SCOTUS' DOMA Case

[DontSayBanana]

Can one of the lawtalkers please explain to me why they seem to be hinging the DOMA case on a weak equal protection argument, when there's a perfectly solid argument to be made about a federal law improperly suborning those passed by states?

[garbon]

Sorry but we already have a gay legal rulings thread.

[Kleves]

During oral argument they talked about the Federalism issues quite a bit. 

[Phillip V]

[ulmont]

Can one of the lawtalkers please explain to me why they seem to be hinging the DOMA case on a weak equal protection argument, when there's a perfectly solid argument to be made about a federal law improperly suborning those passed by states?

The federalism argument came up quite a lot, and Kennedy certainly likes it.

The argument, of course, is that it's bullshit.  Thought experiment - imagine if the federal government said "marriage, for our purposes, means (i) any marriage recognized by state law; (ii) any domestic partnership or civil union recognized by state law; or (iii) any domestic partnership or civil union [registered with the federal government and complying with requirements x-y]."

I can't see any reason why the federal government couldn't make that definition, and so I can't see any reason why the federal government can't define "marriage" consistently for its purposes in a more narrow fashion, other than the equal protection argument.

As to the equal protection argument, it's not weak.
(1) DOMA specifically singled out a class of people for legal consequences because of animus (to express the moral sense of the House that homosexuality is wrong); and
(2) The only reason Windsor couldn't be married for federal law purposes is because she isn't a man (or her spouse isn't a man, either way).  It's classic gender discrimination, to be justified only by a substantial state interest, which "we hate gay people" isn't.

[stjaba]

Can one of the lawtalkers please explain to me why they seem to be hinging the DOMA case on a weak equal protection argument, when there's a perfectly solid argument to be made about a federal law improperly suborning those passed by states?

I don't think the federalism argument is particularly strong- at least for certain aspects of DOMA. From what I understand, the aspect of being DOMA being challenged is the provision which defines marriage for purposes of federal benefits. How something is defined for purposes of receiving federal benefits doesn't infringe on state laws. I think there is an aspect of DOMA which permits states to not recognize gay marriages from other states. That provision is trickier, although I don't know if it is at issue.

Secondly, just because something is within the traditional purview of the states doesn't mean that the federal government can't regulate it. The main constraint is that there has to be some basis in the constitution for the federal government to pass the legislation. That was the whole debate with regards to Obamacare.

Some people (primarily academics) think that the Tenth Amendment provides support for the notion that the federal government should not regulate areas of traditional state responsibility. In fact, there was a 1976 Supreme Court case (National League of Cities v. Usery) which held precisely that, but that case was subsequently overturned in 1985 by Garcia v. San Antonio Metropolitan Transit Authority.

[The Brain]

Surely marriage is about interstate commerce.

[jimmy olsen]

Surely marriage is about interstate commerce.

You're an honorary American in my book.

[The Brain]

There's no honor among Americans.