Ninth Circuit vs. First Circuit on Gay Marriage
With the Ninth Circuit's denial of a rehearing petition on Proposition 8, and the First Circuit's decision against the Defense of Marriage Act, the issue of gay marriage is headed to the Supreme Court. I'll be surprised if the Justices don't take it up.
The two circuits have left the law in worse confusion than before. The First Circuit opinion is a horrible jumble, as John Yoo pointed out here recently. Having read the decision a couple times, I think the court struck down DOMA on Equal Protection grounds, but it's hard to tell because the court says that the law fails to satisfy a "heightened" level of judicial scrutiny, even though it doesn't, strictly speaking, violate Equal Protection. Similarly, when it came to the 10th Amendment, the court held that DOMA didn't exactly violate federalism, but acknowledged that defining marriage is a traditional role of states. The court did give a nod to federalism, concluding that each state remains free to define marriage as it sees fit.
But each state will not be free to define marriage under the 9th Circuit's decision. According to the 9th Circuit, the only conceivable motivation for a state to define marriage as one-man-and-0ne-woman is hatred of gays, meaning that any state law upholding traditional marriage would be struck down under even the most lenient standard of review.
So what is it to be: the quasi-federalism and quasi-equal protection of the First Circuit, or the anti-democratic fervor of the Ninth? Let's hope the Supreme Court answers with a resounding "neither." And then let's hope they dust off the 10th Amendment, which would be (in my opinion), good news for Prop 8, bad news for DOMA.
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Dec '10
Re: Ninth Circuit vs. First Circuit on Gay Marriage
Adam,
Over 1,000 years ago Western Civilization's religious base decided on Marriage as one man one woman. In the 18th century when the Constitution was written Western Society was so steeped in this point of view that they were unconscious of the need to make a specific defense of it in the Constitution. Believe me Adam, if the Founders were alive today they would be adding a DOMA Clause.
Age may have something to do with it as I am about twice your age. My generation coined the addage "Be careful what you wish for you just might get it". Boy did we ever. We are still suffering from the cold souless grip of Roe v. Wade.
Now is not the time to abandon Western Civilization's Jewel in the Crown. That is what marrige betweeen one man and one woman is. To undercut this by asserting the moral equivalence of something so perverse as Gay Marriage is a disaster. We would be paying for such a disaster for decades. I hope the Court finds a way in Nancy Reagan's eloquent dictum to "Just Say NO!"
To be Continued,
Jim
Aug '10
Re: Ninth Circuit vs. First Circuit on Gay Marriage
Let me ask a practical yet utterly crass question here.
Federalism, state definitions, 50 laboratories of democracy, great. But I assume DOMA is there because the federal government needs one standardized definition for marriage. Unless there is some other aspect where the married vs single status matters, the key reason they need this is for calculating income taxes.
Under the general concept that you subsidize what you want more of, this implies the federal government wanted more heterosexual marriages. This makes sense generally, as a society needs children for self-perpetuation, and heterosexual marriages are the traditional and best source of them.
So: if we all decide that traditional marriage is just not cool enough, that marriage now means two (or more) people who just happen to love each other... does the government have any reason to subsidize it any more? What useful reason would the government have in encouraging more gay marriages?
DOMA goes away... but shouldn't the tax benefits gay marriage advocates have been chasing go away too?
Re: Ninth Circuit vs. First Circuit on Gay Marriage
James Gawron: Adam,
Over 1,000 years ago Western Civilization's religious base decided on Marriage as one man one woman. In the 18th century when the Constitution was written Western Society was so steeped in this point of view that they were unconscious of the need to make a specific defense of it in the Constitution. Believe me Adam, if the Founders were alive today they would be adding a DOMA Clause.
Jim · 1 hour ago
Jim, I support the traditional definition of marriage, but I believe it is up to the states -- just as I oppose abortion, but I believe it is a state issue. If the Court strikes down Roe (let us hope) it would not outlaw abortion, it would simply return the issue to the states.
It may be that the Founders would have inserted a DOMA clause, but I don't believe we can go by what the Founders might have done. We have to live with the words they gave us.
Re: Ninth Circuit vs. First Circuit on Gay Marriage
BlueAnt
So: if we all decide that traditional marriage is just not cool enough, that marriage now means two (or more) people who just happen to love each other... does the government haveanyreason to subsidize it any more? What useful reason would the government have in encouraging more gay marriages?
DOMA goes away... but shouldn't the tax benefits gay marriage advocates have been chasing go away too? · 27 minutes ago
I think you've hit on a key point - if it weren't for the federal government using tax-and-spending policies for social engineering, the marriage definition wouldn't be nearly the issue it is now. And yet - there are still legitimate reasons why the federal gov't must define marriage; e.g., veterans' benefits that are payable to a surviving "spouse."
Before DOMA the general practice was for the federal govt to look to the states. Thus, if you were legally "married" under state law, then you were "married" for purposes of federal law. I admit to some mixed feelings, but I think this is the way it should work.
Aug '10
Re: Ninth Circuit vs. First Circuit on Gay Marriage
I have a hard time believing this -- unless your generation is several thousand years old ;-)
Dec '10
Re: Ninth Circuit vs. First Circuit on Gay Marriage
Adam Freedman
James Gawron: Adam,
Over 1,000 years ago Western Civilization's religious base decided on Marriage as one man one woman. In the 18th century when the Constitution was written Western Society was so steeped in this point of view that they were unconscious of the need to make a specific defense of it in the Constitution. Believe me Adam, if the Founders were alive today they would be adding a DOMA Clause.
Jim · 1 hour ago
Jim, I support the traditional definition of marriage, but I believe it is up to the states -- just as I oppose abortion, but I believe it is a state issue. If the Court strikes down Roe (let us hope) it would not outlaw abortion, it would simply return the issue to the states.
It may be that the Founders would have inserted a DOMA clause, but I don't believe we can go by what the Founders might have done. We have to live with the words they gave us.
Adam,
I have received my homework assignment.
To be continued,
Regards,
Jim
Aug '10
Re: Ninth Circuit vs. First Circuit on Gay Marriage
Adam Freedman And yet - there are still legitimate reasons why the federal gov't must define marriage; e.g., veterans' benefits that are payable to a surviving "spouse."
Before DOMA the general practice was for the federal govt to look to the states. Thus, if you were legally "married" under state law, then you were "married" for purposes of federal law.
Right, I left out benefits for exactly this reason. There is/was already a framework in place for that--defer to state definitions. The only strictly federal function that seems to consider marriage at all is the federal income tax.
Other possible issues are inheritance law, power of attorney, etc. But I don't think these ever touch federal concerns in a manner disassociated from one's state of residence, so state law could rule here too. And even if it did, these are civil aspects that can easily be accomplished through contracts, affidavits, and other vanilla legal documents... no re-definition of marriage needed.
So again, if we redefine marriage away from the aim of the fed's social engineering policies, shouldn't those policies go away, thus defeating the purpose of federal level recognition?
Apr '12
Re: Ninth Circuit vs. First Circuit on Gay Marriage
But if the DOMA goes, does full faith and credit imply that we all have to accept, say, New York's same-sex marriages as real? Because then it seems like the states don't really get a say, practically speaking. It's no big deal for couples just to take a weekend trip to a state that has gay marriage; if that's all they have to do then the whole thing's basically over. And in practical terms, it doesn't seem to me like much of a win for Federalism if states are effectively forced into accepting gay marriages as legal whether they like it or not.