitutional. I’m not convinced by the intermediate arguments that some subset of bans are OK, but others aren’t. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [December 11, 2012, 9:30pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/97 "2012-12-11T21:30:03Z")
For some of the more conservative Justices, the real quandry will be protecting states by allowing gay marriage. I’m going to go out on a limb and say that Scalia will sacrafice the little picture (state-sanctioned gaydom) to preserve the big picture (state sovereignty) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 11, 2012, 9:30pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/98 "2012-12-11T21:30:33Z")
> [@Simplicio](#): > > I can’t really see how you can argue that a state can have rational basis to recognize or not a marriage based on the orientation of the participants, but that the Feds can’t make the same distinction. And obviously marriage isn’t soly the preserve of state regulation, since if that were the case, DOMA would be meaningless. Because of federalism. Since marriage is a state function, the feds must define marriage as the state in question defines marriage. And DOMA is not meaningless as it provides that other states, like Oklahoma, don’t have recognize SSMs. > [@Simplicio](#): > > Oklahoma changed their constitution to ban SSM. Why would it be alright to do it there but not in CA. > > I can see good arguments for why SSM bans should be unconstitutional everywhere, and good arguments why such bans are constitutional. I’m not convinced by the intermediate arguments that some subset of bans are OK, but others aren’t. For the Romer v. Evans reason: Same sex couples in Oklahoma never had a right to marry. Same sex couples in California had that right for a few months, but then had it stripped from them by the big, bad voters. Hey, I agree with you that the Court should usually rule broader on these things. But I’m sure they don’t want to add another chapter to the cultural war, so they will rule narrowly.. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [December 11, 2012, 9:48pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/99 "2012-12-11T21:48:16Z")
> [@Saint\_Cad](#): > > For some of the more conservative Justices, the real quandry will be protecting states by allowing gay marriage. I’m going to go out on a limb and say that Scalia will sacrafice the little picture (state-sanctioned gaydom) to preserve the big picture (state sovereignty) What kind of picture is growing marijuana for personal use? Scalia seemed to put that ahead of federalism, and while I’m not aware of any evidence he particularly dislikes pot-smokers, he seems to feel pretty strongly that homosexuality is immoral. I wouldn’t follow you out onto that limb. > [@jtgain](#): > > For the Romer v. Evans reason: Same sex couples in Oklahoma never had a right to marry. Same sex couples in California had that right for a few months, but then had it stripped from them by the big, bad voters. Romer v. Evans was followed within a few years by Lawerence v Texas, suggesting Kennedy felt sodomy bans were unconstitutional regardless of whether they’d been in place before or after the changes to the state constitution. And in that case the right that was being removed by the ban was one that stemmed from the federal constitution, not the state constitution. I don’t think there’s much of a precedent for the idea that states can deny you a right, but that they can’t deny it for a while, let you have it for a couple months and then take it away again. A right either exists and is protected by Due Process, or it doesn’t and isn’t. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 11, 2012, 10:06pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/100 "2012-12-11T22:06:06Z")
> [@Simplicio](#): > > I don’t think there’s much of a precedent for the idea that states can deny you a right, but that they can’t deny it for a while, let you have it for a couple months and then take it away again. A right either exists and is protected by Due Process, or it doesn’t and isn’t. That’s just it. Kennedy may hold (in this middle position) that SSM is not a federal constitutional right. Therefore Oklahoma can forbid it. However, where there was a right on a state level, like in California, the voters can’t simply remove it because of animus (Romer v. Evans). See the distinction? California said that its constitution provided a right of same sex couples to marry. Oklahoma never did and continues not to do so. Sodomy laws can easily be distinguished as they are laws against private sexual conduct whereas marriage is a public act recognized by the state. Again, though, I’m on your side. I think that Romer v. Evans was bullshit. Either you can or cannot prohibit X. These “rights for a few months, but snatched away” doctrine is in the mind of Anthony Kennedy, who will cast the deciding vote in this case… [Previous page](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363.md?page=4) [Next page](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363.md?page=6)