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View Diary: Obama administration will file brief in Prop 8 case (101 comments)

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  •  No, it's federal Equal Protection (6+ / 0-)
    Recommended by:
    gchaucer2, accumbens, jrooth, craigkg, jayden, wader

    And they can go to the Romer/Moreno/Cleburne "rational plus" without hitting heightened scrutiny.

    •  Will they use the Romer rationale that the 9th (3+ / 0-)
      Recommended by:
      aitchdee, jayden, wader

      Circuit did (equal protection, but only applies when a state takes away an existing right for invidious reasons,) or will they use the district court's much broader equal protection rationale (constitutional right to same-sex marriage)?

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Thu Feb 28, 2013 at 01:27:33 PM PST

      [ Parent ]

    •  This is really a difference without much of a... (2+ / 0-)
      Recommended by:
      wader, terrypinder

      ...distinction.

      Romer is as binding across the nation as most any other Supreme Court case; this would be the same.  It doesn't matter if the SCOTUS determines we're a "suspect class" and therefore due strict scrutiny or "only" deserving of rational basis.

      The fact is that the homophobes supporting this can't even come up with a rational basis that isn't rooted in animus or tradition, and the SCOTUS has already precluded those two in Romer.

      Whichever route you take is going to strike other anti-marriage equality amendments and laws in its wake.

      In any event, people here seem to constantly forget that DOMA is also on the table, and that most certainly will have national implications.

      •  the difference, as I see it (1+ / 0-)
        Recommended by:
        wader

        Romer, because it's based on ill motive, helps us strike down new laws which were consciously passed to block marriage equality. But it won't be enough for states where they just haven't consider the question in over a century. That's where we need heightened scrutiny.

        This DOMA decision will likely only say "when a state has recognized marriage equality, the feds have no rational basis not to do so as well."

        In other words, you can resolve both cases without hitting heightened scrutiny.

        •  I think DOMA's going to be struck completely. (1+ / 0-)
          Recommended by:
          wader

          Loving more or less demands it, and you can't have people legally married in one state and legally not married once they cross state lines.

          As for what is essentially your "historical" argument, that was also dealt with by Romer and said just because we've done things one way for a long time does not mean it's constitutional.

          There's a reason they took both Prop 8 and DOMA at the same time.  Right now, the law regarding same-sex marriage is a legal hash, and the law generally abhors that.  You can't have a couple married in Iowa, then not married in Nebraska, which is why we have the Full Faith & Credit Clause in the U.S. Constitution.

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