Comments

  1. atomic says

    If the summary of the linked articles is confusing, I suggest reading up on the Wikipedia articles for “judicial review,” “rational basis review,” and “suspect classification.” Then read the Washington Blade article. It’s a bit dense, but the basic idea is that these lawyers are arguing over two key points: (1) what standard of review is appropriate in deciding constitutionality of DOMA? This touches upon the question of whether gays and lesbians are a suspect class (and therefore laws restricting our rights should be held to the highest standard of review). (2) If DOMA is unconstitutional, which part(s) of the Constitution does it violate?

    What is interesting news here is the DOJ’s current position under Obama. They hold that even the loosest standard of review is insufficient to support DOMA, so they won’t defend it on any basis. This is remarkable because the rational basis standard pretty much requires that such legislation only be coherent and not gibberish. Another interesting point is that the DOJ disagrees with Massachusetts’ claim that DOMA violates the 10th Amendment (i.e., that marriage falls under the jurisdiction of the states). While this seems unfavorable to us on the surface, this position may actually be very favorable and logical, because if DOMA is struck down on 10th Amendment grounds, that might set up a situation where same-sex marriages may be valid in some states but invalid in others, and the federal government would have to defer to each state’s decisions regarding who qualifies for federal recognition. This would be bad because of existing legislation in numerous states. So the DOJ’s position is actually trying to help us by making it about the whole ball of wax–if we win at the federal level, all states would then be required to recognize same-sex marriage regardless of whether they’d passed constitutional amendments to ban it.

    Ideally, what we want to see happen is that (1) we are federally recognized as a suspect class (like race and religion), therefore (2) subject to strict scrutiny, and (3) DOMA is found unconstitutional under the 14th Amendment, not the 10th.

  2. Rich says

    DOMA may not raise any 14th Amendment issues since the plaintiffs are persons to whom their states have already extended equal protection.

    If we win on 10th Amendment grounds, the next step is to force interstate recognition of marriages validly performed under the full faith and credit clause.

  3. Bill S. says

    @Rich: No one is raising a 14th Amendment challenge as the Equal Protection Clause applies only to the states. Rather, DOMA is accused of violating the 5th Amendment’s Due Process Clause, which applies to the federal government. The Due Process Clause of the 5th Amendment has an “equal protection component” (Bolling v. Sharp) and is essentially the same thing as the 14th Amendment, just applied to the federal government.

    @Atomic: If DOMA were held unconstitutional under the 10th Amendment, it would not preclude a future challenge mandating equal marriage in all states. States are free to set their own marriage laws however they like except those laws cannot violate the 14th Amendment’s right to equal protection of the law. For example, states cannot ban interracial marriage (Loving v. Virginia). Do state-level bans on same-sex marriage violate the 14th Amendment? That is not the question being asked today and will not be answered in this case.