A victory, fortunately, as expected. I was surprised/disappointed to see Kennedy alone joining with the liberal bloc. Roberts, Alito, Thomas and, volcanically, Scalia, all in dissent. They seem to think federalism, a conservative principle, is situationally based on which side of the political spectrum an issue falls. Of course, liberals also shift around on federalism, and many have made the non-federalist argument that constitutional liberty should trump state law; but that’s not what the conservative federalists believe, when it suits their purposes.
What federal rights, benefits and protections couples residing in states that do not recognize their marriages will have remains to be worked out, and it will be messy.
More. From our comments:
Scalia rages about overturning ‘democratically legislated laws’ and yet he just overturned the Voting Rights Act yesterday.
And:
Last night I watched MSNBC. It was nothing but outrage that the Supreme Court overturned a “democratically legislated law,” renewed just in 2006. Do you think they will be as much outraged today, after another “democratically legislated law” and the voice of the citizens of California expressed directly through a referendum just in 2008 were overturned by the Supreme Court?
As with federalism, on the primacy of majoritarianism over constitutional principles there is hypocrisy all round.
Furthermore. As the author of the majority decisions in Romer, Lawrence and now Windsor, Reagan-appointee Anthony Kennedy earns a key spot in American and gay history.
And worth noting:
For nationwide same-sex marriage, the road to victory runs through the GOP
44 Comments for “Post-DOMA”
posted by Mike in Houston on
From a federal standpoint, it may be less messy than anyone thinks… all the Obama administration has to do is to issue instructions that the standard to recieve federal benefits recognition is that couples who are legally married WHERE CELEBRATED are married in the eyes of the federal government.
Expect to see a wave of same-sex couples flocking to marriage equality states to get legally hitched after that.
Then the next wave of litigation will likely rise & fall on whether or not the remaining sections of DOMA run afoul of the Full Faith & Credit Clause of the Constitution and/or the 14th amendment… which would provide de facto if not de jure marriage equality even in states that do not recognize our marriages.
posted by Doug on
It’s going to be messy all around. Consider this. Supposed you were married in MA 8 years ago and could not file a joint tax return. Now that the law has been ruled unconstitutional what about filing amended tax returns for 8 years, is that OK.
There are going to be many many messy things to work out.
posted by Tom Scharbach on
From a federal standpoint, it may be less messy than anyone thinks… all the Obama administration has to do is to issue instructions that the standard to recieve federal benefits recognition is that couples who are legally married WHERE CELEBRATED are married in the eyes of the federal government.
It isn’t quite that simple.
A case in point: IRS regulations require that a couple file with the same status, both state and federal. Many (I think all) states have a reciprocal requirement.
So a couple married in Minnesota moves to, say, Texas. How does the post-DOMA tax situation work out in that scenario?
I can think of lots and lots of examples that won’t be resolved as easily as you think. We went over this in an earlier thread, and I won’t rehash it, but it is going to be messy.
In terms of spurring a Loving-equivalent decision sooner rather than later, messiness is a good thing.
posted by Houndentenor on
Good argument, but pick a different state for your hypothetical argument. Texas, Florida, NH and maybe a few other states have no state income tax. There will be problems for such a couple in Texas, but state income tax will not be one of them.
posted by Tom Scharbach on
Okay, Minnesota and Wisconsin, then. Thanks, Houndentenor.
The tax return issue isn’t hypothetical, by the way. Until today, cautious tax lawyers advised married same-sex couples to prepare returns both as married and as single at both state and federal levels, file both returns at each level with an explanatory letter, and pay the higher of the two taxes extracted in both cases.
posted by Houndentenor on
It’s definitely an issue for many couples. I just wanted to make sure your hypothetical was appropriate to your question.
posted by Don on
“It’s will be messy.”
Luckily, I brought my bib.
posted by Doug on
Scalia rages about overturning ‘democratically legislated laws’ and yet he just overturned the Voting Rights Act yesterday. Scalia has no shame, no integrity, no logic. . . just hatred in his heart. This man is an embarrassment to the Court and to the Nation.
posted by AG on
Last night I watched MSNBC. It was nothing but outrage that the Supreme Court overturned a “democratically legislated law,” renewed just in 2006. Do you think they will be as much outraged today, after another “democratically legislated law” and the voice of the citizens of California expressed directly through a referendum just in 2008 were overturned by the Supreme Court? So, what about no integrity, no logic, etc.? Does it only apply to people you disagree with? And if you think that these two issues are different, I can assure you that Scalia does not see any contradiction in his opinions either.
posted by Houndentenor on
VRA exists to ensure that no one’s voting rights are denied. It addresses specific problems in areas with a history of denying rights explicitly granted by the constitution. So yeah, I’m outraged that the conservative justices obviously voted to allow vote suppression using the smokescreen of a Congressional remedy knowing full well that Boehner is not going to allow any remedy to come to the floor for a vote before the 2014 election. Slippery and disgusting but clever, I must admit.
posted by Doug on
It makes no difference what I or anyone else thinks about either law. The point is that Scalia has violated his own principles. It was Scalia’s screed about overturning ‘democratically legislated laws’ which he himself just did. He’s the one that voted on both cases, not me or anyone else.
posted by Houndentenor on
States rights is BS. Sorry but both left and right use that argument and ignore it depending on the issue before them. My apologies to the small number of libertarians who are actual consistent about such matters. Not one of them is on the SCOTUS.
posted by JohnInCA on
Or holding an elected position in federal politics.
posted by Mike in Houston on
Defense Secretary Hagel just announced that his department would move to quickly provide full and equal benefits to same-sex military families…
http://www.defense.gov/releases/release.aspx?releaseid=16119
It may be that some of the mopping up operations will be messy, but I’m hopeful.
posted by Tom Scharbach on
I was surprised/disappointed to see Kennedy alone joining with the liberal bloc.
I am still digesting both opinions, and thinking through the implications for the path forward, but I suspect that the reason that the decision was 5-4 rather than 6-3 or perhaps 7-2, is that the decision was a broad decision grounded in equal protection, rather than a narrow “reserved powers” decision. Chief Justice Roberts and perhaps Justice Alito might have gone along with a “reserved powers” rationale.
Windsor is vintage Kennedy — the language builds on Lawrence and Roper — and has reasoning that future cases can stand upon to bring the whole ugly house of cards down. It is an important win for the future, much more important than a decision based on reserved powers.
To see what I’m thinking about, just sit back and absorb this language from the decision, thinking about a Loving-equivalent case that will be coming to the Court in 4-6 years, adapting the language in your head from DOMA to the anti-marriage amendments, and from the federal government to the state governments:
And then, contrast that reasoning to the questions from Chief Justice Roberts and Justice Alito during the orals on the Windsor case and the Prop 8 case. If you do that, the reason why the decision was 5-4 becomes obvious.
The good news is that Windsor provides the language and logic that lower federal courts will need to start deciding cases in favor of marriage equality, creating a path to a Loving-equivalent decision from the Court.
The bad news is twofold: (a) the Chief Justice signaled that he will not be with the majority in a Loving-equivalent decision, and (b) if either Justice Kennedy or Justice Ginsberg leave the Court and are replaced by a Scalia/Roberts/Alito clone, we’ll lose when the Loving-equivalent case is decided.
“volcanically, Scalia, in dissent”
Scalia has reason to be volcanic. He’s been tossed into the shit can of legal history, and he knows it.
His dissent in Lawrence predicted the result in this case, and in the Loving-equivalent case to come.
The only hope Scalia has for the future is that President Obama or the next President will replace Kennedy or Ginsburg with a Scalia-clone. You can bet that President Obama won’t, and with any luck, the next President won’t, either, at least so long as Democrats and rational Republicans hold a majority in the Senate.
posted by Tom Scharbach on
Technical note: “Flowers-equivalent” should read “Loving-equivalent”. I was talking on the phone with a friend named “Flowers” while I was typing, and my synapses crossed. An old brain farting.
(fixed in previous post–IGF editor)
posted by Tom Scharbach on
Substantive Note: I want to note for the record that I wrote this comment before digesting the opinions in full, particularly Justice Scalia’s dissent. Justice Scalia did the textual analysis I suggested to you (using the same passages from the majority opinion) in his dissent (pages 23-24), and reached the same conclusion. Let’s hope that we are both right.
I want to make sure that I don’t claim credit for reaching a conclusion that is plain as a goat’s butt in Justice Scalia’s dissent.
It is that sort of mistake that comes of too-quick reading and analysis, and I wish I’d waited to comment until I’d read the dissent carefully and digested it. I’d simply have quoted Justice Scalia’s analysis in that case.
posted by Jorge on
Scalia has reason to be volcanic. He’s been tossed into the shit can of legal history, and he knows it.
Oh, please. Most of the Justices get like that now and then when they’re in dissent, and then they (Scalia included) go on to write landmark majority opinions.
posted by Tom Scharbach on
Oh, for God’s sake, Jorge.
Scalia’s dissent in DOMA is not a case of “now and then”. Read his dissent in Lawrence again, and read his DOMA dissent in light of his Lawrence dissent. What we have is a history, not a tantrum.
Scalia rehashes the disproven arguments of the religious conservatives, and then wallows in maudlin self-pity (“It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.“). Enemies of the human race? Seriously?
On this issue, he’s tossed himself on the shit can of legal history. He is not going to “go on to write [a] landmark majority opinion” on “equal means equal”. In fact, his DOMA dissent, read objectively, is proof that he knows it.
posted by Jorge on
Read his dissent in Lawrence again, and read his DOMA dissent in light of his Lawrence dissent.
I’ve read his Lawrence dissent. And I’ve read many others. We’ve broken the Constitution, wails Kennedy in the very next case. We’ve gone bizarre on standing, huffs Alito in this DOMA case. We’ve broken the Constitution, wails Ginsburg in the affirmative action and voting rights cases. The Constitution is beyond broken, laments Thomas.
Compared to his Lawrence dissent, almost every word Scalia wrote in this case rings true (I agree more with Alito on the standing question). The Supreme Court has no business taking a considered act of Congress and tarring it or its proponents with the label of bigotry–which is very close to what it does, the only reason I won’t say this outright is because at the time DOMA was passed Supreme Court precedent suggested that “moral disapproval” was a valid basis for laws restricting gay rights–when there were numerous valid reasons for it. In that respect, I object very strongly to the Court’s opinion. Saying the states have the power to confer an equal dignity that should not be infringed by the federal government, that’s fine as far as it goes. But the willful obfuscation and slander of motive, that I will hold people accountable for.
posted by Houndentenor on
Sorry, Jorge. Perhaps you are not old enough to remember the debate over DOMA, such as it was. It was nothing but animus. There are plenty of documents surrounding that law and it’s one big steaming pile of homophobia. Yes, it was anti-gay bias. The court would have struck down any law that was based on nothing but unfounded prejudiced towards a class of citizens. I don’t know why this one shouldn’t have been any different. Gay people are now fully covered by the Equal Protection clause. That is grounds for celebration. Scalia, once again, shows that he is an unrepentant bigot. Perhaps one has to be Roman Catholic not to notice the animus in Scalia’s rantings. I find them repugnant and would if it were directed at any group, not just mine. He’s unfit to be a judge in traffic court much less the highest court in the land.
posted by Houndentenor on
http://www.theatlantic.com/politics/archive/2013/03/the-jaw-dropping-reason-congress-drafted-doma-moral-disapproval-of-homosexuality/274418/
posted by Jorge on
Sorry, Jorge. Perhaps you are not old enough to remember the debate over DOMA, such as it was.
Barely. Only well enough to connect it in a historical sense to the Federal Marriage Amendment as supported by President Bush.
And you know what I think of President Bush.
Scalia, once again, shows that he is an unrepentant bigot. Perhaps one has to be Roman Catholic not to notice the animus in Scalia’s rantings.
I thought Scalia was Jewish.
I think you need to read the decisions again. Scalia’s dissent in Lawrence gave him a strong reputation of being actively hostile to gays.
I can’t understand anyone getting that impression from his dissent in this case. I mean intellectually I get that a lot of people are intelletually shallow enough to imagine that anyone who expresses strong disagreement with them must be-anti-gay, but I think the two dissents are different in content. If I’m wrong in my memory, then it might be helpful for you not to point it out.
posted by Tom Scharbach on
I thought Scalia was Jewish.
Moshe weeps.
posted by Houndentenor on
Oy gevalt! You actually thought someone named Antonin Scalia was Jewish? I think you’re pulling my leg.
Yes, I read his dissent in Lawrence. It was repugnant and completely based on anti-gay bigotry. The only thing he got right was that the Lawrence decision would eventually lead to recognition of gay marriage.
posted by Houndentenor on
FYI. The only non-Catholics on the current Supreme Court and Kagan and Ginsberg. Only three law schools are represented: Harvard (5), Yale (3) and Columbia (1).
posted by Tom Scharbach on
The only non-Catholics on the current Supreme Court and Kagan and Ginsberg.
Justice Breyer is Jewish, not Roman Catholic, as are Justices Kagan and Ginsberg. Chief Justice Roberts, Justices Scalia, Kennedy, Thomas, Alito and Sotomayor are Roman Catholic.
As an aside, a number of Catholic Bishops in the United States have taken the position that Catholics who support marriage equality should self-excommunicate. Should Justices Kennedy and Sotomayer do so at this point?
posted by Houndentenor on
Scalia is an unrepentant bigot. Alito and Thomas less so but enough so that no one I know expected them to vote to overturn DOMA. Roberts is a wild card but doesn’t seem to like to overturn what the legislative branch has done, so that wasn’t that big a surprise. Kennedy was our only hope which is why Olson and Boies tailored their arguments specifically for his benefit. It worked. 5-4. I’ll take it.
posted by Tom Scharbach on
This is what today’s decision means in the concrete — a marriage not broken asunder by legal discrimination by the federal government.
posted by Stuart on
It’s interesting that Mike Huckabee tweeted “Jesus wept.” This verse refers to Jesus weeping over the man who, in an earlier verse, is referred to as “he whom you (Jesus) love.” The following verse says, “See how he loved him (Lazarus).” Jesus’ weeping over Lazarus is one of the Bible’s many moving passages about the depth of same-sex love. Is Huckabee secretly an ally?!?
posted by Tom Scharbach on
Jesus’ weeping over Lazarus is one of the Bible’s many moving passages about the depth of same-sex love. Is Huckabee secretly an ally?!?
I doubt it. Huckabee’s tweet is a good example of “proof-texting”, the practice of quoting scripture out of context to make or substantiate a personal point.
Fundamentalists do this all the time, stringing unrelated and inapt verses together into whole cloth. The practice of ignoring scriptural context is one of the reasons that it is next to impossible to engage fundamentalists in meaningful theological discussion.
posted by Fritz Keppler on
Reminds me of this concatenation of scripture.
1. Judas hanged himself (Matthew 27:5).
2. “Go and do likewise” (Luke 10:37).
3. “That thou doest, do quickly” (John 13:27).
posted by Houndentenor on
I’ve known Huckabee for decades. No, he’s not an ally, secret or otherwise.
posted by Stuart on
Rather than dwell on the verses which seem to condemn homosexuality, it would be nice if Bible scholars like Huckabee would look at all the positive images of same-sex relationships in Scripture–Ruth and Naomi, David and Jonathan, Ashpenaz and Daniel, the Centurion and his beloved pais, Jesus and Lazarus, Paul and Philemon, etc. No one is claiming that any of these couples were having sex–no one is claiming that homosexuality is simply a sex act, either. It’s interesting to note that the only times when two people in Scripture declare their love for each other, it’s two people of the same sex. Not kidding. Look it up. Even Song of Solomon has ambiguous pronouns. 🙂
posted by HeyWTF on
While I get your point, I would note that there are meaningful differences in each instance. VRA flows from Congress’ power explicitly vested in the Constitution. Marriage doesn’t. Likewise, Equal Protection is a Constitutional command, while State’s “Equal Sovereignty” isn’t. (“Spirits of the Constitution” is, of course, laughably amorphous and malleable concept)
posted by Jorge on
I was surprised/disappointed to see Kennedy alone joining with the liberal bloc. Roberts, Alito, Thomas and, volcanically, Scalia, all in dissent.
Hah! The dissent fractured. The majority muddled.
posted by Tom Scharbach on
“As the author of the majority decisions in Romer, Lawrence and now Windsor, Reagan-appointee Anthony Kennedy earns a key spot in American and gay history.”
Yes, he does, and he deserves it. But don’t crow too much, Stephen. Every other Republican-appointed Justice, most particularly the two most recent appointments (Roberts and Alito), voted against “equal means equal” in Windsor.
The days when Republicans appointed moderate Justices who voted with us (John Paul Stephens, appointed by Jerry Ford, Sandra Day O’Connor, appointed by Ronald Reagan, David Souter, appointed by George H.W. Bush) died with the “litmus test”. I hope that will change, but meanwhile, we have to live with the fact that Roberts, Scalia, Thomas and Alito are roadblocks and likely to remain so.
“And worth noting: Rand Paul: On Gay Marriage GOP Needs to ‘Agree to Disagree’”
Rand Paul is a two-faced turd. How that guy gained a devoted following is beyond me.
posted by Tom Scharbach on
Rand has apparently started to walk back yesterday’s nonsense about human-animal marriage. Every step toward rationality is a step in the right direction for him.
posted by Houndentenor on
Just so you know, Kentucky, Paul’s home state, has no law against bestiality. Most states don’t.
posted by Tom Scharbach on
Just so you know, Kentucky, Paul’s home state, has no law against bestiality. Most states don’t.
No point in turning half the farm boys in the state into sex offenders.
posted by jared on
Everything in the partisan media is a partisan distortion. I certainly don’t buy what MSNBC and New York Magazine are peddling — everything is distorted and every opponent demonized to serve the narrative.
Here’s a different view on Paul’s comments.
posted by Tom Scharbach on
I’ll accept that Rand Paul was just being a sarcastic jerk. He certainly comes across that way on other issues, and he can’t be so ignorant to actually believe that man-dog marriage is coming down the pike.
But when the idea that Rand was being a sarcastic jerk is the best defense you can come up with, its pretty weak.
You going to vote for this guy?
posted by Houndentenor on
ROFLOL
I understand that you find admittedly liberal news sources to be…liberal, but Tommy LaSaliva is hardly an unbiased source. He’s never met a right-winger who he wouldn’t blow no matter how anti-gay they are.
posted by Tom Scharbach on
The ACLU, Center for American Progress, Family Equality Council, Freedom to Marry, GLAD, HRC, Immigration Equality, Lambda Legal, National Center for Lesbian Rights, NGLTF, and OutServe-SLDN have put together a set of fact sheets on federal benefits post-DOMA, for those interested. The usual lawyers’ caveat: Don’t try this at home, at least until the ground is more settled. Get a lawyer.