Dewey: First, an apology for my earlier hyperbole. It was not my intent to accuse you of that preacher’s attitude, but to use the strongest possible language to convey to you my impression of what your stance was being seen as by others, at least the vocal folks involved in this thread. (How do I know what a lurker is thinking?) It would be incorrect to say that “no offense was intended” – but it was by no means my intent to insult you as a person with strong jurisprudential convictions, but rather to figuratively hold up a mirror so that you could see what your words are being taken as.
Second, I agre with you that Kennedy’s language was a disclaimer – but I think we disagree as to what exactly it disclaimed. My reading of it is, “We the majority are explicitly making clear that this decision does not address the question of gayu marriages or civil unions; we will decide that at another time when a relevant case comes before us.” It sounds to me like your reading of it is, “We are stating that this case is not a precedent for claiming the legality of gay marital unions.” The former to me is a classic narrow-grounds decision – “We’re addressing sodomy laws here, not civil unions; argue that case separately.” The latter is an absolute denial of a claimed right which would be a dictum-style sidebar to the case in question, and I don’t think it is borne out by the language Kennedy used. In other words, the majority is saying, “Maybe this autonomy thing implies a right to gay marriage/civil unions, and maybe it doesn’t – but that’s not what we’re deciding right now. Bring that case another time, and then we’ll consider whether this is precedent for it.” It’s typical O’Connor language, and Kennedy in his narrow-grounds mode, and I’ll bet you dollars to donuts that if we could see into Kennedy’s mind, we’d find that he wrote it that way to try to get O’Connor to sign on.
I thought I did answer the question. The DOMA, insofar as it just says “no state has to respect civil unions created by another state” is just reflecting the current interpretation of the full faith and credit clause. It’s constitutional so long as the current interpretation of the FFC clause remains good law. But it’s also utterly irrelevant because it adds nothing that isn’t present in FFC clause jurisprudence already.
As for those components of the DOMA that relate to federal benefits conferred on married couples, it depends. The only real challenge to those provisions would be on equal protection grounds, and would only have to survive rational basis review. That’s a tough test to fail, so the act is likely mostly constitutional, but the analysis would have to take place on a benefit-by-benefit basis and thus a blanket “thumbs up/down” statement would be inaccurate. **
I did not argue against the constitutionality of federal laws that “relate to” marriage. I said the federal government lacked the constitutional authority to set the parameters for domestic arrangements, including marriage. There is a huge difference.
The federal government lacks the power to determine what is or is not a marriage, what is or is not a valid adoption, what is or is not a valid divorce, or what does or does not make a child legitimate. There is nothing in the constitution that grants the federal government that power, and per the 10th amendment, those powers are reserved to the states.
HOWEVER, the federal government can recognize such things in the exercise of its valid constitutional powers. For instance, the federal government unquestionably has the power to levy income taxes, per Article I, Sec. 8, clause 1 and the 16th amendment. In the course of levying such taxes, it can distinguish between married and unmarried taxpayers. It can also distinguish between homeowners and renters, between ordinary income and capital gains income, and (if it really wanted to, subject to rational basis analysis) tall and short taxpayers.
Understand?
(One caveat: the federal government has basically unlimited authority over the District of Columbia and federal territories and possessions, so it could define marriage for folks living in, say, Guam.) **
Yes. And he would have said, basically, that Texas is not constitutionally obligated to recognize Vermont’s definition of marriage. And he’d be right under current FFC jurisprudence. **
Read the facts in Olmstead; it deals with the disposition of property located in another state, which is precisely one of the concerns cited in defense of gay marriage.
(Also FTR: legitimacy is subject to heightened-scrutiny review in equal protection cases, but Olmstead is not an equal protection case; it is a FFC clause case. It does not deal with a state internally treating legitimate and illigitimate persons differently, but rather the question of whether another state must respect a state’s definition of legitimacy.) **
That tradition does not extend to recognizing marital arrangements which are radically different from those available in the target state. And you’re kidding yourself if you think such restrictions will fail rational basis scrutiny. **
Well, if that line is in there to address the “parade of horribles,” doesn’t that line indicate to some degree that the court views extension of constitutional protection to gay marriage in somewhat of a dim light? You’re contradicting yourself here. You’re claiming the court is saying, on the one hand, “Mr. Frist, this case won’t be used to protect the bad, bad things you’re opposed to, including gay marriage” while at the same time saying “the logic of this case might lead to constitutional protection for gay marriage.” Well, which is it? You can’t have it both ways.
I think that your interpretation is belied by the surrounding text. Or do you also think Kennedy was saying “Maybe this autonomy thing implies a right to prostitution, and maybe it doesn’t – but that’s not what we’re deciding right now. Bring that case another time, and then we’ll consider whether this is precedent for it”?