How can DOMA possibly be defended against an equal-protection lawsuit?

[shira]

Five states plus D.C. are now issuing marriage licenses to same-sex couples. Yet the because of the Defense of Marriage Act, the federal governament specifically treats same-sex marriages differently from opposite-sex marriages. For example:

Under DOMA, married same-sex couples cannot choose to file their federal income taxes jointly - they must file separately, whereas married opposite-sex couples can file either way.

Under DOMA, a partner in a same-sex marriage cannot obtain federal social security benefits if their spouse dies, whereas married opposite-sex couples can obtain such benefits.

Under DOMA, there's no marital "privilege" for married, same-sex couples, and one of the spouses can be forced to testify against the other in a court of law if facing federal charges, whereas married opposite-sex couples cannot be forced to testify.

Under DOMA, the exemption for profit on the sale of a principle residence is only $250,000 for married same-sex couples, but is $500,000 for married opposite-sex couples.
Edit: I just realized that this example is not necessarily valid: If the home is owned jointly by the couple, then each can obtain a $250,000 exemption; but under some circumstances, the disparity holds.

The list is almost endless. The point is: These are LEGALLY MARRIED same-sex couples, which by federal law are treated differently from married opposite-sex couples. A clearer example of UNequal protection under the law is hard to imagine. How can that possibly be Constitutional?

 

[IronWing]

We'll find out when the Supremes chime in.

 

[Fear No Evil]

Let them marry and get fucked by the marriage penalty like the rest of us without kids.

 

[shira]

Let them marry and get fucked by the marriage penalty like the rest of us without kids.

So this sounds like you're agreeing that married same-sex couples are - under the Constitution - entitled to the same federal marital benefits and penalties as other married couples.

 

[MotF Bane]

We'll find out when the Supremes chime in.

The Supreme Court doesn't seem that helpful these days.

 

[rchiu]

If it's about equal "rights", why not just give all marriage benefit to all people, married or not. All people deserve the same rights correct?

 

[ProfJohn]

Five states plus D.C. are now issuing marriage licenses to same-sex couples. Yet the because of the Defense of Marriage Act, the federal governament specifically treats same-sex marriages differently from opposite-sex marriages.

Actually you are wrong.

The DOMA defines marriage as a legal union between one man and one woman, therefore any state definition of marriage (man & man) is null and void as far as the Feds are concerned.

Since Feds do not recognize a same sex marriage as an actual marriage you can't claim that they treat same sex marriage differently than opposite sex marriages.

It is a technicality, but it is a HUGE one and one that would have to be overcome before you could press forward with a court case. I believe you would have to get a court to rule that the DOMA definition of marriage is wrong first, then you could press forward with an equal protection claim.

 

[shira]

Actually you are wrong.

The DOMA defines marriage as a legal union between one man and one woman, therefore any state definition of marriage (man & man) is null and void as far as the Feds are concerned.

Since Feds do not recognize a same sex marriage as an actual marriage you can't claim that they treat same sex marriage differently than opposite sex marriages.

It is a technicality, but it is a HUGE one and one that would have to be overcome before you could press forward with a court case. I believe you would have to get a court to rule that the DOMA definition of marriage is wrong first, then you could press forward with an equal protection claim.

Well gee, if all Congress needs to do is provide a definition to get around pesky little Constitutional issues, then just imagine what mischief it could accomplish. For example, it can DEFINE a "person" to be a Caucasian or a male. Does that sound reasonable to you? Apparently so.

The problem is that, under the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since marriage has historically ALWAYS been controlled by the states, that "power" has clearly been delegated to the States. So Congress's "power" to "define" marriage simply does not exist, and DOMA is a grotesque abuse of its non-powers.

 

[Craig234]

Not many are aware that don't ask don't tell ha salready been greatly restricted/nullified by an appellate court decision covering 9 states- that the feds chose not to appeal.

 

[ProfJohn]

Well gee, if all Congress needs to do is provide a definition to get around pesky little Constitutional issues, then just imagine what mischief it could accomplish. For example, it can DEFINE a "person" to be a Caucasian or a male. Does that sound reasonable to you? Apparently so.

The problem is that, under the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Since marriage has historically ALWAYS been controlled by the states, that "power" has clearly been delegated to the States. So Congress's "power" to "define" marriage simply does not exist, and DOMA is a grotesque abuse of its non-powers.

You've lost your way.

Your thread is all about how the Feds treat same sex marriage couples differently than opposite sex couples. Yet, to prove your point you are relying on an amendment that deals with the delegation of power to the states. Yes, the states can do whatever they want with marriage, but they can not force the Federal government to honor their individual laws, it does not work that way.

What if a state legalized polygamy. Could the five wives of a dead man all demand survivor benefits from Social Security?? Using your logic the Feds could not deny them their claim otherwise they would be violating the 14th amendment by treating them differently than other married couples.


Finally, there is great irony in your bringing up the idea of congress trying to change the definition of something. You seem to forget that the whole same sex marriage controversy started with an attempt to redefine the term marriage to mean something different than what it has meant for thousands of years. Marriage has always been defined as a union between a man and a woman. The whole same sex marriage controversy started with an attempt to change that definition.

 

[theeedude]

I don't think polygamy comparison is valid. You can restrict marriage to one spouse without violating equal protection clause, but I don't think you can restrict the genders of spouses without doing so. If you restrict a person to having one spouse, whichever spouse he chooses will be treated equally under the law. If you restrict marriage to man and woman, then depending on gender of his chosen spouse, it will receive unequal protection from the federal government.

 

[ProfJohn]

I don't think polygamy comparison is valid. You can restrict marriage to one spouse without violating equal protection clause, but I don't think you can restrict the genders of spouses without doing so. If you restrict a person to having one spouse, whichever spouse he chooses will be treated equally under the law. If you restrict marriage to man and woman, then depending on gender of his chosen spouse, it will receive unequal protection from the federal government.

Why not??

The definition of marriage has always been a union between a man and a woman. If you can redefine it to mean a union between a man and man then why can't you redefine it to mean a union between a man and multiple women??

Once you decide it is okay to redefine the definition to one thing, then why can't you redefine it to another?

I realize this is a cheap rhetorical point, but it is a valid one.

 

[ElFenix]

Not many are aware that don't ask don't tell ha salready been greatly restricted/nullified by an appellate court decision covering 9 states- that the feds chose not to appeal.

as a technical matter, they can't appeal. they can petition for a writ of certiorari

 

[theeedude]

Why not??

The definition of marriage has always been a union between a man and a woman.

I don't remember there being definition of marriage in the Constitution, which is the governing document of the US. Equal protection IS in the Constitution.

If you can redefine it to mean a union between a man and man then why can't you redefine it to mean a union between a man and multiple women??

You cannot redefine it as a "union between man and man either." That would also violate equal protection, just as defining it as a union between man and a woman does.
You can set a limit of 2 people per marriage without violating equal protection clause, but once you define the genders of those people, you are violating it.

Once you decide it is okay to redefine the definition to one thing, then why can't you redefine it to another?
I realize this is a cheap rhetorical point, but it is a valid one.

You can redefine it to whatever does not violate the equal protection clause, sure.
Redefining it to be just between man and woman, which is what DOMA does, violates equal protection.

 

[ProfJohn]

Defining it as a union between a man and a woman does NOT violate equal protection. Because that IS the definition of a marriage as it has been accepted for thousands of years.

You seem confused. It is the gay marriage people who are trying to take a term and redefine its meaning. Marriage has always been accepted as a union between a man and a woman. The only way you can have gay marriage is to redefine the term marriage. And if you can redefine it one way then you can redefine it anyway you want.

The ONLY way you can use the equal protection cause to promote gay marriage is for you to first get the definition of marriage changed. Once you get the definition of marriage changed then you can run around and claim that the government is violating the 14th amendment.

 

[woolfe9999]

You've lost your way.

Your thread is all about how the Feds treat same sex marriage couples differently than opposite sex couples. Yet, to prove your point you are relying on an amendment that deals with the delegation of power to the states. Yes, the states can do whatever they want with marriage, but they can not force the Federal government to honor their individual laws, it does not work that way.

What if a state legalized polygamy. Could the five wives of a dead man all demand survivor benefits from Social Security?? Using your logic the Feds could not deny them their claim otherwise they would be violating the 14th amendment by treating them differently than other married couples.


Finally, there is great irony in your bringing up the idea of congress trying to change the definition of something. You seem to forget that the whole same sex marriage controversy started with an attempt to redefine the term marriage to mean something different than what it has meant for thousands of years. Marriage has always been defined as a union between a man and a woman. The whole same sex marriage controversy started with an attempt to change that definition.

While you're correct that Congress may define marriage differently than a given state does to the extent that "marriage" relates to federal benefits like SS, you are entirely wrong that there is no issue of equal protection because Congress has chosen to define it a certain way. Congress cannot define its way out of Consitutional limits, where the net effect of a statute violates those limits. A definition is a thin reed upon which to base the Constitutionality of the statute. The question, rather, will be whether the definition itself is Constitutional or not. The conservative wing of the court will argue that the definition is a longstanding, traditional definition and that this fact, in and of itself, allows the statute to pass Constitutional muster. How it comes out is of course of matter of which side of the argument gets 5 of 9.

The lead case right now is over the California statute. If that case makes it to the SCOTUS and the statute is overturned, all the rest will follow in short order. If not, then all will remain. The issues involved are not fundamentally different.

- wolf

 

[woolfe9999]

Defining it as a union between a man and a woman does NOT violate equal protection. Because that IS the definition of a marriage as it has been accepted for thousands of years.

You seem confused. It is the gay marriage people who are trying to take a term and redefine its meaning. Marriage has always been accepted as a union between a man and a woman. The only way you can have gay marriage is to redefine the term marriage. And if you can redefine it one way then you can redefine it anyway you want.

The ONLY way you can use the equal protection cause to promote gay marriage is for you to first get the definition of marriage changed. Once you get the definition of marriage changed then you can run around and claim that the government is violating the 14th amendment.

You are assuming that because a definition is traditional, it automatically passes Constitutional muster. This is a fallacy. The traditional definition need not be changed first. Traditionally the definition of marriage did not include interracial marriages either, but statutes precluding them were struck down as unconstitutional. This argument is a fail.

- wolf

 

[Harvey]

Defining it as a union between a man and a woman does NOT violate equal protection. Because that IS the definition of a marriage as it has been accepted for thousands of years.

You seem confused. It is the gay marriage people who are trying to take a term and redefine its meaning. Marriage has always been accepted as a union between a man and a woman. The only way you can have gay marriage is to redefine the term marriage. And if you can redefine it one way then you can redefine it anyway you want.

The ONLY way you can use the equal protection cause to promote gay marriage is for you to first get the definition of marriage changed. Once you get the definition of marriage changed then you can run around and claim that the government is violating the 14th amendment.

The meaning of the 14th Amendment is inscribed in bold capital letters above the west portico of the Supreme Court;

Anything less or anything else is CONSUMATE BULLSHIT! from a consumate bigot trying to make excuses for his bigotry! :thumbsdown:

 

[theeedude]

Defining it as a union between a man and a woman does NOT violate equal protection. Because that IS the definition of a marriage as it has been accepted for thousands of years.

That is not the standard. There is a lot of stuff that was accepted for thousands of years that wouldn't pass Constitutional muster now. Plus there IS NO definition of marriage in the Constitution, so saying this "IS the definition of marriage" is just your opinion.

You seem confused. It is the gay marriage people who are trying to take a term and redefine its meaning. Marriage has always been accepted as a union between a man and a woman. The only way you can have gay marriage is to redefine the term marriage. And if you can redefine it one way then you can redefine it anyway you want.

That is your opinion, don't confuse it with the Constitution. As far as it is concerned, defining marriage as "union between man and woman" would be redefining it, since there is no such definition currently.

The ONLY way you can use the equal protection cause to promote gay marriage is for you to first get the definition of marriage changed. Once you get the definition of marriage changed then you can run around and claim that the government is violating the 14th amendment.

There is no definition of marriage to change. Defining it as union between man and woman would be changing the currently absent definition.

 

[theeedude]

BTW, if legal definition of marriage already was "union between man of woman," there would be no Defense Of Marriage Act to change the definition to be that. The very fact that this act is on the table concedes that this is not the legal definition currently and needs this act to become that.

 

[Fern]

I don't remember there being definition of marriage in the Constitution, which is the governing document of the US.
-snip-

In such a case I suspect that they may look at common law. I.e., historically what has been the definition of "marriage".

Fern

 

[Fern]

-snip-
Under DOMA, married same-sex couples cannot choose to file their federal income taxes jointly - they must file separately, whereas married opposite-sex couples can file either way.

No, they cannot file "seperately" (actually "married filing seperately"). That filing status is reserved for married couples who choose not to file together (don't want joint liability for each other's taxes etc).

The same sex couples would have to file as "single". This is often more advantageous than "married filing joint", and far superior to "married filing seperately" that married couple must use if they don't want to file jointly.

Fern

 

[theeedude]

In such a case I suspect that they may look at common law. I.e., historically what has been the definition of "marriage".

Fern

Equal protection clause > common law.

 

[Fern]

BTW, if legal definition of marriage already was "union between man of woman," there would be no Defense Of Marriage Act to change the definition to be that. The very fact that this act is on the table concedes that this is not the legal definition currently and needs this act to become that.

Sometimes such laws are passed to codify a pre-existing understanding; to clarify.

It doesn't necessarily mean that marriage had no legal definition, rather it may be that Congress chose to clarify the question by legislation rather than putting it to the courts.

Fern

 

[Fern]

You are assuming that because a definition is traditional, it automatically passes Constitutional muster. This is a fallacy. The traditional definition need not be changed first. Traditionally the definition of marriage did not include interracial marriages either, but statutes precluding them were struck down as unconstitutional. This argument is a fail.

- wolf

Really?

If one were to go by seneamp's logic above they must have been, or no law would need passed prohibiting them.

Otherwise, interacial marriages have a long history. Not all 'white' people are of the same race, they intermarry. Whites and Asians have intermarried, whites and native Americans etc. I've read that one of the long ago Kings of Ireland (Celtic) married a Jewish woman (Semite) from the Middle east.

For a (relatively) brief period in the USA Blacks and whites couldn't marry. But that strikes me a blip on the screen, historically speaking.

Fern