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Welcome to the end of a very weird week for news, one in which we found ourselves saying some of the same things as Ann Coulter and saw the 10th Amendment used for something besides poisoning a progressive cause.
The big Massachusetts ruling for marriage equality yesterday is not just blockbuster, but odd. U.S. District Judge Joseph Tauro declared the anti-gay Defense of Marriage Act unconstitutional in two ways. First, Tauro said it violated the principle of equal protection, which is usually found in the Fourteenth Amendment but which Tauro argued from the Fifth Amendment. Second, Tauro argued that the federal government had overstepped its bounds in telling Massachusetts which couples it could consider married. That's a violation of the Tenth Amendment, he wrote, drawing on the favored constitutional provision of states'-rights conservatives.
But here's the thing: states' rights cut both ways. Massachusetts Attorney General Martha Coakley released a statement that it's "unconstitutional for the federal government to decide who is married." In this case, that concept helped the same-sex couples in her state, where marriage is legal. The concept threatens to lock gay couples in states that ban gay marriage into being second-class citizens forever.
A lot of people get mad when you compare the struggle for civil rights for sexual minorities with the struggle for civil rights for racial minorities. There are of course key, substantial differences between the two. But with regard to the legal question of whether we need a state-by-state remedy or a federal one, the comparison is clear. Gay couples living in Massachusetts have a very different set of rights from those in Mississippi. Should the federal government ultimately allow that gap in equality to persist?
Here's Coakley wrestling with the federal question on the show last night:
Keep in mind, this has to do solely with what Massachusetts has done, which is extend civil rights, as we believe it should be. We hope this leads to the extension of civil rights throughout the country. We don't think it will cause the shrinking of them. . . . What we said is that Congress cannot not, by a statute, change what Massachusetts has done. The reverse isn't true. It doesn't mean that it will affect other states right now, one way or the other. It just says that Congress cannot pass a law that the judge has found no basis but [for] you to discriminate.
We're talking about civil rights and what Massachusetts has done. We think it's a good effect for Massachusetts, and we hope it will condition the discussion for civil rights across the country.
UPDATE: And here's Andrew Sullivan, on his blog:
The Obama administration, meanwhile, now has to decide whether it will further defend DOMA in the courts, fighting against the principles of the tenth amendment so dear to conservatives or the fifth amendment so dear to liberals. The incoherence of the Republicans and the cowardice of the Democrats are now exposed more than ever.
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It paralells miscengination laws which said that people could not marry outside their race which was law of the land about fifty or sixty years ago. I don't know anything about law, but I have to wonder whether or not DOMA had ever been attacked on just those grounds before. Can anyone tell me?
I'm sure it has, but laws regarding "race" and other suspect classes implicate strict scrutiny of the law. DOMA does not, therefore it was easily dismissed... the rationale in Toro's opinion treats homosexuality as an ad hoc "race" or "ethnicity"... and that is idiotic. Equal protection objections to DOMA seemed (to me) as vaporware... as would equal protection to "red headed people"...
Be because people have died violently from "red head bashing." Have had their hmes and property vandalized, been told who they could and could not marry, have been discriminated against from every quarter, have been the target of every redneck...have been called a threat worse than terrorism. And I know the last because it was a politician in my state who said that.
Yeah, life is rough for people with red hair.
People have "died" from all sorts of bashing... "nerd bashing"... "political bashing"... "having-cool-shoes bashing"... look at all these new "protected classes" we can have!
And why not? Is it your desire to reserve certain types of person you can feel free to persecute?
I have to wonder what exactly it is that you are objecting to, and what it is you think you are objecting to.
Ah, Rusty, you know there needs to be an pattern, right? We're talking about systemic discrimination, not simply person A dislikes person B.
Hate crimes related to sexual orientation are about the same as religion.
http://www.fbi.gov/page2/nov09/hatecrimes_112309.html
I have been a Meet the Press junkie since attending undergraduate school, a little over two decades ago. I became a viewer of the Rachel Maddow Show, a program I had never heard of before a few months ago, when I heard she was having some better coverage of the oil spill we have down here. I was pleasantly surprised to see Rachel on Meet the Press this morning. She has grown in my admiration. I have always had great respect for anyone who can hold their own, on Meet the Press. I was horribly let down in one respect. Of all the important issues covered by Meet the Press, at least as important, but far more important to someone like myself, is the recent legal victory in Massachusetts for gay marriage. As a lesbian, I dreamed since childhood of growing up, and marrying the girl of my dreams. How could you have an openly gay political pundit, like Rachel Maddow, on Meet the Press, and not discuss a constitutional victory for gay marriage!
I also posted this on the Meet the Press site. I am hoping Rachel considers doing a segment on the issue herself. Our stories should not be ignored.
On the 10th Amendment locking gay people out in states that do not allow same-sex marriage ... somewhere in the Constitution (I think) there's the stipulation that each state must respect the laws of other states in these matters. That is, a man and a woman married or divorcved in Nevada must be considered married or divorced in every other state. In the absence of DOMA, wouldn't that then also apply to same-sex couples? Still not ideal, but surely a way for gay couples to live where they want to as legally married people, if they can afford the trip to the states that allow non-residents to marry. In the absence of DOMA, states could refuse to marry gays, but they couldn't refuse to accept otherwise legally married people. Right? Or not?
The big gain for me in this, if DOMA falls, is that it would be another step toward allowing me to live in the US with my foreign husband. Hell, I'd even move to Iowa for that.
Excellent point. Yeah, it involves giving up everything you know in your present life...but if the state you are living in institutes its own DOMA laws , you can always vote with your feet and move to a more congenial state. If states are smart, they will actively advertise their support of same sex marriage laws. Swell their population with DOMA refugees and create a boom for wedding related businesses. If you don't like the laws of where you live, look around for better options and vote with your feet. If Tea Party candidate Randy Brogdon gets elected Govenor here in Oklahoma, me and my wife will be doing just just ourselves.
We also have a Tea Party candidate for governor, and I'm waiting for him to be lynched soon. Earlier this week, he proposed lowering the minimum wage for people who make tips as part of their pay. He claims that many waiters and waitresses make more than $100K per year! Now he is going to have a town hall meeting with those people. That may be the quickest way to end his campaign, if not his life!
It simply amazes me how much legal twisting and turning is being done by both sides over what is, at its heart, a religious issue. I have yet to hear a single opponent of gay marriage be able to come up with an actual cogent, logical reason for denying gays the right to marry. I'm sick of hearing lame excuses like, "It threatens the sanctity of marriage". How? If your marriage is so weak that a couple of guys or a couple of gals getting married will destroy it, then you can't have much of a marriage to start with. Don't come at me with the "thousands of other cultures over thousands of years have defined marriage as being between a man and a woman". True, but many cultures have and still do recognize marriage between a man and multiple women. Who's to say that they are wrong and we are right? In the end, it is a fight simply because fundamentalist christians believe it is wrong, based on the Bible, (although I have yet to hear the passages in the Bible that define marriage as solely between one man and one woman). Not even all christians oppose gay marriage...many openly support it. If just one splinter branch of christianity is given the power to set law in this land, aren't we looking at a shadow theocracy?
jb2, that's exactly why DOMA was such a big coup for the religious right. Once it goes down, gay marriages performed in places where it's legal will have to be recognized in places where it's not. Lawsuits galore, SCOTUS ruling, boom, done.
That's the Full Faith and Credit Clause in Article IV Section 1. It's been a major argument against DOMA.
it's been a bigger argument FOR "DOMA"
Well Rusty you go on out there and not marry all the men you want to. Clearly it doesn't involve you.
I think you've no clue who it involves...
There is also the matter of states interests
http://legal-dictionary.thefreedictionary.com/State+Interest
I am no lawyer, yet, but studied a few of the legal strategies used in previous gay marriage cases, constitutional, and the civil rights cases. I wish they had been able to use something other than the 10th amendment because it does imply the state, has this right, to define marriage. But, if at least one state defines marriage as inclusive of gays, and shows federal Doma is unconstitutional, there IS an implication that something is wrong with the Doma laws in other states, for the simple reason that there are thousands of residents in those states, who define marriage differently than the state does. If federal Doma falls, then the federal government would be morally obligated to look at the fact that those citizens, who are also federal citizens, in those states, are having their rights denied. There is an opening, for the legal prybar. It will be harder because they used the 10th amendment, but I think it not only worked easier for the Massachusetts case, but also is strategic for the simple reason that the Supreme Court now, and will be for some time, chock full of conservative appointees. It will be a little harder for them to say the 10th amendment cannot be used in the same way they use it for their causes. Not that they won't try, they'll just look criminal if they do, like the judges primed with oil stock, who just overturned the ban on drilling.
You are right MechTrek, furthermore, it will hopefully be like it was when slavery was legal in some states, and not in others. All sorts of legal and moral issues arose when slaves were moved through states where it wasn't legal, or free African-Americans ended up enslaved, after having tried to pass through a slave state. Also, I think you are right jbm2, I think if federal Doma falls, they all might fall because of the state recognition law, if some other nasty law is not passed in that, or Doma's place, though I can't imagine what that would look like. So, go to Massachusetts, get married and move to a Doma law state, like mine, so we can bring your cases, most beautifully and wonderfully, to court!!!!
Try this on, then, Pensword... it's from the Constitution too...
That's from Article IV of the Constitution. I believe DOMA was a way to preserve the integrity of this Clause by not having a state like Massachusetts redefine what a state like Utah considers "marriage" (they've had marriage decisions of their own that seemed 'unconstitutional'.)
DOMA & Roe are bad federal law for the same reason. States issue & regulate marrage & medical licenses. >BOTH involve states rights; some will, some wont.
Rachel - PLEASE, Please, please, PLEASE go back to blogging on the Huffington Post (your post from a couple days ago was great, but the time between postings is WAY to long).
And....I'm sick and tired of TRMS Blog being infiltrated by a handful of sick/twisted/homophobic/posers...for god's sake, some of these poeple are even going so far as posing as gay poeple when they are not...ya'll, don't be fooled - hatenomor, pensword, Mr. Stinky Pigeon, Jonh (whateverhis name), etc.,etc., are either the same person (mental I know) or acting in junction)...GO BACK AND READ THE LAST WEEK TO TWO WEEKS OF POSTS IF YOU ARE NOT SURE OF THIS FACT...they are effing with the Blog site - and doing a fine job of it I might add. Blog moderator seems to not want to ban these posers, but I think I might know why. When these individuals post the comments count goes from 10 or so to 200-400 or so with 90-95% all on these posers who get people sucked in to varying degrees of hate filled commentary...makes the blog look successful is the only reason I can discern why these people are not banned (the Blog moderator is judged on how many people respond to he Blog maybe?).
Rachel - PLEASE, please, please go back to blogging on the Huffington Post (you also get 1,000's of comments when you do, and the wack jobs are drowned out and discouraged by the overwhelming audience respect for you and the lack of audience for their brand of sick.)....please....
I disagree that all of those people are the same person or acting in junction. I actually like an argument and disagreement, I just wish that people would stay away from name calling and stick to the facts.
I actually enjoy watching the haters (not the one user, haters as in poison spewers) arguments get filleted up over and over.
I don't like having to skim through 1,000's of pointless comments, and I love this blog due to the intelligence that the average poster conveys in their comments.
awww... does WBEng consider opposing positions to be "infiltration?" This seems to be contrary to Maddow's own policy of "spirited debate"... just to encourage reflection of your own position, understanding of the other, and real-honing of your own rhetorical skills.
WEBeng
I find it cruel and disheartening for you to say I am not a lesbian. When I have poured my heart out in these blogs. And expressed my longing to marry the girl of my dream, and disagreed vehemently with hatenomor. You could not have possibly EVER have read ALL my blogs, nor very probably even understood them.
Good grief, we are on the same side!
In fact WEBeng, one of the main features of my posts has been an effort to defuse hate from every side. Please read them again.
States are not obligated to honor each other's laws. There are reciprocity agreements between many states, but it's not universal. It entirely possible and legal for a state such as Oklahoma to outlaw gay marriage and specifically not honor Massachusetts's gay marriage laws.
The best outcome here is that the DOMA law falls. That would mean that the Federal government would be required to honor those marriages in Massachusetts like it honors all other marriages. However, winning this will not help in making gay marriage legal across the country.
The only way to secure that right is to extend Federal law in the same way the Civil Rights Act of 1964 extended equal protection to racial minority groups. This is the guiding law that prevents states from prohibiting inter-racial marriage since it prevents any law that discriminates based on color or ethnicity. Unfortunately, the only way to ensure universal gay marriage is for Congress to amend the Civil Rights Act of 1964 to include LGBT citizens in it's list of protected groups.
To get that done, we'll need a much stronger Democratic Congress. So, Red State citizens, get out there and vote for your local Progressive Democrat and help build up the numbers in Congress so there's a chance this inequality will change in our lifetimes. There are some real close races out there and moving enough supporters of gay rights to the polls just might swing those elections (Kentucky and Nevada, I'm talking to you). Reading about it and commenting online just isn't going to get it done.
Are you "sure" that "Full Faith & Credit" is how you 'represent' it... for that is what you are talking about (even if you have no clue yourself?)
There is the Tea Party Candidate for Oklahoma who wants to start a state funded anti federalist militia, who also says that BP should have gotten away with alot more than it did. If he gets elected, me and my wife are leaving. Oklahoma is already like some kind of weird retrograde time warped hell to begin with. The last thing it needs is some @sshole with a gallon of gas and a book of matches. I would love to see federal troops come in settle things down, but I don't want a ringside seat.
The Civil Rights Act had nothing to do with marriage. The law that prevents states from outlawing interracial marriage is the 14th Amendment.
The Civil Rights Act has to do with public services and employment. Anti-miscegenation laws were struck down 3 years after the Civil Rights Act.
Thank you. Have any paralell arguments been made supporting gay and lesbian marriage?
ummmm... okay.
To clarify I was referring to this:
It's just inaccurate. And it's important to be accurate and show that you actually understand the laws that affect other classes of people before getting into expanding them.
The Supreme Court absolutely can strike down state gay marriage bans under the 14 Amendment. Loving Vs. Virgina sets the precedence.
From the Loving Vs Virginia decision:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=388&invol=1
Does a state "have" to license a same-sex marriage? Must other states be required to honor that marriage? Unlike Loving, where the impact of the state law was over in its prohibition interracial marriage (race = protected class), DOMA does not involve protected classes. Relying on "Loving" as a precedent is flimsy jurisprudence in instances of same-sex marriage. Don't worry, the Supreme Court will settle this quite deftly.
DOMA does involve protected classes. Gay and transgender people were codified as a protected class at the federal level the moment sexual orientation and gender identity were added to the Hate Crimes Prevention Act.
The current Prop 8 trial which is to be decided very soon hinges on defining gays as a protected class, and we're probably going to win.
Plus, gay people are a protected class in, I believe 21 states...and transgender people in 12...in areas of employment.
The constitution is a living document because society is a living structure. Race, gender, religion are all social structures. And it's largely due to anti-gay folks creating laws directly targeting gay people that we can now say gay people are a class in need of protecting.
And also because gay people get kicked out of the military just for saying they're gay. That makes a class because it acknowledges that being gay is something one is rather than something one does. I mean, it doesn't make sense to say saying "I am gay." amounts to homosexual behavior unless it's accepted that homosexual behavior is more than sexual behavior.
So just what's your stake in this Rusty?
GrrrlRomeo... no, they were not. That would be a "big deal." Saying "I'm Gay" doesn't make a suspect class anymore than saying "I'm a terrorist." Whatever a state claims is a "suspect class", likewise, is irrelevant to this decision.
This is the last I'm going to say on the DADT argument because I get the sense you're going to make me chase my tail on what I actually just said there.
I did not say saying "I'm gay" makes a suspect class. I said that discharging people for saying "I'm gay" makes a suspect class. Gay people are clearly being discriminated against for who they are, not what they've done.
To repeat myself:
The whole purpose of the Hate Crimes Act is to acknowledge that certain classes of people have difficulty achieving justice at the local level due to systemic discrimination in local law enforcement. That law now includes sexual orientation and gender identity.
And:
For more info: http://en.wikipedia.org/wiki/Perry_v._Schwarzenegger
(It's a federal case)
I don't think so. Basically, while defining marriage laws has always fallen to the states (with the exception of DOMA), the Federal government can still strike down bans on certain groups by saying they are discriminatory and violate the Equal Pretection Clause of the 14th Amendment. Basically look at Loving v. Virginia to see how the state bans can be stricken down.
Did Loving v Virginia cause other states to rescind their misogynist laws?
Supreme Court ruled on 14th amendment, equal protection of the laws.
http://www.ameasite.org/loving.asp
<<<Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
These convictions must be reversed.
It is so ordered.>>>
Now they might argue over survival, etc. but it how does it harm states interests?
http://www.paralegaltraining.net/blog/10-supreme-court-cases-that-affect-you-every-day
scrolling down to #6, we see Supreme Court Loving v Virginia struck down state laws that prohibited interracial marriages. So, being marriage is a right of individual choice, according to SCOTUS, sticking down restrictive laws (I know, based on race, but still, it says there in the opinion man has a right to choose a spouse...) on marriage, a state realm.
The purpose of the court is to check the other two branches.
I am aware of the "originalist" view, but I find it to be irrational, being the Constitution says right in it, in order to FORM a more perfect union... to PROMOTE the justice..to secure the blessings of liberty to our POSTERITY
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
http://www.google.com/search?hl=en&client=safari&rls=en&defl=en&q=define:promote&sa=X&ei=BU47TIOkFpSksQOt84DbCg&ved=0CBIQkAE
http://www.google.com/search?hl=en&client=safari&rls=en&defl=en&q=define:posterity&sa=X&ei=IU07TK6SKJOWsgO56M3aCg&ved=0CBIQkAE