Yes, I agree that it is unconstitutional. I suppose this is a point in Esprix’s favor; since it has only slightly more of a chance of having any more pratical value than a law declaring all black men to be wards of the state, what’s left is the symbolic value. And here I have to agree with Esprix that, symbolically at least, this is a distinctly anti-gay bill.
But how many of our rights are given by the states rather than the federal government? And your phrase “every single state decision whatsoever” is hyperbole. How would a DoMA-like bill undo, for instance, a state’s decision to raise its income tax?
While might be able to challenge a heterosexual union under DoMA, I seriously doubt it would do so. DoMA doesn’t say that every marriage from another state is invalid, it just says that states can declare those marriages to be invalid.
I can see how it is a legal precedent for a federal law declaring this, but I don’t see how it is a legal precedent for this in and of itself.
Well. It creates second class citizens of the homosexual men and women. Let’s take an analogy, there is a law prohibiting inter-racial marriage. Sure, you can make the argument that it doesn’t discriminate against blacks or whites since it still allows them to marry. But, the black man who marries a black woman is still discriminated against, since if he changes his mind and wants to marry a white woman he cannot. The law is still racist. Likewise, DOMA is still anti-gay.
I realize that this post is off the oringinal question, but the repeated contention that DoMA is not discriminatory begs for a response as it is something that recently touched my life in a non-trivial way. Perhaps a personal example will help to explain how the DoMA discriminates against gay and lesbian people. My partner of three years recently had to have major thoractic surgery requiring an extended recovery and personal car. Because we can not legally marry, she is not able to be on my health insurance ( I work for a large company and she is in a training program). I also could not take my sick leave at my job to care for her. From a DoMA point of view, I could not use Federal Family Medical Leave, even if my home state did recognise our relationship, since although we are devoted to each other and much closer than any of our kin, we are not legally considered family. All of these things would have been possible and unquestioned if I remained married to a man as I was many years ago. We won’t even go into the many complicated legalities involved in the event of her death. Because I love a woman instead of a man, many everyday possibilities are suddenly unavailiable. Gay and lesbian people such as ourselves are willing to take fianical responsibility ( and generally do in many ways;joint checking accounts, powers of attorney, insurance policies (when availiable), fiancial support such as I provided to my partner) How can this be against society’s best interests?
I went to the national gay and lesbian press summit, and one of the panels that I attended was on outing. Historically, it was gay publications that did it… the heterosexual media pretty much took it and ran with it. One of the things I remember people covering was the “criteria for outing”. Most of the people on the panel (I’m trying to remember who they were- one was a writer for the Advocate, one was the head of GLAAD… afew others) agreed that the criteria for outing was “hypocricy.”
As in, if Trent Lott has a gay lover, the papers are going to call him on it. If a liberal, gay friendly politician has a gay lover, then it’s a non issue.
Which seems a little odd to me. I mean… if someone so badly wants to live their life a secret, they’re obviously not going to do the gay community any good service by having their “dirty little secret” be acknowledged.
One thing I kept on hearing, though, was how media’s portrayal of someone’s sexuality as ambiguous wasn’t doing anyone any favors.
No, they would be unavailable even you didn’t love her.
Just in case my position isn’t clear: I believe that gay marriage is good thing. However, I do not automatically believe that someone is a bad person just because he or she disagrees with me on this issue (I don’t mean to imply that you feel that way).
The Ryan: I agree that a lot of my point was hyperbole and reductio ad absurdam, but quite simply, I see this result:
Prior to DOMA, Congress had the delegated powers and the powers of the Federal budget with which to supersede the states on any issue. I.e., they would have to pass a law that at least five Supreme Court justices would see as in some way at least tangentially based in the powers Congress receives from the Constitutional grant, or they would do revenue sharing in such a way as to effectively mandate state passage of a law outside those powers they wanted passed. (E.g., of course you can keep the speed limit whatever you want, but we’re limiting Federal Highway Aid to states that have adopted a 55 MPH limit.)
If DOMA is held constitutional, it constitutes an almost limitless transfer of power from the states to the central government, since Congress is equipped by its precedent to determine what the effect of any state law will be in any arena outside the state’s own jurisdiction. This means that as an ethical lawyer, you must advise your client that any contract or deed he enters into may not rely on Delaware or Utah’s understanding of the law, but must defer to Congress’s, since at some point it may need to be enforced through courts not created by the state of origin, and their law is good only to the extent that Congress’s ability to interpret (or even negate) it for application elsewhere has not been applied. “Full faith and credit” becomes meaningless; it’s what Congress thinks ought to be the case nationally that matters.
I trust you can see the connection I am drawing now. Admittedly it is a bit extreme, but I cannot help recalling that the guy drafting the Income Tax Amendment is (apocryphally?) supposed to have admitted to friends that he had thought of putting a 10% cap in the law, but left it out since no Congress would ever take the income tax that high.
One final point, before somebody gets snide on the subject: You speak of the relative proportion of rights given by the states and by the Federal government [emphasis mine]. Almost everyone I have ever talked constitutional law with would be inclined to think that those rights are retained by the people and only guaranteed by Federal and/or state constitutions and laws. I suspect that was just a miswording, but I’ve seen people get into some Pitworthy snarls on something that minor around here, so I wanted to flag it first.
I don’t think that DoMA will eliminate full faith and credit. As for whether it will set a precedent for doing so, I will give you that. Now, are you going to argue that I souldn’t say that I “give you that” because you already had it? Of course not! When I say that the government has “given” a right, I mean that it has accepted it as a right, just as when I said “I give you that”, I mean that I accept your claim.