MA Judge rules DOMA is unconstitutional [MERGED]

[construct]

Re: MA Judge rules DOMA is unconstitutional

wait wait wait.....

If the Obama admin does not challenge the ruling on behalf of the gov't then stands and can be used in other lawsuits as case law?

that is rather intriguing if it is the case.

If the federal government does not appeal the case, the ruling will be effective only within this District Court's jurisdiction. Other district courts can reach their own opinions without regard to this opinion.

 

[hotatlboi]

Re: MA Judge rules DOMA is unconstitutional

Why do you say that?

Because the case was decided on tenth amendment grounds. One of the principle positions of many conservatives is that states rights have taken a back seat to the federal government and that they've essentially ignored the tenth amendment on a lot of issues.

 

[rareboy]

Re: MA Judge rules DOMA is unconstitutional

Other district courts can reach their own opinions without regard to this opinion.

Doesn't the question eventually become the weight of case law though?

If more and more judges were to take the same stance, surely that has to eventually influence the tide of decisions in the country?

It certainly was the way it happened in Canada.

 

[construct]

Re: MA Judge rules DOMA is unconstitutional

Because the case was decided on tenth amendment grounds. One of the principle positions of many conservatives is that states rights have taken a back seat to the federal government and that they've essentially ignored the tenth amendment on a lot of issues.

That may well be true. Nevertheless, one needs to consider that there are two parts to DOMA. One is the federal definition of marriage. That part was struck down because it violated the Fifth Amendment. Gill v. Office of Personnel Management framed the issue as whether the federal government could discriminate between same-sex couples whose marriages were valid under state law from opposite-sex couples whose marriages were valid under state law. The Court said the federal government could not do so because it would violate the equal protection aspect of the due process clause of the Fifth Amendment.

This part of the case reverts federal law back to what it was before DOMA was passed. It also sets up the basis for a challenge to state laws because the same reasoning would apply to those laws under the equal protection clause of the Fourteenth Amendment.

Perry v. Schwarzenegger would serve as a complement to it. Perry is mainly about the second part of DOMA related to the rights of states to discriminate on the basis of sexual orientation.

I think it would be good for both cases to proceed.

 

[construct]

Re: MA Judge rules DOMA is unconstitutional

Doesn't the question eventually become the weight of case law though?

If more and more judges were to take the same stance, surely that has to eventually influence the tide of decisions in the country?

It certainly was the way it happened in Canada.

In the U.S., decisions from other jurisdictions have persuasive authority which is not mandatory. Mandatory authority is exercised by courts of appeal upon the district courts within their jurisdiction. So, should the case be upheld by the Court of Appeals for the First Circuit, it would require the federal government to recognize same-sex marriages in Massachusetts, New Hampshire, Maine, and Rhode Island. A win at the Supreme Court would apply nationwide.

 

[construct]

Re: MA Judge rules DOMA is unconstitutional

I have read only Gill v. Office of Personnel Management. I'll look for the other one after dinner. If anyone has a link to it PM it to me.

 

[NickCole]

Re: MA Judge rules DOMA is unconstitutional

Our fierce advocate President Obama is going to have to make a choice -- have his DOJ defend DOMA in court (using the "I have to" defense), or decline to defend.

Obama US Attorney expected to stand behind federal gay marriage ban, plaintiffs say

The gay rights law group that convinced a federal district court judge Thursday to strike down a federal ban on gay marriage has told the New York Times they "fully expect" the Justice Department to appeal the decision -- a move that could shatter Obama's image in the gay community and cost his party millions of dollars in donations from gay donors. ...

http://rawstory.com/rs/2010/0709/obama-attorney-expected-stand-federal-gay-marriage-ban-lawyers/

That's so cute. "Shatter Obama's image in the gay community." As if.

 

[hotatlboi]

Re: MA Judge rules DOMA is unconstitutional

I believe the AG is basically required to appeal it. If the US doesn't defend its' statutes then basically the message that sends is that the administration can simply choose which laws it wants to follow.

If they had a choice in the matter, then obviously I'd like to see them say this is simply a bad law. But allowing that kind of a choice could work both ways. If Congress eventually passes a domestic partnership bill and then some conservative judge declares it invalid, a Republican administration could just decline to defend that.

 

[NickCole]

Re: MA Judge rules DOMA is unconstitutional

I believe the AG is basically required to appeal it. If the US doesn't defend its' statutes then basically the message that sends is that the administration can simply choose which laws it wants to follow.

Either DOJ is required to appeal or it is not.

"Basically" is meaningless in that sentence.



Guess what the answer is.

 

[hotatlboi]

Re: MA Judge rules DOMA is unconstitutional

Either DOJ is required to appeal or it is not.

They are expected to appeal, because it's expected that the US will defend it's laws. Technically they could choose not too, but that would be setting a dangerous precedent as I mentioned.

 

[construct]

Re: MA Judge rules DOMA is unconstitutional

Nick is right to the extent that the U.S. doesn't have to defend its laws. The U.S. could let this ruling stand.

I hope they appeal.

 

[hotatlboi]

Re: MA Judge rules DOMA is unconstitutional

Nick is right to the extent that the U.S. doesn't have to defend its laws. The U.S. could let this ruling stand.

I hope they appeal.

sure its within their power to choose not to defend it. Are you aware of any recent examples of this ever happening though?

But that's interesting. I think ultimately, if there's a chance it could be upheld they should appeal to get a ruling that would hold up nationally, I'm not so sure if that is a realistic outcome though.

 

[rareboy]

So, should the case be upheld by the Court of Appeals for the First Circuit, it would require the federal government to recognize same-sex marriages in Massachusetts, New Hampshire, Maine, and Rhode Island. A win at the Supreme Court would apply nationwide.

But wouldn't it be better to have the arguments used in other jurisdictions to gradually isolate those states that are against the recognition of gay marriage? Once it effectively becomes the law of the land by accretion of decisions, the last bastions against recognizing same sex marriage would have to fall, without the risk of the conservative Supreme court bench ruling that may destroy the possibility of recognition forever?

 

[hotatlboi]

without the risk of the conservative Supreme court bench ruling that may destroy the possibility of recognition forever?

A negative ruling by the SC wouldn't "destroy the possibility of recognition forever". Essentially what that would mean is the SC would find that DOMA was not unconstitutional so it would remain law. However Congress could still choose to repeal it and give recognition to people in states that have legalized gay marriage.

 

[construct]

Re: MA Judge rules DOMA is unconstitutional

sure its within their power to choose not to defend it. Are you aware of any recent examples of this ever happening though?

But that's interesting. I think ultimately, if there's a chance it could be upheld they should appeal to get a ruling that would hold up nationally, I'm not so sure that is a realistic outcome.

Failure to defend was discussed here during the uproar over the Smelt case. There were a few examples that arose then, but I don't remember what they were. You're right though that it is an unusual occurrence.

I think there's a chance it could be upheld. This is a GLAD case after all. They're pretty sharp about legal strategy. It's no more risky than the Perry case. I say that the administration would be doing us a favor by appealing it. It might cost them some gay votes from those less legally astute, but it's really to our advantage if they appeal.

 

[construct]

But wouldn't it be better to have the arguments used in other jurisdictions to gradually isolate those states that are against the recognition of gay marriage? Once it effectively becomes the law of the land by accretion of decisions, the last bastions against recognizing same sex marriage would have to fall, without the risk of the conservative Supreme court bench ruling that may destroy the possibility of recognition forever?

There aren't many states left that have a mini-DOMA and no state constitutional amendment. The next step is federal cases. That's what we're doing with these cases. In order for them to advance, the losing party has to appeal. The U.S. lost in the district court. In order for it to move up, the U.S. has to appeal. That's what we need.

 

[rareboy]

However Congress could still choose to repeal it and give recognition to people in states that have legalized gay marriage.

Pigs will fly before Congress ever overturns it, I fear.

With the US congress and senate is so paralyzed for years now, the repeal of DOMA is never going to happen.

 

[NickCole]

There aren't many states left that have a mini-DOMA and no state constitutional amendment. The next step is federal cases. That's what we're doing with these cases. In order for them to advance, the losing party has to appeal. The U.S. lost in the district court. In order for it to move up, the U.S. has to appeal. That's what we need.

We don't need our fierce advocates arguing in defense of laws that discriminate against us.

The Justice Department could accept Tauro’s decision as constitutionally sound and appropriate.

And should a fierce advocate for gay rights remain silent in response to this decision? Or respond as Representative Tammy Baldwin has:

"I am thrilled by Judge Tauro's decision that declares part of the Defense of Marriage Act (DOMA) unconstitutional. This is a tremendous victory for all who believe in equal rights and a dramatic confirmation of justice under law.

By ruling that DOMA violates the Fifth and Tenth Amendments of the U.S. Constitution, Judge Tauro affirmed states' rights of sovereignty and individual rights to due process. Put simply, his rulings confirm what we already know - there is no legal basis for discrimination against same-sex couples.

The right of same-sex couples to marry with the same protections, benefits, and obligations as straight couples may, ultimately, be decided by the Supreme Court. The long march to full equality is not yet over, but now is a time to rejoice in this victory."

http://wispolitics.com/index.iml?Article=202551

 

[rareboy]

^ I would think that one must agree.

I believe that the Supreme Court is not the only way to get to full equality under the law throughout the country.

From where I sit, I wouldn't trust that the bench wouldn't deliver a crippling blow to the advancement of gay marriage across the country and not the great victory that the homo-activists believe is inevitable.

It would seem to be more advantageous to have this ruling inform those in other jurisdictions so that there is a groundswell for a positive federal outcome.

 

[NickCole]

You know Obama's enemies are saying the Justice Deparment deliberatly put up a weak defense.

Yes I know.

What's your point?

Are you in agreement with Obama's enemies?