Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
It would appear that the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA, has now lost at least six cases in a row — and spent about $1.5 million doing so.
As noted here, with the opinions in easy to accessible format, the Second Circuit struck down section three of DOMA in a 2-1 vote while also (the question open) holding intermediate scrutiny was warranted for sexual orientation. The 1CA used a sort of heightened rational basis review because of the animus involved and the federalist concerns (used by the 2CA, but to a much lesser degree), which might be called "rational basis with teeth." This might appeal to Kennedy, and I think it works, but the case against DOMA is even stronger using intermediate scrutiny:
In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
Both opinions were written by conservatives, the chief judge of the 2CA here however having a dissenter, a Clinton appointee who also provided a conservative stance in a "partial birth" abortion case. Judicial nomination wars still matter, but judges are not always knee-jerk. And, sometimes, constitutional principles are advanced by conservatives. The arguments against DOMA are by now standard, which might be why the ruling was handed down but a few weeks after oral argument.
The dissent noted it was bound by Baker v. Nelson. It is not. "Traditional" marriage was cited by the dissent. But, why are any number of other aspects of "traditional" marriage that went by the way-side not relevant? Coverture was part of that too. Or, no sex before marriage. Even miscegenation bans were quite "traditional." The selective use of the word "tradition" is of a piece of selectively burdening state sponsored same sex marriages, a product of bias and discrimination, a selective concern that might be accepted by good people, but still wrong.
The plaintiffs in these cases are rather sympathetic, though who can beat the Lovings? An eighty something year old widow who is burdened by hundreds of thousands of more taxes is surely up there. Let me end addressing something that confused someone on this thread, though perhaps (giving the sneering tone) the person just didn't care. Yes, the opinion referenced marriage being "a virtually exclusive province of the states," but this doesn't mean general constitutional limits do not apply. That was used (more so in the 1CA) to address the power of Congress here over marriage. The same could be said about intrastate commerce, local crime control or education. There still are limits, like ex post facto laws or equal protection. Federalism just makes DOMA that much worse.
Ever onward for equality & against this invidious legislation, at least this section of it.