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Thread: Second Circuit Strikes Down DOMA

  1. #1

    Second Circuit Strikes Down DOMA

    http://www.ca2.uscourts.gov/decision...3467/1/hilite/

    Some key points:

    1) This is just the latest in a growing chorus of decisions that have found DOMA unconstitutional

    2) The Judge who wrote the panel's opinion is a conservative appointed to the Second Circuit by Bush 41. When he was made the Circuit's chief justice in 2006, the NY Sun described him as "[w]idely recognized as one of the more conservative jurists on the 2nd Circuit", and here's one (liberal) blogger's description of him a few years back:

    Jacobs in one of those jurists (criticized in prior columns) who seem to relish speaking before ideological groups and discussing matters that are either before his court or likely to come before him. For example, on November 19, 2010, he delivered a speech titled “National Security & The Constitution” before a gathering of the Federalist Society at the Mayflower Hotel in Washington where he criticized courts for their rulings against national security agencies and lawyers who distrust the military. What concerns me with these types of speeches is that judges can feel that they have to maintain “their base” and play to the ideological appeal of reckless rhetoric and posturing from the bench.
    That's important for two reasons: first, this wasn't some wild-eyed liberal with an agenda to push; he (like Ted Olson) is a respected and conservative jurist who, on the law, believes DOMA is unconstitutional. And second, because it drives home, again, that ideology is not necessarily a predictor of judicial rulings, at least not for the good judges.

    3) Most importantly, the panel ruled that homosexuals were a quasi-suspect class (like gender classification) and laws that relied on such classifications were subject to intermediate scrutiny. That makes this decision the first to rule that DOMA had to do more than just pass rational basis review. (The dissent disagreed, and ruled it had a rational basis).

    That's likely to have a large impact, and could lead to Supreme Court review.

  2. #2
    So your third point relates to the third section of the bill, right?

    In effect, strike down that section and all 50 states gain the right to marry same sex couples...

    Just curious...

  3. #3
    JetsInsider.com Legend
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    How long once legalized till we see a State implement special rights and benefits for Gay Marriage that they don't offer to Hetro, and (concurrently) we'll get to read Doggin here defending such special treatement as legal and rightious?

    Affirmative Gay Marriage Action. It's only right, after all.

  4. #4
    Quote Originally Posted by Warfish View Post
    How long once legalized till we see a State implement special rights and benefits for Gay Marriage that they don't offer to Hetro, and (concurrently) we'll get to read Doggin here defending such special treatement as legal and rightious?

    Affirmative Gay Marriage Action. It's only right, after all.
    Unlikely. That would (justifiably) lead to an equal protection challenge by heterosexual couples.

  5. #5
    Quote Originally Posted by AlwaysGreenAlwaysWhite View Post
    So your third point relates to the third section of the bill, right?

    In effect, strike down that section and all 50 states gain the right to marry same sex couples...

    Just curious...
    Not quite - 50 states gain the right to choose to allow gay couples to marry, and the Federal government must treat all such couples equally. (So, it can't have different inheritance rules for gay spouses and straight ones, which was the issue in this case - the application of an estate tax to the inheritance of a lesbian widow legally married under state law, where the tax would not have applied to a straight spouse)

  6. #6
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    Quote Originally Posted by doggin94it View Post
    Unlikely. That would (justifiably) lead to an equal protection challenge by heterosexual couples.
    Why?

    What basis can you argue that there is NO circusmtance where a State or State Agency may view encouraging gay marriage diversity is a benefit to the greater good? What basis can you argue that this "class" as you'd call them has not been descriminated against for a long, long time, and thus they deserve better treatment to make up for it.

    All it takes is a State to argue it's for the grreater good or as a make-up for past poor treatment, and a Court (lol) to agree.

  7. #7
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    Quote Originally Posted by doggin94it View Post
    Not quite - 50 states gain the right to choose to allow gay couples to marry, and the Federal government must treat all such couples equally. (So, it can't have different inheritance rules for gay spouses and straight ones, which was the issue in this case - the application of an estate tax to the inheritance of a lesbian widow legally married under state law, where the tax would not have applied to a straight spouse)
    How do you know she wasn't the widower you misogynist scum?!?

  8. #8
    Quote Originally Posted by Warfish View Post
    Why?

    What basis can you argue that there is NO circusmtance where a State or State Agency may view encouraging gay marriage diversity is a benefit to the greater good? What basis can you argue that this "class" as you'd call them has not been descriminated against for a long, long time, and thus they deserve better treatment to make up for it.

    All it takes is a State to argue it's for the grreater good or as a make-up for past poor treatment, and a Court (lol) to agree.
    Problem is, the Supreme Court in Bakke expressly rejected "balancing" or "making up for past problems" as a viable basis for affirmative action.

    And I can think of no argument to be made that "diversity" in the orientation of couples getting married is a compelling state interest.

  9. #9
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    Quote Originally Posted by doggin94it View Post
    And I can think of no argument to be made that "diversity" in the orientation of couples getting married is a compelling state interest.
    Objection, your honor. Relevance?

    Just because YOU cannot dream up some rationale, does not mean others could not. **** Doggin, I can't agree with, nor would I have ever thought up, the suppsed rationale for most of what our State and Federal Govts. do and are involved in these days.

    I assure you, wait a while, and SOMEONE will create a rational for why they should get X benefit than others do not get.

    Example: In-State Tuition for ILLEGAL Immigrants while denying In-State Tuition to LEGAL Citizens who have lived in that same State.

    I rest my case.

  10. #10
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