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Old 2013-03-29, 00:13   Link #27225
Vexx
Obey the Darkly Cute ...
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Join Date: Dec 2005
Location: On the whole, I'd rather be in Kyoto ...
Age: 66
Quote:
Originally Posted by SeijiSensei View Post
The Court will almost certainly punt the Proposition 8 case on the grounds that the appellants, who are some of the proponents of the original ballot measure banning same-sex marriage in California, have no "standing." They cannot show any direct harm from the striking down of the ban by the Appeals Court, so they have no grounds for appeal. The Court does not want to rule on whether same-sex marriage is per se constitutional, and the standing issue gives them a convenient escape route.

The DOMA case is a different matter entirely. Here I expect the Court to uphold the Court of Appeals ruling that overturned Section 3 of DOMA on Fourteenth Amendment ("equal-protection") grounds. Section 3 forbids the Federal government from recognizing the validity of same-sex marriages conducted in states where such marriages are legal like mine (Massachusetts). Until DOMA passed in 1996 the standard for defining "marriage" was whatever a state considered as legal. In order for the Federal Government to discriminate among persons, it has to meet some rather stringent tests to prove there are grounds for such discrimination. All four Democratic appointees, and Justice Kennedy, appear to believe DOMA does not pass those tests, and perhaps a couple more will sign on as well. I would not be surprised to see this part of DOMA struck down by as many as six or seven of the Justices.

However the other important section of the law, Section 2, still exempts states from having to recognize the validity of a same-sex marriage conducted legally in another state. This will lead to a horrible mess for some period of time where a couple living in Massachusetts will be eligible for Federal benefits and will be able to file taxes as a married couple if they remain in the state, but if they were to move to Florida, those benefits and privileges will disappear. At some point the Court will have to address the matter of the "full faith and credit" clause of the Constitution that requires states to treat each others' laws as valid. DOMA was passed exactly to avoid this problem when it started to look like Hawaii would legalize same-sex marriage. The fear among conservatives was that this decision would necessarily impose similar requirements on the other states under the "full faith and credit" clause.

The comments by Chief Justice Roberts during the opening arguments yesterday were surprising. He upbraided President Obama for continuing to enforce Section 3 even though he and his Justice Department believe it to be unconstitutional. It turns out there are various precedents for Presidents to ignore legislation that they think are unconstitutional, but they probably do not apply in this case (see item 5 in that link). Also I'm sure Roberts knows full well that if the President were to start paying Federal benefits to same-sex couples in advance of the Court's ruling, an impeachment bill would be moved in the House the next day.
That's the rulings I would believe would happen if the Court were doing due diligence. Given their rulings on corporate issues over the last 10 years, my confidence is kind of tarred in cynicism lately.
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