Capitol Hill Blue Forums Life and Moral Issues Morality & Society We Shall Overcome Redux

When the Ninth Circuit rules, its ruling will be "binding authority" in the Ninth Circuit. The ruling will be "persuasive (but not binding) authority" elsewhere. Any court, regardless of whether it's in the 9th Circuit, could certainly choose not to follow this decision if presented with a statute from another jurisdiction which could be distinguished from Prop 8. I suppose that, if argued in some other jurisdiction, another state may be able to convince a court that it's statute has a secular purpose which is rationally related to that state's interest.

This issue is far from decided.

Now that same-sex marriage is legal in California and five other states, would these marriages be recognized in other states? And also would these same-sex spouses now qualify for federal benefits, like social security, etc.?

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(Canada permits gay marriage)

There is nothing wrong with the picture: it's quite accurate. What's wrong is the archaic constitutional structure of the United States.

Good questions, Scout. The full faith and credit clause of the Constitution is interpreted that each state must honor the laws of sister states except when that state has a fundamental interest that conflicts with the law of the other state. Some states are claiming such a right to not honor marriages conducted in other states when it comes to gay marriage. Many states tried that with regard to interracial marriage bans years ago and were struck down.

As for federal benefits, they are prohibited by DOMA (Defense of Marriage Act) passed when gay marriage first became a possibility as a cheap way to avoid a Constitutional Amendment. It prohibits any federal benefit being given to gay relationships of any kind, whatever they may be called.

A federal judge in Massachusetts declared DOMA unconstitutional this year because it interferes with the state's right to regulate marriage. Decision

It is estimated that DOMA costs gay couples over $450,000 over their lifetime. New York Times

The ruling in the California case combined with the Massachusetts ruling would appear to point a death blow to the campaign against gay marriage.

Despite NWP's doubts, I still predict victory in the SCOTUS and will go out on a limb and predict a 6-3 vote.

Hell, we don't need no stinkin' 14th Amendment...why would we need the Full Faith and Credit Clause. Since our Founders actually included language in the Constitution that they obviously didn't intend on writing and which obviously conflicts with what God wants, we simply should amend the Constitution so that it accurately reflects both the Founders' intent and what God wants.

It's that easy, folks.

Chuck, Phil and NWP~So in accordance of allowing states to have same-sex marriage, do you see DOMA being struck down as well? And then married same-sex couples will have access to federal benefits? How soon?

DOMA would fall if the SCOTUS upholds the Prop 8 decision because DOMA is based on the same flawed logic as prop 8.

Would there need to be a challenge to DOMA by someone(like with Prop. 8), or would DOMA automatically be struck down by a SCOTUS Decision to uphold Prop. 8?

The Massachusetts case might do it, Scout. The ideal combo is that the Court approves the California ruling and the Massachusetts ruling which would, while not directly completely invalidating DOMA, would do so for every state in which any form of marriage, domestic partnership, etc exists.

I'm with Phil on the last point (I actually typed "pint," and I liked that sentiment, too....). One of the issues that has always irked me about DoMA (other than that it is absolutely an abuse of the English Language), is that it violates the basic tenet of the Constitution's full faith and credit clause by presumptively giving States an "opt out" of complying with the clause. Some States, like New York, have decided that they will honor marriages in other States where same-sex marriage is legal.

From a legal standpoint, Judge Walker's rationale is unassailable. Every principled jurist who has addressed the issue has come to the same conclusion - a) marriage is a fundamental personal interest/right; b) denial of a right requires a both a rational basis and a compelling State interest; = c) denying same-gender couples the right to marriage is neither rational nor based upon a compelling State interest (and probably a prohibited basis: i.e., establishment of religion). Other than activist Moralistas, like Justice Scalia (see Lawrence v. Texas, above), and religious zealots, there is no real legal argument against same-gender marriage.

My hope is that the tide will cause President Obama to rethink his unsupportable position on the point.