Legal scholar Ed Whelan pushes back against the New York Times in NRO's Bench Memos blog:
“Six federal courts have ruled on the Defense of Marriage Act and reached the same conclusion”—that DOMA is unconstitutional. So declares the New York Times in its house editorial today, in a half-truth that rises above the NYT’s usual level of accuracy. It’s also true, as the House of Representatives’ certiorari petition spells out (on pp. 9-10), that five or so federal courts have rejected the constitutional challenge to DOMA,[...]... The NYT also states that the “legal challenge over federal benefits [DOMA] is a matter separate from the broader question of whether gay people have a constitutional right to marry.” But, notwithstanding confusion over false federalism interests supposedly implicated by DOMA (see my point 3.b here), I see no plausible basis on which the Court could invalidate DOMA without adopting reasoning that would compel invention of a federal constitutional right to same-sex marriage. So don’t be snookered by the suggestion that the two issues are meaningfully distinct.
7 Comments
Marriage IS NOT a Right & neither is gay marriage. Marriage has been & will continue to be a privilige. I am so sick & tired that gays & their supporters keep whinning about it being a civil right. NO WHERE in the U.S. Constitution that says that gays have a civil right to get married.
I wouldn't say that I'm "snookered" when SSMers in forums like NYT claim that the DOMA challenges are unrelated to the constitutionality of defining marriage as opposite-sexed. But I do love to note to SSMers on this blog how judges cautiously stop short of declaring a right to ssm in their anti-DOMA rulings--possibly because they know that such a right doesn't exist.
So, I'm aware of their devices, but I love to use the occasion to have fun: "the 1st Circuit acknowledged that ssm is not a constitutional right...hahahaha."
I'm glad Whelan noted that DOMA has been upheld five times before the recent rash of anti-DOMA rulings.
And the recent rash of anti-DOMA rulings is in tandem with the DOJ's non defense. Coincidence?
Two of the six rulings were from appellate courts; whereas the other four where from subordinate courts citing the two recent higher court findings as their rational.
Compare that with the five appellate courts that upheld DOMA on the same rational basis that the 1st Circus recently acknowledged, but opined did not apply because there appears to be a intermediary basis available that has yet to be defined by the higher courts.
I imagine they will declare this newly discovered intermediary standard the pervert basis; a basis that exists somewhere in between the rational basis standard and the heighten scrutiny standard, but well below the strict scrutiny standard afforded religion.
Tom says the following:
Marriage IS NOT a Right & neither is gay marriage. Marriage has been & will continue to be a privilige. I am so sick & tired that gays & their supporters keep whinning about it being a civil right. NO WHERE in the U.S. Constitution that says that gays have a civil right to get married.
Actually the court recognized a civil right to marriage but it also defined marriage as the union of one man and one woman. There is no civil right to phony same sex marriage as it is not a marriage. There is no civil right to make up your own rules and their is no civil right to redefine marriage.
What is a PRIVILEDGE to all of us is state recognition of our marriages and the benefits that come with it. No one has a right to any type of state license. Therefore their is no civil rights violations of homosexuals.
Randy:
Perhaps we can call it "heightened intermediate specially limited to one particular case where we think it might get Kennedy giggling" scrutiny.
For all the obvious cookery going on in the judicial assault on marriage, I still predict and confidently expect the system to work nonetheless.
SCOTUS has been waiting to send a message about these shenanigans.
The Obamacare travesty was the fig leaf.
"And the recent rash of anti-DOMA rulings is in tandem with the DOJ's non defense. Coincidence?" -- Only if you somehow think that Holder et al would've done a better job defending the law...