From the San Francisco Chronicle:
Washington — The House voted Thursday to strip federal courts of jurisdiction over the 1996 Defense of Marriage Act — an unprecedented incursion into judicial terrain — as Republican leaders continued their drive against same- sex marriages despite the recent failure in the Senate of a constitutional amendment to ban them. […]
The bill would prevent federal courts — including the U.S. Supreme Court — from considering challenges to the 1996 law that permits states to refuse to recognize same-sex marriages from other states.
No companion measure has been introduced in the Senate, and it’s unlikely that one would be taken up this year before Congress adjourns. Democrats accused Republicans of trying to keep the same-sex marriage issue alive for the election.
Some initial thoughts:
- Since the Republicans aren’t bothering to introduce a Senate version of this bill, it’s hard to believe that they’re serious about it. The Democrats are probably right to say that this has more to do with the upcoming election than with serious lawmaking.
- The fact that they’re proposing this law shows that the anti-SSM Republicans in congress who, just last week, were saying “there is no alternative to amending the US Constitution” were acting in bad faith. (The idea for this non-constitutional path to protecting DOMA from the courts has been kicking around among Republicans for months).
- If I narrowly consider only the SSM debate, I wish that this bill would become a law. It would take the “federal courts are going to force Tennessee to recognize Massachusetts gay marriages!” argument off the table, which I think would take a lot of wind out of the national anti-SSM campaign. Meanwhile, SSM advocates would remain free to pursue SSM through elected officials and through equal rights lawsuits.
- Even if this bill becomes law, I don’t think it would slow down the progress of SSM rights. I’ve been convinced that the Full Faith and Credit Clause of the constitution would not, in practice, require any state to recognize another state’s same-sex marriages. (Gabriel Rosenberg has the full scoop on this).
- I don’t think this bill has any realistic chance of passing both the Senate and House. Even if it did, the Supreme Court might find a way to overturn it. So there’s not much chance it’ll become law.
- So it’s unlikely. But if this bill defied the odds and became law, I’d be frightened of the precedent. What would prevent Congress from using this law to shield all sorts of discrimination – against gays, and also against Jews, Christians, the disabled, women, minorities, and anyone else they take a dislike to – from court scrutiny? If Congress can shield its laws from court oversight, then it’s good-bye separation of powers.
UPDATE: Added item 5. Also, Trey, Kevin Drum and Andrew Sullivan have more on this..
More generally, if Congress begins shielding its laws from court oversight, then it’s good-bye balance of powers.
Which is why they introduced the law, knowing full well it would never be passed, signed, and survive a challenge to the Supreme Court.
Yeah, all this would be is a speedbump to overturning DOMA–first overturn this clearly unconstitutional law, and then overturn DOMA.
Regulation of marriage is and always will be the fundamental province of the States. The DOMA only states that one state does not have to recognize marriages in another state. For instance, if a person is married by common law to a minor in Missouri — absent State law, Virginia does not have to recognize that marriage unless Congress says so. Art. IV Sec. 1 Cl. 1 and 2.
This law only ensures the states retain their sovereignty in relation to the regulation of marriage. Which is correct. As stated in the Beihl (sp?) case in 1996 the States are in a better position to determine the will of their own citizens than the Federal government. Anything else would be an unconstitutional encroachment on State’s rights.
on the other hand, the federal constitution defines a citizen of the united states and declares that all citizens have the right to equal protection under the law. 14th amendment. letting some consenting adults marry but not letting others do so is a clear violation of the 14th. it’s also a violation of the 1st because anti-gay prejudice occurs primarily for religious reasons, and there is no compelling secular reason to prohibit gay marriage.
The states are also in a better position than the federal government to determine the will of their own citizens about whether blacks should be able to sit in the front of the city bus, but the federal government rightly encroached on states’ rights on this topic.
More generally, the full-faith-and-credit clause requires states to treat the acts of their sister states with a certain respect. If State A defines Bob and Sam to be lawfully married then State B can’t deem them not to be married if to do so would implicate a fundamental interest of State A. (I’m grossly oversimplifying the principle.)
“Letting some consenting adults marry but not others” isn’t enough of an analysis. Some states let first cousins marry, others let first cousins marry only if the woman is past the years of childbearing, and others don’t let first cousins marry at all. Any single adult of legal capacity can marry someone. The question is whether the state has a legitimate interest in having single adults marry only persons of the other gender.
As classes of race, sex, and religion are protected classes under federal constitutional law, but classes of sexual preference are not, I don’t think it works to say that Bob (gay) is being discriminated against because he can’t marry the man of his dreams but his brother John (straight) can marry the woman of his dreams. But it might work to say that Bob (still gay) is being discriminated against because he can’t marry Mark, but Susan, Joan, Helen, and Ethel can. That is, he and all other men can’t marry Mark because of their sex (not their preference), but any woman can — pure sex discrimination, not sexual preference discrimination. I don’t see the current Supreme Court as likely to make sexual preference into a protected class.
You are all wrong, if any of you had read the entirity of article 3, section 2 (the conveniently leave out the fact that this is only PART of one of three clauses in that section of article 3) you’d know this is all Bs.
This is what they want you to think article three , section 2, clause 2 says:
“….In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
See that? clearly that gives congress the right to exclude some, but not all, matters from court jurisdiction. But what do those elipses mean? Well let’s put down the ENTIRE article 3, section 2 CLAUSE 2. This is what that states:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Congress can not excersize this right at any point where “A STATE” (not THE STATE, it does not mean the federal government) is a party in a case.
Congress only has this right “In all other cases before mentioned”, those mentioned in Article 3, Section 2 Clause 1. This is where ti gets messy.
Article 3, Section 2, Clause 1 does state that they can exempt citizens of other states from suing a state, but this seems to have ben rendered void by the XIth ammendment. (the same one that makes DOMA unconstitutional)
So no, this might fool the public, but the Supreme Court is going to notice that they are using a power in a way that a constitutional ammendment says they are not allowed to, and in a way that can never exempt a state from being sued by it’s own citizens. I’m so glad I just spent three hours researching this.
oh, it was only 2, I actually do feel better now.
As classes of race, sex, and religion are protected classes under federal constitutional law, but classes of sexual preference are no
Which is why the issue is same-sex marriage, not “gay marriage.” Laws prohibiting same-sex marriage are facially discriminatory on the basis of sex.
J, as I’ve said elsewhere, if “full faith and credit” means California has to recognize the marriage of fifteen-year-old to a fifty-year old legally undertaken in Utah, I think states allowing child brides can suck it up when Massachusetts or California lesbians who got married move into their state.
Congress can exclude most cases from the appellate jurisdiction of the Supreme Court (keep in mind that at the time, there were no intermediate federal appellate courts), but it can’t exclude federal-question cases from the jurisdiction of the United States District Courts, the trial-level courts.
This legislation is insane. If the Senate ever did pass it, the _best_ outcome they could hope for would be for it to be struck down by the Supreme Court. If it was upheld, it would be a disastrous for them. What’s to stop the Democrats, when they next hold Congress, from using the same mechanism to exempt their own legislation from challenges?
I erroneously (sp?) attributed the unconstitutionality of DOMA to the XI ammednment. It is due to the Full Faith and Credit Clause of Article IV, Section 1.
As classes of race, sex, and religion are protected classes under federal constitutional law, but classes of sexual preference are not, I don’t think it works to say that Bob (gay) is being discriminated against because he can’t marry the man of his dreams but his brother John (straight) can marry the woman of his dreams. But it might work to say that Bob (still gay) is being discriminated against because he can’t marry Mark, but Susan, Joan, Helen, and Ethel can. That is, he and all other men can’t marry Mark because of their sex (not their preference), but any woman can — pure sex discrimination, not sexual preference discrimination. I don’t see the current Supreme Court as likely to make sexual preference into a protected class.
I doubt that a sex discrimination argument would work, because the same-sex marriage ban applies to both sexes equally.
A sexual orientation discrimination argument is more likely to work because a same-sex marriage ban clearly burdens homosexuals more than heterosexuals. Homosexuals do not need the status of protected class for laws that discriminate against them to be held an unconstitutional violation of the 14th Amendment, as Colorado’s Amendment 2 was held to be unconstitutional in Romer v. Evans. All that is necessary is for the law to fail the rational basis test. If the court were to find that a ban on same-sex marriage fails that test, then it would be likely to rule the ban unconstitutional.
I read Romer v. Evans to stand for a narrower proposition, which is that the State of Colorado is not required to treat gays as a protected class, but the state has no legitimate public purpose for preventing its cities and counties from treating gays as a protected class. That is, the state can prohibit discrimination against gays (without granting special rights), or it can remain silent on the subject, but it can’t stop other governments from prohibiting discrimination.
I read Romer v. Evans to stand for a narrower proposition, which is that the State of Colorado is not required to treat gays as a protected class, but the state has no legitimate public purpose for preventing its cities and counties from treating gays as a protected class. That is, the state can prohibit discrimination against gays (without granting special rights), or it can remain silent on the subject, but it can’t stop other governments from prohibiting discrimination.
The opinion in Romer states that Amendment 2 discriminated against a class of persons defined by their sexual orientation and failed the rational basis test, and was therefore an unconstitutional deprivation of the equal protection of the law as guaranteed by the 14th Amendment. No finding of protected class status for homosexuals was necessary to support this ruling. It was sufficient that Amendment 2 failed the rational basis test for it to be held inconstitutional.
Thus, if the court were to find that a ban on same-sex marriage also discriminated against a class of persons defined by their sexual orientation, and also failed the rational basis test, it would likely rule that such a ban was also unconstitutional.
This seems far more likely that a finding of unconstitutionality based on a claim of sex discrimination, because a same-sex marriage ban would most likely to be held to burden both sexes equally.
The “burdens both equally” argument was unequivocally rejected in Loving. The fact is that the law makes a sex-based distinction on its face. “But we’re sexist to EVERYONE!” doesn’t matter; the making of a distinction based on a protected category is enough.
(In Loving, the State of Virginia argued that since nobody got to marry interracially, the law was OK. SCOTUS rightfully rejected the argument, noting that the problem was that the law categorized people by race.)
“Rational basis” is an extremely easy test to meet. A blanket prohibition against all laws, as in Romer, didn’t meet that test, but a law banning same-sex marriage probably would.
mythago:
The “burdens both equally” argument was unequivocally rejected in Loving. The fact is that the law makes a sex-based distinction on its face.
Yes, the court rejected the argument in Loving, but that was because it found that bans on interracial marriage, although formally neutral with respect to race, had the purpose and effect of oppressing racial minorities. It is hard to see how the court could plausibly make an equivalent finding with respect to bans on same-sex marriage. Is the purpose and effect of bans on same-sex marriage to oppress women (or men) as a class? Good luck making that argument.
“Rational basis” is an extremely easy test to meet. A blanket prohibition against all laws, as in Romer, didn’t meet that test, but a law banning same-sex marriage probably would.
Well, we don’t know, do we, because the court has never addressed the claim. And Amendment 2 wasn’t “a blanket prohibition against all laws.” Colorado advanced various supposedly rational reasons for the law, but the court rejected them as pretexts for the true motive of simple animus against homosexuals as a class. We don’t know whether the court would make a similar finding with respect to bans on same-sex marriage, but that’s surely more likely than a successful sex discrimination claim.
mythago:
“But we’re sexist to EVERYONE!” doesn’t matter; the making of a distinction based on a protected category is enough.
No it isn’t. If your claim above were true then all affirmative action by the government based on race or sex would be unconstitutional, but the court has consistently upheld the constitutionality of racial and gender preferences. The mere fact that a law treats people differently on the basis of their race or sex does not in itself render the law unconstitutional.
The mere fact that a law treats people differently on the basis of their race or sex does not in itself render the law unconstitutional.
The law is unconstitutional UNLESS there is a compelling state interest that makes the distinction OK. That’s why affirmative-action laws have been upheld. It’s in two parts:
1. Plaintiff shows the law makes a prohibited distinction (race, gender, alienage, etc.)
2. Defendants shows that even though the law makes that distinction, it is OK because the State has an interest overriding the no-no of making such distinctions.
How strong the interest in #2 must be depends on the distinction. The highest, ‘strict scrutiny’, is for things like race. Gender is more of an ‘intermediate scrutiny.’ Outside of the handful of protected categories, everything else–such as sexual orientation–need only meet a ‘rational basis’ test.
My point was not that once you show sex discrimination, that’s the end of the discussion. It’s that if you are drawing categories based on gender, you can’t claim everybody gets the same oppression and it’s therefore OK.
Baehr v. Lewin, a.k.a. the “Hawaii marriage case,” is a good overview of why sex-based discrimination–which marriage laws blatantly are–is a more sound approach than claiming discrimination based on sexual orientation. I don’t believe that the Supreme Court is ever going to rule on state marriage law if not forced–but state Supreme Courts, especially in States which have an ERA or precendent for an ERA in their State laws, are a better shot.
Pingback: Daddy, Papa & Me
Pingback: Daddy, Papa & Me
Pingback: Daddy, Papa & Me
Pingback: Alas, a Blog