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View Diary: The SCOTUS Stopped Short of Equal Protection. DOMA Still Hurting LGBT. (20 comments)

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  •  its.not.clear that section does anything. (4+ / 0-)

    states probably wouldn't have to acknowledge gay marriages from sister states with or without DOMA because of the "public policy exception" to the full faith & credit.clause.

    •  They would... (1+ / 0-)
      Recommended by:
      Dave in Northridge

      I suspect they would be forced to ignore all marriages from stares that have approved gay marriage. If they accepted as valid a document that has a M/F and not one that is M/M I would think the gay couple would have the ability to go to the courts on the grounds of equal protection.

      Am I wrong that section 2 bars LGBT people from even seeking that protection?

      •  You could go to courts now (3+ / 0-)
        Recommended by:
        jpmassar, terrypinder, skrekk

        on Equal Protection.  The point is simply removing Section 2 of DOMA doesn't change anything.  More litigation is needed.

        One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

        by AUBoy2007 on Thu Jun 27, 2013 at 10:11:10 AM PDT

        [ Parent ]

        •  In other words (1+ / 0-)
          Recommended by:

          a law (Section II of Doma) does not supersede the US Constitution.

          But someone has to challenge the non-recognition of same-sex marriages by other states as a violation of the US Constitution.

          But people have been unwilling to do so UNTIL NOW because of serious fear that the Supreme Court would rule against them, leaving a horrible ruling intact for years and years.

          But now the language of the DOMA (Section III) ruling (as Scalia helpfully pointed out) can be used to plausibly argue that non-recognition is a violation of equal protection, etc.  The argument might still lose, but it has a much better chance.  (It would have a much better chance were one of the conservative justices to be replaced before the case reached the Supreme Court by a Obama appointee)

      •  You're wrong, and here's why: (0+ / 0-)

        In Summary:

        • When a court in one state issues a judgment in a lawsuit, including a lawsuit that somehow involves a marriage -- an award on an insurance or wrongful death claim, or the resolution of a custody dispute -- full faith and credit has always required other states to give effect to that judgment, almost without exception.

        • When there are no court judgments involved, and a couple has simply gotten married and wants another state to recognize that marriage for some reason -- the probate of an estate, or equal participation in a public employer's health, insurance and retirement benefits -- the situation is more complicated. These questions have always been treated as a matter of policy for the states to decide, rather than as a matter of mandatory obligation. Some states have taken a liberal attitude toward such recognition, while others have employed a more case-by-case analysis.

        • Historically, states have reserved the right to apply an exception for reasons of public policy when they are asked to recognize an out-of-state marriage, even if their normal rules would otherwise indicate that the marriage should be given effect. But that public policy exception has never been available where judgments by courts are involved.

        The simplest and best example is that of mixed-race marriage.    Full Faith and Credit did nothing to prevent the south from ignoring (or criminalizing) valid out-of-state marriages.
    •  If the section does nothing rather than something, (0+ / 0-)

      then why is it present? I think that in the 90s, the haters thought they better throw it in, just in case some court found that the public policy exception to the full faith and credit clause cannot properly be applied to deny recognition of same-sex marriage.

      It is not events that disturb us, but our interpretation of their significance.

      by Montreal Progressive on Thu Jun 27, 2013 at 07:58:00 AM PDT

      [ Parent ]

      •  The state of Hawaii. (1+ / 0-)
        Recommended by:

        The history behind section 2 was that Hawaii was about to grant gay marriage and the other states were scared to death that they were going to be forced (full faith and credit) to recognize those Hawaiian marriages in their states.

        This was put in for the soul purpose to deny LGBT equal protection.

        •  It was really more of a feel-good clause because (0+ / 0-)

          it did nothing to change the legal status quo.

          The link I posted upthread  has an argument about why section 2 needs to be repealed anyway:

          In Summary:

          • The states never needed DOMA in order to refuse recognition to out-of-state marriages between same-sex couples. If they are bound and determined to refuse to give any recognition to those relationships, they already have the power to do that, and repealing DOMA in its entirety will not change that fact.

          Repealing DOMA remains vitally important, however, because the statute places in jeopardy all court judgments that are based upon the existence of a same-sex relationship. Authorizing states to refuse to enforce this one class of out-of-state judgments -- something that has never been done in the history of the United States -- disrupts family and financial relationships and encourages irresponsible behavior.

          DOMA also has the effect of encouraging states to avoid the kind of serious analysis that marriage recognition disputes require. There are many situations in which it makes sense for a state to recognize the relationship of a same-sex couple, even if the state would not allow the couple to marry in the first place. States have an obligation to analyze those situations carefully. DOMA encourages states to treat these couples with hostility, and it represents a particular type of affront to one class of citizens that is unprecedented in federal law.

          So section 2 is really more of a theoretical concern in court cases, but obviously needs to go.

          I hope all of this gets resolved quickly for you and your husband, and for everyone else impacted by these bigoted and insane laws.    I have a daughter who would like to marry her girlfriend, but if she does that in Iowa she faces a potential 9-month jail term and a $10,000 fine when she returns to Wisconsin.    Hard to say if that's enforceable or if the state would be dumb enough to enforce it, but still....

      •  It was put in to make clear that Congress' (3+ / 0-)
        Recommended by:
        JerryNA, AUBoy2007, skrekk

        OPINION was that the full faith and credit clause did not apply to same-sex marriage documents.

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