Federal Court Says DOMA Unconstitutional: Analysis of the Ruling

GolinskiThis decision came from dueling motions to dismiss and motions for summary judgment. House Republicans want to dismiss the case, arguing that DOMA is constitutional and Ms. Golinski has no right to add her wife to her health plan. Standing against the House are Ms. Golinski — through her incomparably excellent attorneys at Lambda Legal, Tara Borelli and Susan Simmer, and their co-counsel at the firm Morrison Foerster LLP — and the Obama Administration, both of whom want summary judgment in Ms. Golinski's favor. Asking for summary judgment is like asking a referee to declare Adele the winner in a singing competition between her and a mute: a party wins summary judgment when there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Or, in other words, given the governing law and undisputed facts, there is no possible way that a trial could come out any differently than if summary judgment were granted right now.

Take a moment to consider what victory at the summary judgment stage means. In Perry v. Brown, Ted Olson, David Boies, and their AFER colleagues took us through a detailed trial, introducing evidence about gay parents, the harms of denying marriage recognition, and the animus toward gay people inherent in Proposition 8. Here, Ms. Borelli and Ms. Simmer and Morrison Foerster submitted briefing and evidence and the court found their (and the Obama Administration's) positions so compelling that Judge White did not even need a trial to declare DOMA unconstitutional. Of course, the high summary judgment threshold makes it easier to reverse on appeal: all an appellate court need find is evidence of a disputed material fact. But, given the decision, and the growing consensus in the federal courts on the unconstitutionality of DOMA Section 3, that is unlikely.

What is the appropriate standard of review?

For the standard of review to even be an issue, Judge White had to distinguish a 1990 Ninth Circuit case, High Tech Gays v. Defense Industrial Security Clearance Office, which stated that gays are not a suspect or quasi-suspect class that merit heightened scrutiny. The court reminded us why pre-Romer and pre-Lawrence law in this area is simply no longer good law. High Tech Gays expressly relied on the fact that Bowers v. Hardwick (1986) allowed for the criminalization of homosexual conduct; that is, if sodomy could be criminalized for gays, but not for everyone else, then gays could not possibly be members of a protected class. But, Bowers was long ago overturned by Lawrence v. Texas (2003), which not only erased the artificial distinction between gay "conduct" and gay "identity," but also declared that gays enjoy the liberty to intimate association like anyone else (Golinski, slip op., at 15-16).

So, if High Tech Gays did not control, the court needed to define the appropriate standard of review. Judge White took us through the four factors used to justify heightened scrutiny — a history of discrimination, whether the group's distinguishing characteristic affects members' ability to contribute to society, immutability of the distinguishing characteristic, and political powerlessness of the victimized group — but noted that the first two have long been considered the most important (14).

There has indeed been historic discrimination against gays and being gay has no bearing on our ability to contribute to society (19), and while House Republicans offered some evidence suggesting that "a very small minority of the gay and lesbian population may experience a small amount of choice in their sexuality" (notably, that evidence included reference to 'ex-gays'), Judge White was rightfully persuaded by the "vast majority" of evidence that shows that gays never experience a change in sexual attraction.

And, regardless, Ninth Circuit precedent had already concluded that sexual orientation was an immutable characteristic (20). House Republicans also offered evidence that gays are not "politically powerless," by pointing out President Obama's recent appointment of openly gay judges to the federal bench, the President's refusal to defend DOMA, and "a recent spate of news stories" about pro-gay developments. But, Judge White saw through this canard. Four openly gay judges is a drop in the ocean; after all, gay people are discriminated against in the 30 states that have constitutional amendments banning marriage recognition, there is (as yet) no federal anti-discrimination legislation and only a few at the state and local level, and so on (21-23). Progress in the fight against discrimination is no evidence of power, whatever Justice Scalia might state in his dissents.

Given heightened scrutiny, the animus expressed toward gay people during the DOMA debate — gays were "immoral," "depraved," and "unnatural" — could not justify DOMA's discrimination. Nor could any of Congress's proffered objectives:

DOMA does not encourage responsible procreation and child rearing: Judge White rejected House Republican criticisms of the studies that showed gay people are great parents and noted that it is undisputed that several studies show how responsible gay parents are (28). Besides, the court noted, even if Congress wanted to encourage responsible procreation in opposite sex households, DOMA did not — and could not — encourage straight people to have more kids within marriage. Denying federal recognition of people who are already married just burdens the married couple.

DOMA does not nurture traditional marriage. A law that does not change state marriage laws could not benefit traditional marriage: DOMA cannot encourage already married gay people to marry people of the opposite sex (29-30).

If DOMA defends traditional morality, that justification is insufficient. Perhaps DOMA defends conservatives' views of traditional morality, but Romer and Lawrence clearly stated that moral disapproval cannot justify discrimination against an unpopular group.

DOMA also failed rational basis review in Judge White's alternative holding, which relies on the long-held view that discrimination against unpopular groups requires a "more searching" form of rational basis. Even under this lower standard, DOMA failed.

DOMA does not maintain the status quo. A long history of discriminating against gays is no reason to continue that tradition. Plus, DOMA actually changed federal marriage law by injecting a federal definition of marriage for the very first time (38-39).

DOMA cannot be justified by a desire to remain "cautious" in a hot social issue. Just because some given social issue is a hot topic of debate does not make continued discrimination palatable. Nor does it absolve the federal courts of their responsibility to weed out invidious discrimination (41).

Implications

If, then, under any standard, DOMA is unconstitutional, Golinski has powerful impact. First, while it cited Gill v. OPM and other DOMA cases, Golinski is the first to explicitly state that unequal state treatment on the basis of sexual orientation requires heightened scrutiny. For that, we have to thank the Obama Administration throwing its considerable influence behind the heightened scrutiny concept.

If affirmed by the Ninth Circuit (if this case is appealed, as I assume it will be), we will have federal appellate court precedent for a heightened standard of review that would call into question a whole host of antigay, discriminatory laws.

Second, even in Judge White's alternative rational basis holding, he made clear that discrimination that burdens a traditionally unpopular group requires more than the very low low rational basis standard that federal courts give to economic legislation. This is a direct attack on the legitimacy of Judge Randy Smith's dissent in Perry v. Brown, where the judge stated that only "rational speculation" on evidence of dubious accuracy is enough for rationality, though I cannot speculate as to whether Judge White intended as much.

Judge Smith's main point was that the citizens of California could have rationally believed that straight parents are better parents and that banning gay marriage encourages the "best" parenting model even if they were basing that good faith belief on admittedly incorrect or outdated or rejected science. Judge White not only rejected that absurdly low standard of review as outdated (no longer operative in a post-Romer and post-Lawrence world), but also irrelevant since all parties concede that gay parents are great parents.

Third, and related, Golinski is a stark reminder to conservatives in the House and traditionalists everywhere that their particular conception of morality cannot justify discrimination against gays as a matter of law.

And, finally, Judge White's reliance on other DOMA cases and previous Ninth Circuit precedent accepting the immutability of one's sexual orientation shows the importance of gay rights impact litigation in the medium to long run. A case here and there may result in a small victory in the result, but every step toward recognizing the essential equality of gay persons has an impact on future cases. Without previous cases in the Ninth Circuit and without Judge Joseph Tauro's decisions in Gill and Massachusetts, the Golinski decision would be just as correct, but on shakier ground as it goes up on appeal.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

Comments

  1. Bingo says

    There’s a nice passage where White is reviewing some of the BLAG’s “evidence” that different-sex parenting is superior to same-sex parenting. One of BLAG’s sources was an article is Slate. White writes: “This is a three-page, non-scientific article by an author with no professional expertise in child development, published by a popular
    online magazine without peer review.”

    SNAP!

  2. Johnson says

    When will we finally see an end to the odious enforcement of DOMA by the federal government? When will bi-national married couples be able to stop cowering in fear of their legal marriages being torn asunder and seeing their legal spouses deported? When will married citizens of the several states be able to file joint tax returns?
    When will DOMA, in practicality, be dead?

    I am asking WHEN?

  3. Michael Bedwell says

    Good Old Ari, our dependable propagandist for Obama, Inc. Why do I say that? Because any OBJECTIVE “legal analysis” would not choose to leave out two years of previous history of this case when a CIRCUIT Court judge ruled that DOMA does NOT even apply in this case and ordered Obama, Inc., to let her add her wife to her insurance but for those two year Obama, Inc., DEFIED the judge until they suddenly decided last year they were now for something they’d fought against before. . Did anything about DOMA change during that time? No. Did anything about the Constitution change during that time? No. Applause, applause for finally buying in, but it’s fair to ask what political homophobia was behind their taking so long to do the right thing until apparently secret polling told them it was okay. Remember these FACTS when being drowned in Kool Aid from Ari or anyone else. [And, NO, this doesn’t mean we should support a Repug for president instead.]

  4. Zlick says

    It was striking to me how this court did not stop at rational basis review, when it could have (noting, in detail, why DOMA sec. 3 does not pass muster at even that standard), but goes on to find gays and lesbians entitled to a standard of heightened scrutiny, which it then states in detail why DOMA sec. 3 fails under that standard as well.

    Ari, why do you think such a different tack was taken by Judge White than that taken by the Ninth Circuit panel recently in Perry (and, seemingly, by most courts in not reaching beyond the standard necessary to resolve the issue before them).

    I’m so heartened by the application of heightened scrutiny here – but did Judge White err, or go beyond typical standards of jurisprudence, in applying heightened scrutiny when he has determined the matter fails at even the rational basis standard?

  5. Keith says

    Thanks Ari for this analysis. . .a very interesting read and impressive ruling. One statement and question (perhaps naive, on my part, but one I’ve pondered lately). Many of the latest victories for the LGBT community have come from the Ninth Circuit, but not from other circuits in the Midwest and Deep South. What is the implication in such rulings if only the Ninth Circuit and perhaps one other Circuit rule in such matters? Do they influence other, more hostile, Circuits, or could a patchwork ultimately work against us as courts seek resolution at the ultimate level of the US Supreme Court? Just curious what you think about this train of thought.

  6. says

    Great news! Thanks to DOMA legally married same-sex military spouses are denied health insurance, commissary and other base privileges, housing allowance, etc. as compared with their opposite-sex married counterparts. For those interested – http://OUTmilitary.com has been providing a supportive environment for friending, sharing and networking between Gay active military, vets and supporters since December, 2010.

  7. says

    @keith: thanks for reading! i wouldnt characterize gay rights victories coming out of the 9th circuit, dont forget Gill came from the 1st. also, over the years, we have had great victories from all over (and great losses from all over). it does suggest that the coasts are farther along in tolerance and acceptance than the south, but we already knew that. plus, there are a number of cases making their way through the federal courts in the 7th (midwest/plains) and even the conservative 4th.

  8. says

    @keith: also, dont forget that many of these pro gay decisions come from republican appointees. that has much to do with the make up of the federal courts over the last 30 years (20 of the years since 1980 have been republican presidents).

  9. Matt N says

    Question for Ari:

    It looks like this ruling only applies to the plaintiff. Do you think the 9th circuit would likewise limit it, or would a favorable ruling from them apply it to all couples in the 9th circuit who are legally married under their state law?

  10. says

    @mattn: in the sense only that golinski is an as applied challenge to DOMA from golinski, it applies to her. that only means that its not a facial challenge, like the challenge to DADT from log cabin. still, the reasoning applies to any challenge to DOMA. it just matters for how the case functions.

  11. BobN says

    Ari, correct me please if I’m wrong: This is the first case defended by Clement, right? His office prepared the papers and the made the arguments (though there were no oral arguments, witnesses, etc.), right?

  12. says

    Love this. Thanks Ari!

    I recommend everyone go read the actual ruling! It’s quite fun! He just smacks down the opposition and even gets in a shout-out to peer reviewed articles by scholars, as opposed to, say blog posts by non-scholars, like the opposition loves to cite!

  13. BobN says

    “@bobn: with a decision, yes. but mr. clement and bancroft llp have submitted motions/briefing in other case.”

    So no motions/briefing in this case?

    Me confused.

  14. bravo says

    Reading an Ari assessment gives me a semi.
    He is one of the best writers on LGBT federal law out there. I said it before and I’ll say it again: Ari is the lovechild of Dalia Lithwick and Nina Totenberg with Linda Greenhouse as the sperm donor.

  15. BobN says

    Thanks, Ari, that’s what I thought. I assume his arguments in the other cases were similar (if not identical) so far.

    Sad thing is, he’ll probably get another big check to fund the appeal.

  16. Zlick says

    To answer my own question, I guess that district court judges are perfectly free to rule on the basis of multiple standards; it’s appellate courts that typically rule only on the narrowest available.

    I don’t recall whether Judge Walker went beyond rational basis in the Perry case. But it’s wonderful that Judge Smith not only went there, but said gays and lesbians qualify under all 4 prongs of the heightened scrutiny test, not just the two that have been found most important. I believe that’s called a Slam Dunk. Yay!

  17. says

    @zlick: no, he did not violate the rule that federal judges must only decide the issue before them. the standard of review WAS an issue before the court because lambda legal and DOJ said heightened and House Republicans said rational basis. the decision on heightened scrutiny was taken here (and not in perry) because that particular issue had to be resolved here. it did not in perry… it wasnt even fully briefed in perry.

  18. Kris says

    I don’t see why gays oppose polyamory – that is, multiple partner marriage.

    Polyamory is a natural sexual orientation just like being gay. Polyamorist families love each other and want the same right to marry as do gays and straights. How do polyamorist marriages hurt YOUR gay marriage? They don’t. Why are gays so prejudiced against loving polyamorist families? After all, there is no more abuse in such families than in any other sort of families. Any group of two or more people who want to marry should be able to, Ari, don’t you think? I also don’t understand why gays are against bisexual marriage – a person who can marry one of each gender. I think gays are prejudiced against bisexual marriage.

  19. Johnson says

    Kris,

    First of all, we’re not gays, we’re gay people. Polyamory is not a sexual orientation. The sexual orientations are heterosexual, homosexual, and bisexual. That’s it, there are only three. It sounds like your trying to confuse the issue with so many basic facts wrong. If polygamists want marriage rights, they can fight for them like we had to fight for them. But, it’s not OUR fight. I don’t see anyone clamoring for polygamy or polyandry, no national groups asking for it. If there are millions upon millions of disaffected polygamists out there, then they are entirely silent on the matter.

  20. StraightGrandmother says

    Thank you Ari!! You da best!! I really like it that you read the comments and will answer most of our questions. You are my Fav. I don’t have many questions since the ruling is very straightforward. Golinski is lik Witt vs the Air Force that case was DADT as it applied to Witt. Golinski vs OPM is as DOMA is applied to Golinski :)

  21. Shelly says

    Strongly suspect Kris is a troll — that’s a tired amalgam of “slippery slope” propaganda mashed together with the flatly wrong assumption that most of us care one way or another what the poly folks do.

  22. anony6 says

    YES! Another victory for justice. This past month or so has been incredible for gay rights. Sometimes it can seem so rare and slow…that is…progress on civil rights. I really feel like the flood gates are just moments from bursting open. In fact, they may have already.

  23. MiddleoftheRoader says

    The last page of this Republican Judge’s ruling is among the most interesting: He justifies his analysis (or, more properly, preempts the criticism he will receive as being an ‘activist’ judge) by quoting the confirmation testimony of Chief Justice Roberts that “Judges are like umpires. Umpires don’t make the rules, they apply them. … it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” That is a very significant statement clearly is meant for those Republicans who will claim this is an “activist” judge who is making up the rules, rather than applying the law. It’s also clearly intended to get Chief Justice Roberts’s attention.

    As I’ve said in some other posts on other articles, not a single judge (as far as I can tell) has specifically quoted and then rejected ex-Justice O’Connor’s concurrence in Lawrence about the “reasons” that limit marriage to opposite sex partners. Interesting, even Judge White cites the O’Connor concurrence for points he likes in it about the rational basis test, but he doesn’t explicity cite and then reject O’Connor’s comments about traditional marriage.

  24. PhineasFinch says

    It really is quite amazing to see so many pro-equality decisions coming from Republican appointed Judges and Justices. I think it really helps to deflate arguments regarding “liberal activist judges.”

    *Goodridge was authored by a GOP appointed Chief Justice (with 2 more GOP appointed Justices in the majority)

    *Kerrigan was authored by a GOP appointed Justice with 2 GOP appointed Justices and a GOP appointed Judge in the majority.

    *Varnum was authored by a GOP appointed Justice, with the GOP appointed Chief Justice joining the unanimous opinion.

    *Gill was authored by Tauro, a Nixon appointee.

    *Perry was authored by Walker, a George H.W. Bush appointee

    And now, Golinski being authored by a George W. Bush appointee.

    And of course, we had Romer & Lawrence authored by Justice Kennedy, a Ronald Reagan appointee. (Also, Chief Justice Deborah T. Poritz, wrote a forceful pro-marriage equality dissent in Lewis v. Harris)

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  26. johnny says

    @kris: I’d like to see one single post where gay people have slandered polyamory in any way. While it’s most likely a fringe group (which is not a judgement but rather an assumption)much like johnson states above, there seems to be a universal silence from it’s advocates on the issue. I can’t remember seeing any polyamory marriage headlines or cases in front of the court.

    I have no problem with what multiple groups want to do in the privacy of their own homes, but are some inherent problems with polyamory when it comes to various legal issues like:

    1. Property
    2. children
    3. wills
    4. taxes

    Traditionally, marriage between two parties fits a model that is easy to divide or combine fairly in all of these situations and cases (and more). However when the number grows to 3 or more, the problem of “what is fair to all” muddies the waters considerably(and is ultimately unsolvable), which is why the courts struck down polygamy decades ago. Polyamorous marriage is very much akin to polygamy and has the same inherent problems when it comes to legal matters as there are too many parties involved to “fairly” hand out any judgements which would not unfairly treat at least one member of said group.

  27. BZ says

    Since the Ninth Circuit has already held that heightened scrutiny applies to LGBT people, and since Oregon has an “everything but marriage” state in the Ninth Circuit, it seems like the time has come for a court challenge to our mini-DOMA constitutional amendment that was passed in 2004. Basic Rights Oregon – are you listening?

  28. madbiologist says

    Ari –
    One question that keeps cropping up in my mind regards what happens if and when these judgements are affirmed. If DOMA Sec 3, arguably the important section of DOMA, is unconstitutional, what does that mean for federal rights granted to a couple that is married in a state with marriage equality, but which live in a state without it? Would the federal government be forced to recognize the marriage, while the state would be allowed to ignore it?

  29. says

    @madbiologist: thanks for your question. unfortunately, if you live in a state that doesnt recognize your out-of-state marriage, then you are technically not married under state law. you cant file your state taxes as married. nor do you receive any state benefits of being married. DOMA section 3 says that regardless of what you are under state law, federal law says no to same-sex marriage. you are technically not married under state law because you live in a state without ssm and without recognition of out of state marriages. so, DOMA wouldnt change anything.

  30. anon says

    It would have been nicer if DOMA had been repealed during the first two years of the Obama admin when he had majorities in both houses rather than this drip-drip-drip of slow progress.

  31. another Ari says

    Ari,
    How long do you think it will now take for couples directly hindered by DOMA to be impacted? (In my specific case, immigration equality).
    I know it’s an unanswerable question but would love to hear your thoughts.
    Thanks,
    Ari

  32. says

    @ari. great name! DOMA is still on the books and unless it is repealed in Congress (unlikely with a Republican House buttressed by redistricting), we would have to wait for the law to be declared unconstitutional by the Supreme Court and then an executive decision to process gay marriages like heterosexual marriages (the latter is more a formality, but government procedures do take time). The earliest this case could get to the Supreme Court, if appealed, would be late 2013, if had to guess, pushing the decision to a few months after that, so early 2014. dont forget, this case is just at the district court level. even then, the Supreme Court could simply quibble with the summary judgment decision and instead of saying yes or no to DOMA, just send it back for a trial. then were back to the beginning. possible, though doubtful, given all the DOMA challenges winding their way through the courts.

  33. Larry says

    Re madbiologist: I interpreted the question as more like this hypothetical: Let’s say DOMA section 3 is ruled unconstitutional. A same sex couple was married in California, or Massachusetts, or some other marriage equality state. Their marriage would be recognized under both state and federal law. That couple then moves to Utah or some other state with no recognition. Since Utah doesn’t consider them married, does the federal government now consider them unmarried again? Or does the marriage from another state “carry over”?

  34. says

    @larry: yes. you are no longer married under state law when you move to a state that doesnt recognize your alien marriage. you cant file your state taxes jointly, you dont have state survivorship rights if youre a state employees, etc. so, as to the federal government, youre not married. as soon as you move back to mass or california or iowa or any of the states that do recognize as valid your out of state same-sex marriage, then (assuming there is no DOMA), the federal government recognizes your marriage for federal law.

  35. Zlick says

    Isn’t that assuming that there is only no Section 3 of DOMA? If DOMA is ruled unconstitutional as a whole, the exception to the Full Faith & Credit Clause goes with it, no?

    I realize only section 3 is subject to the current case, but are any of the other DOMA cases concerned with the other sections?

  36. MiddleoftheRoader says

    I am not sure that the answer to Larry’s question is correct. In many states, marriages between opposite sex partners under 18 are illegal in certain situations, but they are not legal in other states; in some states, first cousins can marry, but such marriages are not valid in other states; in some states, common law marriages are legal but they are not legal in most states.

    When a couple that is legally married in one state then moves to another state where their marriage is supposedly not legal, MAYBE that allows the other state to deny them some rights accorded married partners (e.g., joint tax filing, survivorship & estate rights, etc). BUT IT IS HARD TO BELIEVE THAT THE FEDERAL GOVERNMENT COULD NO LONGER CONSIDER THE COUPLE TO BE MARRIED FOR PURPOSES OF FEDERAL LAW — can someone cite a court case where that happened? For example, if first cousins are married in Mississippi and one of them is receiving federal health care coverage because the other is a federal employee, then if this couple moves to another state that does not allow first cousins to marry, would the federal government really cut-off the health care coverage of the non-federal employee because s/he is no longer considered to be a ‘spouse’ of the federal employee? That sounds like a ridiculous result. Similar questions regarding Social Security, federal disability and other benefits.

    So, I would not jump to the conclusion that when DOMA disappears (by court decision or by Congressional action), this means that same-sex married partners will lose all federal rights as married partners if they move from one state to another. In fact, if the feds tried to do that, it could create other constitutional questions (like taking property or liberty without due process). I’d like to see some court cases that address this point before agreeing that same-sex married partners who move from Massachusetts to Rhode Island will lose all federal rights as a married couple.

  37. RESOFFLA says

    We were married in Massachusetts but reside in Florida. Does this mean that once Section 3 of DOMA no longer an issue then my US spouse can sponsor a green card for me since this is under federal agency? Or would we have to wait until Florida recognizes same sex marriages from other states? Also taking in consideration other DOMA cases in US courts, what’s the earliest time period for this to happen? Thanks!

  38. Michael Ejercito says

    “[T]he Ninth Circuit in Witt v. Department of Air Force merely found, in the
    context of military policy where judicial deference “is at its apogee,” that the military’s policy
    of “Don’t Ask Don’t Tell” would fail even rational basis review.
    op. at 18, citing Witt, 527 F.3d 806 at821 (9th Cir. 2008)

    But…

    We next turn to Major Witt’s Equal Protection Clause claim. She argues that DADT violates equal protection because the Air Force has a mandatory rule discharging those who engage in homosexual activities but not those “whose presence may also cause discomfort among other service members,” such as child molesters. However, Philips clearly held that DADT does not violate equal protection under rational basis review, 106 F.3d at 1424-25, and that holding was not disturbed by Lawrence, which declined to address equal protection, see 539 U.S. at 574-75, 123 S.Ct. 2472(declining to reach the equal protection argument and, instead, addressing “whether Bowers itself ha[d] continuing validity”). We thus affirm the district court’s dismissal of Major Witt’s equal protection claims.

    Witt, 527 F.3d at 821

  39. Kris says

    I see that some people have responded to my post on polyamory. One person said it is not a sexual orientation. Really? Some people want to be involved sexually and relationship-wise, and love, several people at the same time. That is an orientation.
    No one has the right to deny another’s lifestyle.

    The fact that gay people say that polyamory is different shows that they themselves cannot accept different lifestyles and that they resort to the same pathetically weak arguments that straights do.

    There are plenty of polyamory/polygamy cases in the courts. But it really does not matter how many there are. It is the principle of the matter. Cong. Barney Frank asks “How does gay marriage hurt your [straight] marriage?” But that argument seems not to apply to gays themselves as we can also ask “How does polyamory hurt your gay marriage?” I am amazed that gay people seem incapable of analogizing, and saying that rights that they now have should not be available to polyamorists. Selfish and not intellectually sustainable. Gays have had things pretty much their own way lately and therefore are ready to deny other people the same rights.

  40. BZ says

    @Kris: how do you know what “gay people say” or that “gay people seem incapable of analogizing”? Where did you pull that from? Sounds to me like you’ve got a chip on your shoulder. I have several friends who are poly, including my husband’s brother. Few if any poly folk have expressed any interest whatsoever in getting married. The people I’m acquainted with are inclined to see marriage as an irrelevant and flawed model upon which to conduct a relationship.

  41. littleviolet says

    The problem with the Supreme Court decision is that not only did it promote immorality as the law and deny children a sense of what love and stability are, they claimed that a union between one man and one woman is unconstitutional and that they defined marriage in a very ambiguous way so that it ends up defining virtually every living arrangement to be a marriage. Second, the public was lead to believe that the issue was specifically about gay marriage. If that were the case, then why didn’t supporters of gay marriage simply define what gay marriage is and then run it through the Supreme Court? Why claim that traditional marriage is unconstitutional and create a vague definition of marriage when they could have defined gay marriage while still having DOMA being acknowledged as constitutional?There is no way that a union between one man and one woman is unconstitutional. If marriage had been defined in this country as a union between two men and two women, it would never be said to be unconstitutional. So then how can the Supreme Court say something that is not true? Is it simply because they do not like traditional marriage? This whole event was intellectually dishonest. We were led to believe that the issue was about gay marriage, but in reality it was about destroying the institution of traditional marriage. Both the actions of saying DOMA was unconstitutional and creating a vague definition of marriage had absolutely nothing to do about gay marriage.

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