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View Diary: A point that should have been raised in DOMA arguments today (39 comments)

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  •  An older lawyer once told me (9+ / 0-)

    when I was brand-new, that there are always three arguments: The one you planned, the one you actually gave, and the one you give in the car on the way home.

    I suspect the same may be true of questions the judges ask. Not every question that could possibly be asked gets asked and answered. (SCOTUS used to let arguments go on for days, but now there are strict time limits.)

    The more interesting answer: Could the US government, say sometime before 1967, have had a law saying that the federal government would not recognize interracial marriages as valid, even where the state government did? There wasn't such a federal law, as far as I know. But then, the federal government didn't have as many social welfare programs where it cared who was married -- veterans' pensions were about the only ones.

    So yes, the Federal government recognized the Lovings' marriage even when Virginia did not. But it may not have been required to do so -- until 1967, and then only because the Court said so.

    •  marriage has traditionally been state function (1+ / 0-)
      Recommended by:
      Odysseus

      as has education

      thus if the Federal government is going to issue a statute, on what basis or authority is it claiming the right to do so?  Can those supporting the statute cite either a precedent or a specific constitutional authority?  If not, and it the precedents seem very much contrary, as the pre-Loving example demonstrates, and further the legislation is aimed only a a particular class of marriages, is not there a presumption both of an equal protection violation and a federal intrusion outside the bounds of Federalism?

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Wed Mar 27, 2013 at 06:43:09 PM PDT

      [ Parent ]

      •  Marriage is not a function. It is a mutual (0+ / 0-)

        commitment by two individuals of a certain age--i.e. old enough to carry out obligations.
        The state merely carries out a ministerial function in making a public record of this private event. The state has nothing to do with the establishment of a marriage.
        There is a difference between being and recognition.

        We organize governments to deliver services and prevent abuse.

        by hannah on Thu Mar 28, 2013 at 02:16:18 AM PDT

        [ Parent ]

    •  Scalia answered your question yesterday (0+ / 0-)
      Could the US government, say sometime before 1967, have had a law saying that the federal government would not recognize interracial marriages as valid, even where the state government did?
      There was an exchange in Tuesday's oral argument between Justice Scalia and Ted Olson (attorney for the plaintiffs fighting against Prop 8):
      JUSTICE SCALIA: ... when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?Sometimes -- some time after Baker, where we said it didn't even raise a substantial Federal question? When -- when -- when did the law become this?

      MR. OLSON: When -- may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages?When did it become unconstitutional to assign children to separate schools.

      JUSTICE SCALIA: It's an easy question, I think, for that one. At -- at the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question.

      Scalia's answer is that the EPC made it unconstitutional when the 14th Amendment was adopted in 1868 (even though the SCOTUS didn't decide Loving until 1967).

      Scalia's implicit argument is that those who enacted the 14th Amendment intended to ensure equal protection on the basis of race, but never even thought of equal protection on the basis of sexual preference, thus (in Scalia's eyes) the constitution doesn't mandate equal treatment for gays and lesbians.

      It's a repulsive argument, in my view, but it's Scalia's argument.

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      by MJB on Wed Mar 27, 2013 at 10:13:25 PM PDT

      [ Parent ]

      •  I really wish Olson had said something like this: (1+ / 0-)
        Recommended by:
        teacherken
        I believe you recognized that in your 2003 dissent in Lawrence v Texas, where you acknowledged that if Lawrence stood as precedent there could be no rational basis for a state to prohibit same-sex marriage.

        With mixed-race marriage it took the court 100 years to recognize that mixed-race couples had a 14th Amendment right to marry.   Hopefully the court will act with greater alacrity this time to correct a clear violation of equal protection.

        •  That's a good point, but... (1+ / 0-)
          Recommended by:
          skrekk

          ... remember that, at the oral argument, Olson is not trying to win a debate with Scalia.  Olson's task is only to try to persuade at least 5 justices (and Scalia will never be among that group) to do the right thing in Hollingsworth.

          Please help to fight hunger with a donation to Feeding America.

          by MJB on Thu Mar 28, 2013 at 09:50:08 AM PDT

          [ Parent ]

      •  Cons see the world in terms of the thing (0+ / 0-)

        acted upon (the object), rather than in terms of the agent (subject). The issue here isn't who's affected, but that our public servants are not supposed to determine the level of service based on some irrelevant characteristics of the recipients of their ministrations.
        The Cons see public corporations as entities that are superior to the citizenry (who are superior to non-citizens) because they are convinced that a heirarchy of authority is absolutely essention to society -- that, if there is not some ruling elite directing the affairs of man, there will be utter chaos. That the Constitution is like a cook book or operational manual designed to direct the behavior of the agents of government just doesn't register with them. Their prejudice tells them that governments are established to rule, not to deliver services to the public. If they even think of public service, it's in the context of coercing good behavior being good for the coerced -- at least to the extent of freeing them from the deficiencies of original sin by secular means.
        The Cons have convinced themselves that agents of government step in where religion has failed to impose restraints. Where do the agents get authority to do that? The Constitution gives it to them because, long ago, people gave their consent to be submissive to the end of time. The nation is a secular version of the kingdom of God.

        We organize governments to deliver services and prevent abuse.

        by hannah on Thu Mar 28, 2013 at 02:30:49 AM PDT

        [ Parent ]

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