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

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  •  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.

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