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Supreme Court seems likely to strike down federal Defense of Marriage Act

Constitution-No-DOMA

Lyle Denniston of SCOTUSblog has the story HERE:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence.  That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail.   The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.

After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor, the Court moved on to explore DOMA’s constitutionality.  And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference.  He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.   Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.”   He questioned Congress’s very authority to pass such a broad law.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

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21 Comments

  1. Kennedy is right. When it comes to regulating private behavior, the feds should not have such a wide stance.

  2. Like I noted previously, this is a state’s rights issue.

  3. Craig Knauss

    Wrong, doc. Some of those people are qualified for federal benefits, work in federal jobs, are present or former (federal) military, etc. So it is not a state issue and the states cannot regulate the federal government, per our Constitution. Also part of it may come under interstate trade, which is also regulated by the federal government.

    Regardless, the states that most strongly supported DOMA have not enforced it with regard to polygamy, have they? Hardly “one man, one woman” there.

  4. “That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. “

  5. Wonder if Justice Thomas was awake during the proceedings.

  6. Craig Knauss

    doc, you still don’t get it. Regulate, not prohibit. The states can regulate marriages in matters like minimum age, having a license, who can officiate, polygamy, etc., but they won’t be allowed to discriminate against an entire class of people. Do you think a law that prohibited marriage for black people would survive? Or prohibit marriage for Italians? How about prohibiting marriage for anyone (adult) under 5 feet tall? Or in a wheelchair?

  7. Craig,

    You still don’t get it. I am not against gay marriage. I don’t really understand the necessity for it, civil unions would appear to accomplish the same thing but to my gay friends it is seriously important.

    To me the original purpose of marriage was for a truly committed man and women to unite for life and raise a solid,stable nuclear family. When we reached the point that the traditional institution of marriage was destroyed by a variety of forces, approval of gay marriage was inevitable. I just wonder what other kinds of nontraditional unions we will accept in the future?

  8. Craig Knauss

    doc,

    You implied that the Court might not want to “infringe” on states’ rights by posting “…Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail.” In the past, states’ rights were used to justify slavery, Jim Crow laws, etc. Those have been overturned along with states’ prohibitions on abortion, etc. I would expect to see the same regarding same-sex marriage.

    And what is “traditional marriage”? The patriarchs in the Bible were mostly polygamists, something the “one man and one woman” people conveniently ignore. And there are polygamist colonies in Utah and Texas and maybe elsewhere. Even though it is illegal there, those states make no attempt to enforce it. The only exceptions were with Warren Jeffs and Tony Alamo, who were prosecuted for having sex with very under-aged girls. My wife knows a lesbian couple who are raising kids and seem to be doing as good a job as most heterosexual couples.

    And don’t forget, many ancient marriages were not for propagation, but were really for consolidating power between the two families. That’s why the royal families of Europe were all related from the throne in England all the way east to the Czars in Russia.

    And how about middle-aged or older men marrying teenage girls? Or 70 y.o. women marrying 30-something men? How about first cousin marriage, which is legal in 19 states? Or substance abusers marrying? Or physical abusers marrying? Or people who live dangerously? Or people who can’t even begin to support a family? And why are Death Row inmates allowed to get married? These are all part of your “traditional marriage”.

    Personally, I’d like to see a ban on hillbilly marriage. We have more than enough morons now.

    BTW, what happened to the Badgers? I was expecting them to go a lot further. But the Big 10 is still kicking butt!

  9. Brian Opsahl

    Thank’s for the laugh Craig, I know this is a dumb question but are you related to the Knauss that are from Rockford..?
    Hillbilly marriage ….makes me think of cousin Eddie from Christmas vacation lol

  10. “And how about middle-aged or older men marrying teenage girls? Or 70 y.o. women marrying 30-something men? How about first cousin marriage, which is legal in 19 states? Or substance abusers marrying? Or physical abusers marrying? Or people who live dangerously? Or people who can’t even begin to support a family? And why are Death Row inmates allowed to get married? These are all part of your “traditional marriage”.”

    No, these are all part of my “traditional marriage” that has broken down.

    Here is some more information about traditional marriage, at least, traditional marriage in the Catholic church.

    As far as my Badgers? Well, unfortunately they did in the tournament what they have been prone to do all year. All in all it was a good year though, as if you would have asked me in December I would have told you they would probably not make the N.I.T.

    The Big Ten is looking awesome though! How about an all Big Ten final four?

    http://catholicism.about.com/od/catholicliving/f/FAQ_Marriage.htm

  11. The Catholic sacrament of marriage has absolutely zero bearing on the law. Without a marriage license recognized by a civil authority, sacramentally-married Catholics are still single as far as the state is concerned. No Social Security bennies, no inheritance tax exemption, no joint tax filing, no assumed paternity for fathers, etc.

    Manufacturing a threat to traditional marriage by changing civil law is like saying my female postal carrier threatens the concept of the male-only priesthood.

  12. Craig Knauss

    doc,

    My first marriage was in a Catholic Church. It lasted 25 years. First wife’s family was entirely Catholic as were some of mine. I went to a ton of Catholic baptisms, weddings, and funerals. At my daughter’s wedding, I was surprised at how many of ex-in-laws’ Catholic marriages wound up in divorce, as did some of my Catholic cousins marriages. So, what’s your point?

    Brian,

    I was born and raised in Rockford. Auburn HS grad. Moved to Chicago area after I graduated from U of I. I now live in WA state. I moved my mother out here 8 years ago. I also had an uncle who lived in Loves Park. My dad is long gone and my uncle would be about 100 if he’s still around.

  13. And so a civil union would accomplish the same thing. My exact point above.

  14. Whoops sorry Craig, I was responding to Luke.

    Craig,

    I was only trying to give additional backround on marriage and it’s history vis a vis the Catholic Church.

  15. Craig Knauss

    doc,

    I got married in a Catholic Church in 1977. However, for the majority of us who are not Catholic, it’s irrelevant. Catholics are free to practice their beliefs as they wish. However, I was raised when the Cardinal (who I will not name) in Chicago had too much power with the state legislature and therefore even non-Catholics (2/3 of Illinois population) had to comply with the Cardinal’s wishes. Back then divorce was only “with cause”. People had to disparage each other to get one. There was no “no fault” divorce. Contraception was essentially banned. “The pill” was illegal to sell and even condoms stated “Sold for the prevention of disease only.” to get around the contraception ban. Do you remember any of this? I do.

    And if a civil union “would accomplish the same thing”, wouldn’t it be easier to just eliminate marriage instead and have “civil unions” for everyone? Ponder that.

  16. doc, all gay marriage advocates appear to want (can’t speak for them) are the exact same legal rights as other married people.

    In a literal sense, every legal marriage is a “civil union”. Some couples just choose to add a religious ritual to this civil contract – a private act that has no legal import and is not being threatened by a SCOTUS decision in any way.

    Call them all marriages or call them all civil unions, as long as there is no legal distinction made by sexual orientation. And keep talk of sacraments and tradition out of what is plainly a civil rights issue.

  17. Craig,

    At the time I was 10 and a Lutheran in Wisconsin, so no.

  18. Luke,

    I agree with you and I think it answers the real question Craig was asking me.

    Marriage in this country (maybe the world) is broken for a variety of reasons. It is certainly not what should be optimally desired in the permanent union between a man and a woman in order to form a family.

    The only hope for traditional marriage is on the ritual and sacrament side. If people view marriage as only a civil union then marriages will be formed and broken just like businesses are started and dissolved.

    In my opinion, that is part of the true root of what is “broken” in our country.

  19. Perhaps, doc, but marriage demographics are only a symptom of cultural changes, not a cause. And in many place those changes are for the better.

    So thank goodness for more and more freedom! What is “optimally desired in the permanent union between a man and a woman” should optimally be decided by that couple, not a civil code or paternalistic culture.

    If people are advancing toward immorality, educate them. Limiting freedom is not this American’s cup of tea.

  20. Craig Knauss

    doc,

    Marriage is “broken” whether it is religious or not. I assume you saw where I said, “My first marriage was in a Catholic Church. It lasted 25 years. First wife’s family was entirely Catholic as were some of mine. I went to a ton of Catholic baptisms, weddings, and funerals. At my daughter’s wedding, I was surprised at how many of ex-in-laws’ Catholic marriages wound up in divorce, as did some of my Catholic cousins marriages.” I was Lutheran and the wife was Catholic. Ritual and sacrament didn’t mean much in any of those marriages. And FYI, I have Mormon friends who have as much dysfunction in their families as the rest of us do, despite the wholesome family image LDS projects.

    I’m not sure what will save marriage, but having discriminatory, self-righteous laws isn’t going to work.

  21. Brian Opsahl

    Craig, around her (Rockford) the name Chad Knauss is a very popular dude ..by now im sure you have heard of him from the NASCAR series. I just had to ask …Thanks..enjoy your writings Sir…

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