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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Sunday, March 13, 2011

Go for it (and good luck with that)

[I replied to an article on the House of Representatives deciding to defend DOMA with the below. The final paragraphs and footnote is added, though the footnote references a reply to my post as well.

One reply (who also wasn't aware of the public policy exception) cited a West Wing episode where the President settles a deadlock by nominating one conservative, one liberal justice, the former thinking DOMA violates the 10th Amendment. Unfortunately, President Bush didn't nominate a Judge Kozinski sort. The paucity of such moves, which cannot be said about Obama and Clinton, underline why I disliked the guy even above and beyond not liking his basic politics and personality.]

I'm all for them defending the law. President Obama continues to enforce it and the courts have to rule on the matter. So, it's useful to have two sides give it their best shot. When the executive, as was the case a few times recently, for some reason concedes, having someone else (at times by court appointment) do the job is common practice. So, go right ahead.

Not that the going is easy. From the article:
Conveniently, the report lists all four reasons for promulgating the DOMA: "defending and nurturing the institution of traditional, heterosexual marriage; defending traditional notions of morality; protecting state sovereignty and democratic self-governance; and preserving scarce government resources."
The law in this case (again, dealing with only the third section,* concerning federal benefits) does not advance the third and fourth reasons. It has been determined by an earlier congressional research service report that marriage provides a net fiscal benefit to the government, reflected by the so called "marriage penalty." As to state resources, the law burdens them, since in various cases the states have to handle more of the load when they recognize same sex marriages when no federal benefits are provided.

And, when the federal government selectively singles out certain types of marriages in this way, it burdens state sovereignty in that those states that recognize SSM are deprived equal respect under the scheme in question. That interest works more as to the second section, dealing with states not having to recognize out of state marriages, though they already didn't have to do that under the against public policy exception of the Full Faith and Credit Clause. The likely redundancy was even cited those behind the law. But, that isn't the issue at hand anyway. 

That leads defending "traditional" notions and such. Again, this is not about the federal government itself protecting the right to marry directly as in regard to D.C. or military families.  It regards benefits to states that already recognized them. Other traditional notions of morality aren't singled out here. For instance, first cousins, adopted and step-siblings or even other "incestuous" relations [such as uncle/niece, allowed under a religious exemption in some cases] are not covered. Nor, other "traditional" aspects of marriage that have not met the test of time like strict divorce laws. Only same sex relations that burden homosexuals in particular are targeted. 

This matter has been beaten to death so I won't go on, but the blatant nature of the specific matter at hand does continue to strike me. Singling out same sex couples married in other jurisdictions for denial of benefits is pretty amazing to me on some level. Even someone fairly conservative about the development at hand might understand that state experimentation, which includes not penalizing those states who have marriages some don't like, is a careful way to go. The fact one judge rested his opinion on the Tenth Amendment underlines the point.

The limited nature of the step is also recognized by those bringing these cases to court, even though they might deem the federal Prop 8 case as risky.   But, it often is not seen that way.  On some level, that's valid, since the underlining principle goes further than this one case.  Still, as shown by those who support civil unions but not marriage, others do honestly see logic to middle ground.  This along with the benefit of time makes it a good idea to respect the idea that this is actually a somewhat conservative approach.  To cite Justice Souter, who spoke on another subject but some believe had this one partially in mind:
Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

See also, the previous paragraphs of his opinion, including references to privacy rulings such as Lawrence v. Texas.  Thus, with some honesty, I welcome the defense here.  It hopefully will fail in the long run, but political cynical move or not (some strongly oppose SSM, but I doubt the Speaker of the House is one of them -- he doesn't come off as a moral warrior type), it is in the promotion of a good cause. 

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* To remind, the specific matter at hand:
Section 3. Definition of marriage.
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
This didn't stop D.C. to recognize same sex marriages though I think there might be a way to somehow stretch DOMA to apply there, since some act of Congress probably is involved.

Anyway, that would be a harder question in some ways, since it directly involves the federal government applying its own local "police powers." On the other hand, when the Second Amendment was at issue, the differences between states and federal territory (see the very wording of the Second Amendment and its accepted meaning as a federalism protection) was totally ignored by the Supreme Court in Heller.   Federalism concerns are somewhat selectively applied, even when the matter is specifically at issue.