DOMA Down

Batten down the hatches. This is going to SCOTUS:

A federal appeals court Thursday declared that the Defense of Marriage Act unconstitutionally denies federal benefits to married gay couples, a groundbreaking ruling all but certain to wind up before the U.S. Supreme Court.

In its unanimous decision, the three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston said the 1996 law that defines marriage as a union between a man and a woman deprives gay couples of the rights and privileges granted to heterosexual couples.

Two of those judges were Republican appointees. Now to clarify one thing: the part of DOMA that was struck down was on federal benefits. States that do not recognize gay marriage would not be required to if the Supreme Court were to uphold the ruling. And the Court declined to review whether there is a constitutional right to marriage.

I kind of like this decision, actually, which crosses me as very federalist. It allows the states to continue to define marriage as they want but requires the feds, as far as they address marriage, to recognize whatever the states have. I can live with that and I suspect most federalists can as well. I suspect most gay people would be fine with it, too. But this won’t be final until SCOTUS makes a decision.

While I’m sympathetic to the Libertarian argument that the government should just get out of marriage, I don’t see this as really practicable. Like it or not, government is involved in marriage and sort of has to be. When someone dies without a will, the disposition of their property has to be determined by law, not whoever shows up with a trailer. When someone is sick or incapacitated and has not left written instructions, someone has to have power of attorney. Custody of children has to be determined by legal agreement or a neutral arbiter, not whoever has them in their home at the moment. Family and probate courts are an ugly business. But the alternative, in the absence of previous legal agreements, is chaos and heartache.

I would like to see the government back out of it as much as possible and I think there’s room for that. Our tax code could be simplified so that marriage doesn’t matter (the tax benefit to married couples being a key part of the legal argument the First Circuit addressed). Wills and inheritances and death benefits can be given to any beneficiary one cares to nominate (many default to legally recognized spouses). Adoptions could be strengthened to eliminate custody battles between families and gay partners. I don’t think there will ever come a time when government can ignore marriage. But I do think we can reduce its footprint to a minor inconvenience.

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  1. Seattle Outcast

    It allows the states to continue to define marriage as they want but requires the feds, as far as they address marriage, to recognize whatever the states have. I can live with that and I suspect most federalists can as well. I suspect most gay people would be fine with it, too.

    Based on my experiences, I’d say they won’t be fine with it. A good percentage will, certainly, but a lot won’t be. There is a big push to make this a federal matter, and not just with the gay community. Polygamists are also going to use this as a launching point to press for plural marriages being legalized.

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  2. Hal_10000 *

    Good points, both of you.

    I wonder if Obama was tipped that this was coming. It’s basically the view he articulated in his “coming out” on gay marriage.

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  3. HARLEY

    I for one am glad this came down this way. the Fed gov has no business intervening in domestic relationships. As long as no citizen is getting hurt in the matter, its is not any concern of the state or federal government. full stop.

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  4. Mississippi Yankee

    Does anyone here understand that all these three judges did was kick this controversy down the road, or more specifically ‘up stairs’? This isn’t a victory for anyone, with the exemption of the “pot stirrers”.
    Their ruling didn’t make one iota of difference in the states that already have same sex marriage.Nada. Zip.

    No matter who wins the election in November the SCOTUS will dramatically change. And quite rapidly too I’ll bet.

    What’s the backlog for the Supreme Court? Yeah, that’s what I thought.

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  5. Xetrov

    What’s the backlog for the Supreme Court? Yeah, that’s what I thought.

    The SCOTUS doesn’t have a backlog, thanks to the Judiciary Act of 1891. Cases they grant a writ of certiorari to are heard in the same term. Other cases not granted that writ are never in their docket.

    A minimum of four of the nine Justices are required to grant a writ of certiorari, referred to as the “rule of four”. The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the term that concluded in June 2009, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1%. Cases on the paid certiorari docket are substantially more likely to be granted than those on the in forma pauperis docket. The Supreme Court is generally careful to choose only cases over which the Court has jurisdiction and which the Court considers sufficiently important, such as cases involving deep constitutional questions, to merit the use of its limited resources. See also Cert pool. While both appeals of right and cert petitions often present several alleged errors of the lower courts for appellate review, the Court normally grants review only of one or two questions presented in a certiorari petition.

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