Skip to main content

View Diary: Anthony Kennedy will overturn DOMA (20 comments)

Comment Preferences

  •  Legal ? and political note (1+ / 0-)
    Recommended by:
    LeftyAce

    If DOMA is overturned, isn't the next step having lawsuits filed that legal gay marriages have federal status (for taxes and immigration), although likely that would be announced by the administration right away (leading to lawsuits challenging that).
    And then, isn't the precedent that if someone has a legal marriage in one state, other states need to recognize them (Love vs Virginia), even if those states don't issue licences?
    I'd like a lawyer to speak about this, but this seems logical.

    Then the political side - the best thing for the Repubs is for this issue to be settled, since it is an albatross for them. But shortterm, if this does lead quickly to legal gay marriage, it will bolster the secessionist (very minor) movement, or at least some states saying they will totally fight any acceptance, and if forced, still try to defy.

    The rightwingers on the court (somewhat less Kennedy) are very politically) astute. I could see Roberts, maybe even Alito thinking about this. A 7-2 vote overturning DOMA would have a much more dramatic effect than 5-4.

    •  Not a lawyer but I follow this issue closely (7+ / 0-)

      Overturning DOMA would be done most likely on the basis that it affirmatively does something impermissible (recognizing some but not other state-sanctioned marriages/infringing on the right of states to determine who they will permit to marry and who they will not permit to marry).

      Overturning DOMA would mean that any state-sanctioned marriage would have to be recognized for federal purposes. No further lawsuit would be necessary as that is precisely the point of the current group of suits: to require that legal sex-marriages be recognized by the federal government when it comes to providing benefits and rights.

      All of the current suits address Section 3 of DOMA, the purpose of which was to give the federal government to ignore same-sex marriages legally permitted by states. Section 2, which has NOT been challenged, provides the states with cover for not recognizing marriages performed in other states. There is already a legal basis for that to happen anyway, regardless of the type of marriage involved. The basis is (approximately) that while states will generally recognize  marriages performed elsewhere they are not required to do so if it would offend some important public policy. Such exceptions are rare at the moment but given that we are soon to reach a point where over 20% of Americans will be living in states where marriage equality prevails, the legal implications, it will undoubtedly be necessary at some point to litigate the issue separately. There is a difference between what DOMA allows, which is for states to say, in effect, we won't recognize your marriage because we don't feel like doing so. From this point going forward (assuming that Section 3 of DOMA is overturned), I presume that states would be required to give more compelling reasons for not recognizing a particular class of marriages legally performed in other states.

      There has been some thought given to the idea that, were the Supreme Court to take on the California Prop 8 case and rule in favor of the plaintiffs, the case would become the equivalent of the Loving vs Virginia case which struck down all state laws regarding interracial marriages. I rather doubt that the Supreme Court would be willing to go that far. By not hearing the Prop 8 case, Prop 8 will be struck down in a way that affects California exclusively.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site