For at least the 5th time, a federal court has ruled the Defense of Marriage Act unconstitutional. This time it’s a federal judge in New York, in a case where a woman challenged the payment of an estate tax that was required only because the federal government did not recognize the marriage to her partner.
The important fact here is that the ruling was done on the basis of the rational basis test, which affords the lowest level of scrutiny. In almost all situations, when the court applies the rational basis test, the law being challenged is upheld. The plaintiff argued that the law should receive intermediate or heightened scrutiny, but the judge applied the rational basis test and still struck down the law. The rational basis test only requires that the law have a “rational relationship to a legitimate governmental interest,” a standard low enough that it is enough to uphold the law if “any state of facts reasonably may be conceived to justify it.” And even by that low standard, the judge rejected the government’s assertion of a legitimate interest.
The attorneys for Congress argued that the law does rationally relate to several legitimate governmental interests, namely “maintaining consistency in citizens’ eligibility for federal benefits, promoting a social understanding that marriage is related to childrearing, and providing children with two parents of the opposite sex.” They also argued that “caution” is a rational basis for the law and that Congress believed that DOMA would promote traditional marriage by “maintaining the definition of marriage that was universally accepted in American law.”
The judge ruled that while that interest may be legitimate, “it is unclear how DOMA advances it.”
DOMA does not affect the state laws that govern marriage. Precisely because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, “preserve” the institution of marriage as one between a man and a woman…
To the extent Congress has any other independent interest in approaching same-sex marriage with caution, for much the same reason, DOMA does not further it. A number of states now permit same-sex marriage. DOMA did not compel those states to “wait for evidence spanning a longer term before engaging in … a major redefinition of a foundational social institution.” Thus, whatever the “social consequences” of this legal development may be, DOMA has not, and cannot, forestall them.
Promoting the ideal family structure for raising children is another reason Congress might have enacted DOMA. Again, the court does not disagree that promoting family values and responsible parenting are legitimate governmental goals. The court cannot, however, discern a logical relationship between DOMA and those goals.
This is the inevitable result of building an argument on a false pretext. Those aren’t really the reasons why DOMA was passed or why people oppose marriage equality, they are pretexts that act as a cover for the real reason, which is anti-gay bigotry. And that’s why they’re impossible to defend rationally in court. You can read the full ruling here.
23 comments
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truthdat
June 11, 2012 at 11:09 am (UTC -4) Link to this comment
Wow Ed, how oblivious are you now? Didn’t see you mention the fact that most States in the US have put a ban on gay marriage. So the Supreme Court rules on DOMA, so what. It still doesn’t change the decision of 32 States.
truthdat
June 11, 2012 at 11:14 am (UTC -4) Link to this comment
Ed must still be thinking……hahaha
vmanis1
June 11, 2012 at 11:19 am (UTC -4) Link to this comment
Truthdat, a whole bunch of states had bans on mixed-race marriage. SCOTUS blew all these bans away in Loving. I’m nor saying that this WILL happen with same-sex marriage, given the makeup of the present court, only that it CAN.
truthdat
June 11, 2012 at 11:25 am (UTC -4) Link to this comment
Oh I see you are another idiot who will believe anything. With that said you are dumb enough to believe that “gay is the new black”. Which is crazy.
Zeno
June 11, 2012 at 11:34 am (UTC -4) Link to this comment
There were two basic reasons for the passage of DOMA. The first was simple anti-gay prejudice in the face of advancing recognition of egual rights for all. The second was to permit states to hunker down and ignore same-sex marriages that occurred in other states. The “full faith and credit” clause of the Constitution, however, flies in the face of that: Any legal contract in one state is supposed to be respected by any other state. No one can say, “Ha, ha! You can’t hold me to my agreement because I moved out of state!” The constitutional “full faith” principle makes same-sex marriage portable, and bigots are terrified that their states will be “infected” by marriages conducted in gay-friendlier states. The obliteration of DOMA will restore full marriage portability.
Tabby Lavalamp
June 11, 2012 at 11:36 am (UTC -4) Link to this comment
So, Truthdat, what do you think will happen when DOMA is struck down and a married same-sex couple from New York moves to Kentucky then sues because they were denied benefits or visitation rights?
imrryr
June 11, 2012 at 11:40 am (UTC -4) Link to this comment
Regardless of how you feel about gay rights, vmanis1′s point that SCOTUS can rule that those state marriage laws are unconstitutional (just like it ruled in Loving vs Virgina) is still completely valid. I mean, duh. This is like grade-school level stuff, dude.
I agree. Ed is reading your comments right now and thinking, “Hahahahahaaa!”
tomh
June 11, 2012 at 11:43 am (UTC -4) Link to this comment
@ #1
What’s your point? Rulings against DOMA have nothing to do with state laws against same sex marriage, they merely strike down the law that prevents legally married couples from receiving federal benefits that married couples are entitled to. State laws against same sex marriage are a separate issue.
matty1
June 11, 2012 at 11:45 am (UTC -4) Link to this comment
According to my screen this post was made at 11:14 following your first post at 11:09. You allowed a whole five minutes for Ed to respond before mocking him for not doing so.
What is it like living under a bridge?
thisisaturingtest
June 11, 2012 at 11:46 am (UTC -4) Link to this comment
So let’s compare the necessity for facts cited by the standard to the Congress’s lawyers’ presentation:
1) “maintaining consistency in citizens’ eligibility for federal benefits…” How is that “consistency” threatened by merely adding to the number of citizens eligible? Where is the “fact” here?
2) “…promoting a social understanding that marriage is related to childrearing…” A “social understanding” is a cultural perception, which can be changed. Where is the “fact” here?
3) “…and providing children with two parents of the opposite sex.” This one strikes me as just circular- it’s based on an assumption that two parents of the same sex is a bad thing, and it’s used as an argument for a law that would disallow two parents of the same sex, based on that assumption. It sounds a lot like the arguments against interracial marriage in the last century- “won’t someone think of the children?” In fact, from what I’ve gathered, there is no factual reason to believe same-sex partners aren’t just as good parents as those of the opposite sex. So, again- where is the “fact” here?**
**Though, on reading the quote again, I’m not sure that what I’ve treated as separate arguments (my #2 and #3) aren’t actually being presented as one (“marriage is related to childbearing and providing children with two parents of the opposite sex”, rather than everything after “and” relating to “legitimate government interests.”). The wording isn’t real clear. In that case, just combine my two arguments at #2 and #3 against the one.
brocasbrian
June 11, 2012 at 11:57 am (UTC -4) Link to this comment
“promoting a social understanding that marriage is related to childrearing”
omfg where do the republicans get off telling me what my marriage means. fuck them
tomh
June 11, 2012 at 11:57 am (UTC -4) Link to this comment
@ #5
The second was to permit states to hunker down and ignore same-sex marriages that occurred in other states.
This section of DOMA, (section two) has not been challenged in these cases, only section three, which denies federal benefits to legally married couples. The reason probably is that section two was a totally unnecessary law, since states already have the power to refuse to recognize marriages from other states. Some states refuse to recognize first cousin marriages, for instance, although they were legally performed in other states. Until DOMA, however, the federal government has always recognized all legal marriages, from all states.
The full faith and credit clause has never been used to force states to recognize marriages from other states. It also wasn’t used in Loving which decided on other grounds that bans on interracial marriage were unconstitutional. The same will be true with laws against same sex marriage. Eventually.
thisisaturingtest
June 11, 2012 at 12:02 pm (UTC -4) Link to this comment
@#4, truthdat:
Pot calling the kettle gay (sorry, black)? It doesn’t matter what you believe, it matters what you can prove. If you can prove any of the arguments against gay marriage, using facts and not beliefs (and “but it’s icky! Eewwww!” is not a fact), now is your chance. Go for it. Otherwise, you’re the idiot “who will believe anything.”
tynk
June 11, 2012 at 12:04 pm (UTC -4) Link to this comment
This particular portion of doma has always been a sore spot for me. Military service benefits denied to spouses because a federal law refusing to recognize a marriage is… well it’s bullshit.
Tabby Lavalamp
June 11, 2012 at 12:35 pm (UTC -4) Link to this comment
Now I’m not calling Truthdat a hypocrite or a troll. I’m just pondering how ze figured Ed had nothing to say after a whole five minutes yet hasn’t responded to anyone else yet beyond insulting vmanis1.
dingojack
June 11, 2012 at 12:41 pm (UTC -4) Link to this comment
Sadly, Ed hit our little
scratch toyfriend, Truthdat, with the banhammer.Darn, and we were just warming up too.
:( Dingo
Tabby Lavalamp
June 11, 2012 at 12:47 pm (UTC -4) Link to this comment
Oh! In that case I take back the hypocrisy charge. The troll charge still stands based on zir response to vmanis1.
d cwilson
June 11, 2012 at 12:49 pm (UTC -4) Link to this comment
Dang it! I always miss the troll-baiting fun.
Gregory in Seattle
June 11, 2012 at 12:55 pm (UTC -4) Link to this comment
“A social understanding that marriage is related to childrearing”?
Maybe they should read Washington’s Initiative 957, proposed by a group of marriage supporters in 2007 to ridicule a 2006 ruling by the Washington Supreme Court which held DOMA constitutional because of a “legitimate state interest” in preserving marriage for the purpose of procreation.
theschwa
June 11, 2012 at 2:09 pm (UTC -4) Link to this comment
-Ed must still be thinking……hahaha
Yes, Ed is thinking “Is this a Poe?”
Erp
June 11, 2012 at 3:10 pm (UTC -4) Link to this comment
@12 tomh
Actually full faith and credit does apply to marriages in other states or other countries (except DOMA allows them to ignore same-sex marriages). A first cousin marriage in one state where it is legal is generally recognized in another state where it is illegal (and non-recognition would probably be challenged as it was successfully in Ghassemi v. Ghassemi). Equally important the dissolution of a marriage in one state is recognized in other states.
Marriage which includes one person still under the age of consent in the state of residence (but over the age in the state where it is contracted) are more likely to be ruled automatically void since it involves a felony.
tomh
June 11, 2012 at 4:03 pm (UTC -4) Link to this comment
A first cousin marriage in one state where it is legal is generally recognized in another state where it is illegal
It may “generally” be so, but there are a number of states where that is simply not the case. States choose to recognize them, or not, just as with same sex marriage. For example, from the County Clerks’ Guide To Kentucky Marriage Law, “Marriage between first cousins is prohibited by KRS 402.010. There are no exceptions to the prohibition and such a marriage is incestuous and void. Kentucky does not recognize such a marriage between first cousins even if it is consummated in another state.”
This article, by a Yale law professor who testified before Congress on the subject, explains that the full faith and credit clause has never been used to force states to recognize other states marriages. States set their own standards for marriage, and at times have refused recognition to marriages of not just cousins, but for persons too recently divorced, persons of different races, persons under the age of consent, uncle-niece marriages, and others. This works until their standards run into the Constitution, as interracial marriage did. The only way all states will be forced to accept same sex marriage will be for the Supreme Court to declare all laws banning SSM to be unconstitutional as they did with laws banning interracial marriage.
eric
June 11, 2012 at 4:52 pm (UTC -4) Link to this comment
@11 and @19 – note the judge said ‘childrearing,’ not childbearing.
Though the DOMA defenders are stuck either way. If they say the act’s goal is to support ‘childbearing,’ they have to deal with the married hetero couples without children and without any intention or ability to have children.
If they say ‘childrearing,’ though, they have to deal with the fact that human adults raise other people’s biological children all the time. Be it grandparents, uncles, aunts, godparents, or adoptive parents, this is an extremely common occurrence in pretty much every culture on earth, for all of recorded history.
Thus, preventing gays from being married has no rational connection at all to childrearing. (Or childbearing.)