All this foofraw about the DOMA brief doesn't answer 1 burning question

[konnichi wa]

First of all, I find it hard to imagine that some GS-11 took it on himself to toss this burning turd into the court system without approval or consultation from someone like WAY up near the top...

however

if that is indeed what happened, the guy in the big white house with the pillars has had plenty of time to issue a 2 minute public comment about it...either to distance the administration from its ugliness...or to embrace it, whichever shoe fits.

[lame54]

1. Why isn't the DOJ spending their time reviewing the Seigelman case?

[OmmmSweetOmmm]

2. And has thrown out Repuke cases......

[readmoreoften]

5. Too busy appealing to the Republican base.

Hell, they got us behind the pool stick, right? "Who else ya gonna vote for?"

My answer: the strike committee that will form after the mass strikes begin. :shrug:

[sandnsea]

12. Did he really take a $500,000 campaign contribution

in exchange for giving a doctor a seat on the Certificate of Needs Board? Where did that money come from? I really don't know.

[sandnsea]

3. That's not what happened

It's what some misguided soul conjured up that many others ran with.

Lawyers all over the internet have explained this repeatedly and thoroughly. The DoJ must defend the law as it sits on the books - unless the law is so blatantly unConstitutional, repeat, unConstitutional, that it's obvious to a 5 year old. Not immoral. Not unethical. Not painful. Clearly and blatantly unConstitutional. That is not clear with DOMA which is the reason gay activist groups chose the state by state strategy instead of a direct Constitutional fight.

The brief argues LAW, not sociology.

[ZombieHorde]

4. Is the fact that incest and pedaphilia were used as examples,

the two things homophobes always bring up when discussing gay rights, a mere coincidence?

[sandnsea]

7. Marriage laws of different states

were argued. That's all. The words incest and pedophilia are not in the brief in any way shape or form.

[ZombieHorde]

9. Those acts were described, even if the exact words were not used. nt

[sandnsea]

11. Marriage Laws were cited

Age of marital consent, who can marry, those are what differentiates marriage laws from state to state.

[ZombieHorde]

13. I am aware of that, but why those two examples. There must be other examples out there.

[sandnsea]

14. So you don't know whether there are

you just jump on the bandwagon of hate - is that it?

No, those are the legal variations of marriage in different states. Age and genetics, I really can't think of any others.

[ZombieHorde]

18. "I really can't think of any others"

What about immigrants who come into this country without proof of marriage? There must have been a court decision at some point in U.S. history.

How about when a spouse is missing for years and the non-missing person wishes to remarry? A court would have likely decided what to do.

the bandwagon of hate

I don't even hate Bush, so no, I am not on that particular bandwagon, I am on a few different ones.

[sandnsea]

19. Those aren't about varying state laws

I don't know what your example has to do with one state honoring the laws of another state.

[jberryhill]

29. First Cousins Is A Major State-To-State Variation In Whom Can Marry

There are people who are unaware that first cousins can marry in many states, and who find the concept odious.

[glitch]

37. There didn'tt need to be any examples, or even a brief for dismissal in the first place.

The brief reference to incest and pedophilia was gratuitous. Nasty, ugly, gratuitous slurs on a large segment of his base. Not just gays, but human rights advocates.

This brief was done either to embarrass Obama, or God Forbid, signal his philosophy. Either way, he needs to clean it up, or come clean about it.

[sandnsea]

41. Those words are not used

They are not anywhere in the brief. There is no comparison between any individuals in any way. The slur is actually against Obama.

[glitch]

43. Nice nits. See post #26 in this thread.

Who do you think you are kidding?

[sandnsea]

47. They're not comparing behavior, they're comparing state laws

I find it sad that so many educated and intelligent people don't understand some really really simple legal concepts. DOMA is about the application of state laws. Obviously you will need to cite cases where state laws differ. They generally differ over issues of age and genetics. That's all. Nothing perverted or sinister in the citing of those cases except in the eyes of the people who see it there.

It's unfortunate that no one is allowed to argue the law here without being accused of being a homophobe. Oh my god, yes the recent California decision did uphold the legal benefits of marriage, how horrible to point that out. No, sex in airport bathrooms is not appropriate. Yes, I fought for gay rights legislation in Oregon and resented being told I was hateful for suggesting the rights were more important than the word, as a beginning.

That makes me a horrible person? Only to people who just can't handle reality.

[glitch]

49. Read your post again. Imagine you are saying these things to a person standing in front of you.

-I find it sad that so many educated and intelligent people don't understand some really really simple legal concepts.
-Only to people who just can't handle reality.

People don't think you are a horrible person because you disagree on legal concepts -- although in the case of defending this particular brief we might make an exception -- but think for just one moment on how you are disagreeing.

[sandnsea]

51. I would call a person standing in front of me a fucking idiot

This is so goddamn simple a 5 year old could understand it. It is NOT a matter of disagreement.

It is a matter of correct and incorrect. The cases were cited because of martial laws. Period.

And how am I disagreeing? By saying the same damn thing over and over and over and over - until someone STICKS THEIR NASTY-ASS ATTITUDE on me. I don't put up with that shit from anybody - not here, and most certainly not in person.

[glitch]

52. Okay then, I'll back away slowly, never taking my eye off you. Then if I see you again I'll cross

the street. It that is how you want to live, I can accommodate. Good to know, thanks.

[sandnsea]

53. lol, you are rude to me

and then pretend to be offended when you get your shit shoveled back at you. Grow Up.

[HarukaTheTrophyWife]

24. Well, apparently, you did not read the brief

Color me unsurprised.

[sandnsea]

25. No, apparently you didn't, nor the majority of DU

and no I am not surprised.

It's about Marriage Laws - not sociology.

... And, as the Court repeatedly has acknowledged, longstanding principles of conflicts of law do "not require a State to apply another State's law in violation of its own legitimate public policy." See, e.g., Nevada v. Hall, 440 U.S. 410, 422 (1979); see also Williams v. North Carolina, 317 U.S. 317 U.S. 287, 296 (1942) ("Nor is there any authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the 6 Among the "incidents" of marriage mentioned in the Restatement (Second) of Conflict of Laws are "that the spouses may lawfully cohabit as man and wife . . . the marital property interests which each spouse may have in the other's assets . . . the forced share or intestate share which the surviving spouse has in the estate of the deceased spouse that a party to the marriage is the 'spouse' of the other . . . within the meaning of these terms when used in a will, trust or other instrument." See Restatement (Second) of Conflict of Laws § 284 cmt. a. 20 statutes of any other state."). Under this longstanding public policy doctrine, out-of-state statutes or acts that are obnoxious to the forum State's policy need not be followed under the Full Faith and Credit Clause...

The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State's policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th state); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void").

[varelse]

26. Laws against underage marriage and marriage between relatives are cited

Pedophilia
"marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage)"

Incest
"In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void")

Prohibiting marriage between two consenting adults of any race, gender, or age is disriminatory - it is, in fact, a violation of their civil rights. Citing laws which prohibit incest or underage marriage implies that marriage between two consenting (and unrelated) adults of the same sex somehow falls into the same category.

[sandnsea]

27. If the marriage is legal

then it's not incest or pedophilia, is it? They are cited because these are the cases where state laws vary, not because of the reasons they vary.

[jberryhill]

31. That's not talking about pedophilia OR incest

In Indiana, 16 year olds can get married under certain circumstances. The point is that OTHER states don't allow marriage at that age. Unless you are arguing that Indiana is full of pedophiles, that's not about pedophilia.

The same goes for first cousin marriages - perfectly legal and not considered incest in a lot of states. Banned and considered offensive in a lot of other states.

There are marriages in various states which are not legal in various other states - entirely apart from the question of gay marriage.

The point is that we have never had a uniform national law on who can marry whom.

[LooseWilly]

62. The part that I find most troubling is that the brief went beyond arguing the issue of standing.

There were at least ten pages of frankly persuasive arguments regarding whether or not Smelt had standing in this case to sue the US Government. If the Administration were truly "dedicated" to the repeal of DOMA, one would think that those arguments would have been sufficient... and would have most certainly satisfied any and all constitutional requirements to defend the US Government in a legal suit.

However, the attorneys involved went on to cite a number of cases in which marriages in one state were not recognized in another as further justification to uphold DOMA. The references to marriages between an uncle and his niece, a man married to a 16 year old, and two first cousins were, as you state, matters of legal precedent... but the allusions to them to uphold DOMA were unnecessary, given the arguments regarding standing, and inconsistent with an Executive policy position that DOMA is bad policy and should be repealed.

The part of the brief that truly offended me, however, was the interpretation of Loving v. Virginia that was cited (p32 lines 1-8)

Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S. Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11. No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a ... purpose" to discriminate against either men or women.

The fact that DOMA can so easily be re-cast as an issue of "Heterosexual Supremacy":

The Court had little difficulty concluding that the statute, which applied only to "same sex marriages involving homosexuals" was "designed to maintain Heterosexual Supremacy" and therefore unconstitutional.

Should be enough to give anyone pause. The fact that something like this was allowed into a brief defending a law that the President ostensibly would like to see overturned, seems to me to be not only offensive and inconsistent with stated policy goals... but completely unnecessary from the standpoint of defending the US Law as required by the Constitution.

The fact that the law being cited would've applied to Obama's own parents only further highlights how offensive resorting to this case law is in this instance.

You can argue, if you'd like, that the DoJ is required to defend even laws that it doesn't personally agree with... but the Constitution does not require that the DoJ include dubious and questionable interpretational stretches in its briefs...

[AntiFascist]

6. So why do they have to go so far as to point out...

that continuing to ban gay marriage is in the nation's best financial interests for tax reasons? So, now, money trumps everything including equality and the pursuit of happiness?

[sandnsea]

8. As I posted previously and repeatedly, House Report 104-664

Was quoted. This is the report used when DOMA was passed. States opposing using taxes to pay benefits to other states was part of the argument in 1996.

http://thomas.loc.gov/cgi-bin/cpquery/z?cp104:hr664:

[AntiFascist]

15. Like I said, money seems to trump our basic rights....

From that report:

"If Hawaii (or some other State) were to permit homosexuals to `marry,' these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual `marriages' on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex `marriages' will thus preserve scarce government resources, surely a legitimate government purpose."

[sandnsea]

16. Yep. That's in the 1996 Report

I agree it's pretty disgusting, but I thought we already knew that the basis of DOMA is disgusting.

What we apparently don't know is that when you're a lawyer, you argue the law in the best interest of your client. Whether the client is Scott Roeder or the Federal Statutes.

[AntiFascist]

17. The problem is...

we can ONLY count on the judicial branch to uphold the equal protection clause. I can see why Congress might be able to pass legislation using such statements, but for the DOJ to issue a similar statement and enshrine it into law is a different matter altogether.

[sandnsea]

20. The DOJ didn't enshrine anything into law

It filed a Motion to Dismiss. The court either upholds it or overturns it. The main basis of this is that the California couple have no standing because they aren't married and DOMA applies to marriage. I don't think any civil rights issues will be decided with this case in the end.

Still, a vigorously defended law, that the court rules on, is going to have a lot more validity with the people than one that the government politicizes.

[LooseWilly]

63. Actually, they *are* married. The standing issue is cited because they haven't...

... actually suffered any losses as a result. In other words... only once they've (for instance) filed a joint federal tax return, and been audited by the IRS, and are in actual legal jeopardy... only then will they have "standing".

Pretty fucked up, but that's the law for you.

And as for "validity with the people"... vigorously defended doesn't mean a whole lot. I'm sure Roe v Wade was vigorously defended... still has little "validity" with a whole lot of "people"... in the case of the law, I think enforcement by the people with the big guns makes a hell of a lot more difference than "validity with the people".

[konnichi wa]

21. Not my point. I was simply noting that the president has not seen fit to even mention it.

Even after all the hell we have raised. Why do you think that is?

[sandnsea]

22. He's watching Iran and S Korean troops mobilize?

It's not the role of the Executive Branch to comment on Justice?

A host of possible reasons, but that really isn't your point either.

[konnichi wa]

39. Uh, the DOJ works for the Chief Executive. Or at least they used to...

maybe it's all different with 'the change'.
:eyes:

And what the hell is this babbling about Korean troops mobilizing? Are you smoking that funny weed?

[HarukaTheTrophyWife]

23. The brief compares it with pedophelia and incest

Apparently, that's a comparison that you see fit to defend.

[jberryhill]

34. To be clear...

Because the green states on that map allow first cousins to marry, then those states laws promote incest?

The point is that state laws vary on the subject of first cousins. Some ban it. Some allow it if infertility is proven, and some allow it outright (although North Carolina doesn't permit second generation cousin marriages).

The states that ban it call it incest.

Persons under 16 can marry in Connecticut with court permission. That does not mean that CT is a hotbed of pedophilia. Again, the point is that other states have made different choices with respect to age, and do not have to recognize two married fifteen year-olds from CT as married in their own state.

[JustinL]

60. DOMA is clearly and blatantly unconstitutional

It clearly and blatantly violates the Equal Protection Clause of the 14th Amendment.

[LooseWilly]

64. Actually, the fucked up thing is that, technically, DOMA might not violate the 14th Amendment.

Mind you... I hope I'm wrong... but I've been dredging through this goddamned brief... and I came across a hugely offensive sentence that I'll share with you.

"Even if viewed as establishing a classification on the basis of sexual orientation, DOMA still could not be subjected to heightened scrutiny on the theory that it draws and suspect classification; the Ninth Circuit has concluded that sexual orientation does not constitute a suspect classification."

(p31, lines 15-17).

Apparently "heightened scrutiny" is the term used for laws that may or may not involve discrimination... and "suspect classification" are the "classifications" that qualify for protections from discrimination.

Please tell me that I'm wrong... but this brief suggests that "sexual orientation" is not protected under the Equal Protection Clause of the 14th Amendment (http://www.answers.com/topic/suspect-classification)... and, apparently, "gender" isn't protected either...

WEAK.

[JustinL]

68. the 9th Circuit ruling that the brief relied on is problematic in several ways

From pg. 31 of the brief:

...the Ninth Circuit has concluded that sexual orientation does not constitute a suspect classification. See High Tech Gays v. Defense Indus. Sec. Clearance Office. 895 F.2d 563, 571 (9th Cir. 1990) (rejecting challenge to policy of conducting expanded investigations of homosexual applications for security clearances). That holding is of course binding here.

Here is the cited Ninth Circuit ruling. From page 8:

The Supreme court has ruled that homosexual activity is not a fundamental right protected by substantive due process and that the proper standard of review under the Fifth Amendment is rational basis review. Bowers v. Hardwick, 478 U.S. 186...(1986)

Bowers v. Hardwick has subsequently been overturned by Lawrence v. Texas, where the Supreme Court ruled:

Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.

From pg. 10-11 of the Ninth Circuit ruling:

To be a "suspect" or "quasi-suspect" class, homosexuals must 1) have suffered a history of discrimination; 2) exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and 3) show that they are a minority or politically powerless, or alternatively show that the statutory classification at issue burdens a fundamental right...

While we do agree that homosexuals have suffered a history of discrimination, we do not believe that they meet the other criteria. Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes...

The statement "homosexuality is not an immutable characteristic" is false.

Pg. 11 continues:

Moreover, legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through the passage of anti-discrimination legislation. Thus, homosexuals are not without political power; they have the ability to and do "attract the attention of the lawmakers," as evidence by such legislation...

These two sentences are belied by the existence of DOMA.

[BuyingThyme]

10. Yep.

[jberryhill]

28. I agree with that /nt

[Boomerang Diddle]

30. If presidents were to issue statements about every legal matter the government is involved in

they'd have no time to actually do what they are elected to do, that being RUNNING THE COUNTRY!

[bigjohn16]

33. This issue is very important to a large segment of his base.

To blow it off as nothing would really be a bad political move in my opinion.

[konnichi wa]

40. If he can take an hour to buy a goddamn hamburger he could manage 30 seconds

to make some sort of comment about this...even to say he agrees with it, if that is the case.

[JustinL]

61. if he has time to attend fundraisers, he has time to issue a statement

[bigjohn16]

32. I'm not sure how anyone can defend this heinous brief or the silence from the White House.

It either means the President knew of it and had no objections or he was uninformed about a brief that involves an issue that's extremely important to his base. I don't particularly like either case. To think that the President was hands off on this is unrealistic but if that's the case he needs to get in the game or this could cost him politically.

[glitch]

38. It may already be too late.

I think he's chosen to abandon progressives in the hopes of acquiring disaffected (self-described moderate) Republicans, who, IMO, he may gain in the short-term but who will toss him the instant someone, anyone, in the Republican party becomes even slightly viable.

[Withywindle]

35. That's it in a nutshell.

I don't want to say Obama could FIX this, because it's not that easy, and there is most certainly a pattern here.

But as all his supporters - including me, and I am very sad and disillusioned now - know, he is VERY good at using language to inspire, to comfort, to get people on his side.

It would take him 10 minutes tops to condemn the language of this statement, express his regrets, and set the wheels in motion to do something positive. It is most certainly within his power to call a press conference. He gets a dog, he takes his wife out to the theater, he takes his VP out for cheeseburgers; reporters appear. He has to beat them off with a stick most of the time. If he gave the slightest inkling of a damn about GLBT people - who all supported him during the campaign except for a miniscule percentage of the most damaged of us - one of those soaring speeches he can crank out in his sleep would help, and so would just a hint of inclination to get rid of the people in his administration who hate us most.

He has done nothing. NO THING.

And, coming from a man who counted on GLBT support, that silence is deafening. I grew up in a state where Obama's own parents' marriage wouldn't have been recognized at the time that he was born. The very same state where the Lovings were hauled out of bed and arrested two years before I was born. If not for that case, it could have happened to MY white & brown parents too. Even if I were straight, I'd be able to recognize the wrongness of SOME people being allowed to marry the person they love and not others - it should NOT be a huge leap for Obama, who sold himself as being so empathetic, to do so.

I don't understand his blind spot here. I still admire him in many respects, but this is a flaw I do not forgive. It's something he needs to CHANGE if he wants my full respect back.

[konnichi wa]

42. Thank you, for expressing my own feelings more diplomatically than I generally do or can.

:D

[Withywindle]

58. Thank you. I worked so hard. I feel so betrayed.

Would I rather have McCain? Fuck no.

But this bi-ethnic bi-national bi-sexual had higher hopes. :(

[ruggerson]

65. What a beautiful post

thank you.

[TexasObserver]

36. flamebait

There are intelligent, useful ways to discuss this topic. This thread isn't one of them.

[glitch]

44. The brief itself was very intentional flamebait, IMO. The OP is correct that Obama can fix this. nt

[konnichi wa]

45. Actually, even if he can't 'fix' it with the stroke of a pen, I'd be gratified if he would

just SAY SOMETHING! At this point, I'd rather hear "yes I agree with the brief" than nothing, zero, zilch, zip, nada, silencio that we've been treated to so far. I have to say, I like our president...a lot and that just makes me more puzzled than anything else, wondering what the HELL is going on that he can't manage a short comment - as far as I know his Press Secretary hasn't managed to say one goddamn word about it.

It is baffling.

[glitch]

46. That's what I am talking about. Make a statement. IMO this is a fumble.

He could keep it from turning into something worse than a fumble, but like I said above, it may already be too late.

Obama is better than this brief, he owes it to himself, his supporters and his agenda to demonstrate that.

[dorkulon]

50. What makes it flamebait--other than the general topic?

The OP has a point. If Obama isn't behind the brief or its rationales, he could easily say something to that effect.

[TexasObserver]

57. The tenor. As I said, the topic is fine.

I don't care for DOMA. I could and would argue that it is unconstitutional under the 14th.

People who start threads have the ability to frame their threads as discussions or as snark fests. This one is the latter. It need not be. The topic is worthy of thoughtful discussion.

Inflammatory or Flame-Bait Discussion Topics

Do not post "flame bait" discussion topics. While there is no clear line regarding what constitutes flame bait, the moderators have the authority to shut down threads which they consider too rhetorically hot, too divisive, too extreme, or too inflammatory. Please use good judgment when starting threads; inflammatory rhetoric does not normally lead to productive discussion.

[LooseWilly]

66. I disagree.

I think you are missing the political point here... which is the emotional reactions that have been whipped to a near frenzy with yet another action on the part of the administration which is tone deaf to a portion of what was Obama's base in '08. This thread allows one to synthesize that emotional/political aspect of what's happened with the legal aspects.

If you aren't even willing to acknowledge the anger in order to begin a discussion though... then I'm not sure you are entitled to decide what is an intelligent way to approach anything...

Be tokhmam...

[Jakes Progress]

48. He figures he gets a bye with this

because of all the cheerleaders here on DU.

That brief was disgusting and any DU'er who defends the brief is an bigot. Weaselly defenses the president for not yet repudiating the brief don't make you a full-fledged bigot, but it qualifies you as insensitive and less than honest about your motives. If you want to say Obama Right or Wrong, then just say you don't care about how the administration feels about gays or health or the war or privacy, that you only care to be one of the team, regardless of what is done or said. That kind of honesty would be preferable to the sentence parsing and nit picking.

The brief was obscene and offensive. Obama can pull this out, but every minute he waits damns him.

[Bodhi BloodWave]

54. If the brief was obscene and offensive

are you of the views that the people in the states that allow 16 year olds to marry(with some restriction/permissions) support pedophiles, and the states that allow first cousins to marry to support incest?

I had a kneejerk reaction myself on viewing it as despicable until i actually read the brief myself and noted that they only argued state laws which i think is very close to the core in this specific case.

I saw nothing about comparing gays to incest or pedophilia

[jberryhill]

55. I was surprised by that bit of misinformation as well

Apparently those states in which first cousin marriage is legal are now "incest states".

One can make all the accusations and moral posturing one wants, but states genuinely disagree on the subject of cousin marriage, and somehow the nation survives without a uniform national policy on the subject.

[kevinbgoode]

59. yes, but do the married cousins receive FEDERAL benefits?

and FEDERAL recognition of their marriage as long as it is legal in the state in which they reside? Please...someone...tell me this - after, this point is significant.

[LooseWilly]

67. Brilliant question... and one which the Google machine is not forthcoming with an answer.

From reading through the brief, however, I would guess yes. The citation of cousin marriage:

In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void").

And then the references to DOMA:

DOMA, however, merely preserves for each State the authority to follow its own law and policy with respect to same-sex marriage for purposes of State law. And it maintains the status quo of federal policy, preserving a longstanding federal policy of promoting traditional marriages, by clarifying that the terms "marriage" and "spouse", for purposes of federal law, refer to marriage between a man and a woman, and do not encompass relationships of any other kind within their ambit.

Thus, while DOMA does allow each state to define marriage however it pleases... and to not acknowledge marriages from other states that contradict their local statutes... the Feds seem to be willing to acknowledge any state's definition of marriage, as long as it's "between a man and a woman".

The Feds are fine with cousin marriages. They're fine with uncles married to their nieces. They're fine with married 16 year olds, 14 year olds, or even 6 year olds, as far as I can tell... as long as it's a man and a woman.

Hells... depending on how specific the definition of a "man" and a "woman" is... might be that I could marry a "woman" chicken... i.e. a hen, and if the State legalized it... the Feds would too- Right Now.

Just so long as it's not a same sex marriage.

Sorry, didn't mean to make such a longwinded answer...

[kevinbgoode]

69. Then this would be the point referred to in the brief. . .

where the DOJ points out that the plaintiffs are not suing for federal benefits? Or am I way off here?

Because it seems to me this is exactly where the Fed could get its butt kicked. There are thousands of legally married same-sex couples who are not receiving any federal recognition, though they are legally married in their home state.

And if those claims are based on nothing more than a federal "interest" in preserving "man-woman-ONLY marriage" then perhaps DOMA DOES, at least subtly, interfere with accepting a state's right to defining marriage in an unprecedented manner. I thought it was Obama (or his Administration) which claims the federal government shouldn't be in the marriage business.

I wonder why they didn't try to link denial of same-sex marriages to the polygamy cases when Utah was a territory - and the federal government's refusal to recognize those as "marriages."

It also makes me wonder too - if someone was legally married in one state (in a hetero relationship) and moved to another state where the marriage wasn't recognized, has the federal government ever stopped recognizing that marriage - or providing protection and benefits?

[jberryhill]

70. I agree that the weakest part of DOMA is not providing federal recognition

It has long been the case that the federal government is not in the marriage business, and that marriage is entirely a creature of state law (with the notable exception of the issues attendant to Utah statehood).

The federal government is on exceptionally weak ground in not recognizing a duly sanctioned marriage under state law, particularly when several states recognize that type of marriage. It's not at all like Utah, which was a particularly unusual territory at the time of its statehood.

[Baikonour]

56. Wait 'til Monday. n/t