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The Ninth Circuit and DOMA:

The indispensable Art Leonard has some thoughts on the potential significance of the internal grievance opinions that Eugene discussed earlier today.

All of this matters — beyond employees of the Ninth Circuit who entered same-sex marriages between June and November 2008 — mostly because the Ninth Circuit seems the most likely federal appeals court to decide a direct challenge to DOMA in the next few years. Judge Reinhardt's opinion isn't a shocker, but Judge Kozinski's is intriguing without committing him to anything. If the Ninth Circuit ruled against DOMA it would be difficult to see how it could do so without finding a right to same-sex marriage. And that would put the Supreme Court, which I think would like to avoid the issue for the foreseeable future, in a very difficult position. But that's still a few "ifs" down the road.

Related Posts (on one page):

  1. The Ninth Circuit and DOMA:
  2. Defense Of Marriage Act Unconstitutional
trad and anon:
Gay activists doing impact litigation aren't going to launch a direct challenge to DOMA for a while. The risk of creating another Bowers is simply too great.

It seems more likely that some random individual will bring a challenge in the First or Second circuits. Some of the states in those circuits actually grant same-sex marriages.
2.6.2009 12:43am
lesser ajax:
Would there be a right to same sex marriage or a right to recognition of same sex marriage where the marriage is already lawful under the laws of a State?
2.6.2009 4:49am
Public_Defender (mail):
The Kozinski opinion should be a warning to same sex marriage opponents. Their biggest problem is that unless you start with a religious belief that same sex marriage is somehow wrong, the substantive arguments against same sex marriage make no sense. The anti-same-sex marriage folks have some valid procedural arguments about how same sex marriage should or should not be enacted, but on the merits, their arguments sound like nonsense to the secular ear.

And it's really hard to get a judge to enforce a statute that looks like nonsense. Most judges (conservative, liberal and libertarian alike) will strain the text to avoid an absurd result. This is true for all areas of the law, not just same sex marriage.

These opinions are also interesting because there's basically no appeal. The judges apparently have the last word on employment matters in their court, and no one has standing to challenge them. I guess the anti-same-sex marriage could try to go to Congress to take away the health care coverage for the children of these employees, but good luck with that.

One thing is clear--the Ninth Circuit just gave itself an enormous boost in its ability to recruit and retain top-notch gay and lesbian employees. Providing good benefits to same sex couples is smart business.
2.6.2009 7:04am
Bob from Ohio (mail):

on the merits, their arguments sound like nonsense to the secular ear.


Yeah, but fortunately most Americans are not "secular".

Until there are some changes on the right side of the court, any decision striking down DOMA will be reversed.

If not, a full scale push for a Constitutional Amendment will do much of the work in reviving the GOP.
2.6.2009 9:57am
Randy R. (mail):
Bob : If not, a full scale push for a Constitutional Amendment will do much of the work in reviving the GOP."

I doubt it. With a Democratic majority in both houses, and a gay friendly president in the WH, it has even less of a chance to pass than it did a few years ago.

Furhtermore, striking down DOMA doesn't mean that SSM is required in all states. It merely states that no state would have to recognize SSM from another marriage. So, a state could still refuse to recognize SSM from another on it's own.
2.6.2009 10:38am
Oren:
Hard to imagine a Constitutional amendment getting anywhere. HI, CA, WA, DE, NY, NJ, MA, CT, RI, ME, VT, NH, IL and WI will never approve, and that's more than the 1/4th require to stymie the process. That's over and above the fact that it will never even get a vote in the Senate.

I always assumed that the GOP regularly bringing up a Federal marriage amendment (in addition to flag burning) was just a publicity stunt. No reasonable person would give either any chance of passing.
2.6.2009 10:50am
jrose:
unless you start with a religious belief that same sex marriage is somehow wrong, the substantive arguments against same sex marriage make no sense

I disagree. The argument that passes rational basis muster is same-sex marriage will result in fewer sraights marrying after they realize the special nature of marriage has changed.

striking down DOMA doesn't mean that SSM is required in all states

Wouldn't the logic used in striking down DOMA apply equally to requiring all states to offer same-sex marriage?
2.6.2009 11:09am
Roger Schlafly (www):
unless you start with a religious belief that same sex marriage is somehow wrong, the substantive arguments against same sex marriage make no sense
There are many such arguments. Barack Obama campaigned by saying that he was against SSM, but he never indicated that his view was based on a religious belief. There are many millions of people who oppose SSM and who are not religious at all.
2.6.2009 11:15am
Dan Hamilton:
The gift to the GOP is not a Constitutional amendment but the COURTs once again sticking their fingers in the publics eye. Pissing people off for no good reason. And once again showing that the courts just don't care about the laws or the constitution or anything that gets in the way of what the judges want.

This is deligitmizes the courts.

You tell me what happens when the people come to believe that the courts do not follow the law? And have REASON to believe this.

The left believes that everyone will just sit back and take it. And for a while they maybe right. But they KEEP PUSHING. And sooner or later they are going to push to far. They are stupid that way.

Why can't the courts learn from Roe vs Wade that courts should stay out of such problems. It is far better for the Legislature to solve such problems. People are far more willing to accept losing by votes then having something imposed on them by the courts.
2.6.2009 11:15am
Bob from Ohio (mail):
Did I say such an amendment would become part of the Constitution?

Gay marraige is opposed by the majority in many, even most states. Look at the results of the various state amendments.

Even California passed Prop 8.

Its the issue that would help the GOP.
2.6.2009 11:38am
Thales (mail) (www):
It's about time.

"There are many such arguments. Barack Obama campaigned by saying that he was against SSM, but he never indicated that his view was based on a religious belief. There are many millions of people who oppose SSM and who are not religious at all."

Please name a prominent atheist that is against gay marriage, and please provide data supporting your "millions" comment. I think this is a vanishingly small class of people.

"I disagree. The argument that passes rational basis muster is same-sex marriage will result in fewer sraights marrying after they realize the special nature of marriage has changed."

That may pass rational basis muster, but that doesn't make it not stupid and devoid of evidence to support it (or consequential--the "special" nature of marriage has been changed far more by the birth control pill and liberalized divorce standards than by a small chunk of the population wanting to bond legally).
2.6.2009 12:19pm
PubliusFL:
Thales: That may pass rational basis muster, but that doesn't make it not stupid and devoid of evidence to support it (or consequential--the "special" nature of marriage has been changed far more by the birth control pill and liberalized divorce standards than by a small chunk of the population wanting to bond legally).

A lot of people are concerned by the high divorce rates resulting from liberalized divorce standards etc. Saying "look how weakened marriage is already" is not a good argument to persuade such people to accept yet another thing that may weaken the institution.
2.6.2009 1:16pm
Randy R. (mail):
jrose:"The argument that passes rational basis muster is same-sex marriage will result in fewer sraights marrying after they realize the special nature of marriage has changed"

Then marriage rates should have declined in all or many of the jurisdictions that have allowed SSM. That hasn't happened. In fact, in the scan countries, marriage rates have actually increased slightly.

And how exactly has the special nature of marriage changed in Massachusetts? I still see lovely brides all dressed in white.

You could also argue that if gays get married, all the corn crops will fail. But you need some semblence of evidence to back up what you are arguing. Indeed, it must be a *rational*, not merely hypothetical, standard.
2.6.2009 1:37pm
jrose:
But you need some semblence of evidence to back up what you are arguing.

No, you don't
2.6.2009 3:35pm
Randy R. (mail):
Well, then, at least you agree that you have nothing to back up your statement.
2.6.2009 3:43pm
JoeSixpack (mail):
I admit I am not particularly engaged on this issue as I should be, but wasn't there a general legal consensus that DOMA was unconstitutional under the "Full Faith and Credit" clause?

Also, I agree strongly with Public_Defender that there is no rational basis for the government to restrict marriage to one man and one woman. I am eager to have these laws overturned because I am interested in pursuing a polygamist lifestyle and the only things holding me back are these arcane, irrational laws and the consent of my wife.
2.6.2009 3:45pm
Sabor de Soledad (mail):
Are people commenting here always so ridiculously homophobic?
2.6.2009 3:53pm
Thales (mail) (www):
Sabor--no, but this topic draws that element out of the woodwork, unfortunately.


Where is the causal or even subrational link between a decline in straight marriage and a rise in gay marriage? I suppose it is marginally possible that legal equality means more closeted or self-deceptive gays will come out and not be trapped in loveless and difficult (for them and for their confused spouses) pretenses of heterosexual marriage, but that's a good thing, isn't it?
2.6.2009 4:03pm
Thales (mail) (www):
"Why can't the courts learn from Roe vs Wade that courts should stay out of such problems. It is far better for the Legislature to solve such problems. People are far more willing to accept losing by votes then having something imposed on them by the courts."

This may be a prudent statement, regardless of one's political leanings. I can understand the mentality that abortion rights "impose" some burden on the nonconsenting opponents--there's another person or potential person there, who may have rights prior to birth.

But what is the "imposition" on straights by the existence of married gay couples? In what way are the straights affected, other than in their sensibilities? And if only the latter, how can "I just don't like it/them" be a legitimate (democratic or not) basis for legislation?
2.6.2009 4:08pm
jrose:
Randy,

You miss my point. I think the argument is crap. But, this is a legal blog, and the argument passes legal muster. Reinhardt got it wrong.
2.6.2009 4:32pm
PubliusFL:
Thales: Where is the causal or even subrational link between a decline in straight marriage and a rise in gay marriage? I suppose it is marginally possible that legal equality means more closeted or self-deceptive gays will come out and not be trapped in loveless and difficult (for them and for their confused spouses) pretenses of heterosexual marriage, but that's a good thing, isn't it?

Here are a couple of other proposed mechanisms by which gay marriage could weaken straight marriage:

1. Straight marriage thrives when it is more-or-less universally expected of young adults, because that's the best way to get young men to settle down and marry. Gays may be less interested in marriage even after it's legalized, in which case broadening marriage to include gays would weaken the universality of it. Marriage would shift further in the direction of one lifestyle choice out of many possible choices.

2. Sexual fidelity is important to traditional marriage as an institution. Gays may associate marriage with sexual fidelity less than straights do. A rise in marriages that are not sexually exclusive would lower social expectations about fidelity in marriage, and weaken the institution as a whole.

I don't know what the empirical evidence shows about these things, but the arguments seem rational at least in the near to medium term. It could well be that in the longer term, as the gay community gets "used to" the idea of marriage, expectations for gay marriage would be no different from those for traditional straight marriage.
2.6.2009 4:40pm
Sabor de Soledad (mail):


1. Straight marriage thrives when it is more-or-less universally expected of young adults, because that's the best way to get young men to settle down and marry. Gays may be less interested in marriage even after it's legalized, in which case broadening marriage to include gays would weaken the universality of it. Marriage would shift further in the direction of one lifestyle choice out of many possible choices.

2. Sexual fidelity is important to traditional marriage as an institution. Gays may associate marriage with sexual fidelity less than straights do. A rise in marriages that are not sexually exclusive would lower social expectations about fidelity in marriage, and weaken the institution as a whole.



Thanks Publius, that's a pretty good example of homophobia right there. Untrue assumptions based on stereotypes. I skipped a lot of con law, but I think stereotypes can't be used even to support rational basis.

Ugh. Why do I let myself get dragged into this? Oh right, because I don't have the legal right to get married, and I have to stand by and listen to a**holes blather on about whether I deserve equal rights.
2.6.2009 4:57pm
cmr:

Are people commenting here always so ridiculously homophobic?


Nobody here is homophobic. It's just that you're probably not going to get the parade of "gay marriage is completely logical and legal for no other reason than I want it to be so" that you would on another blog, like DailyKos or at HuffPo.

If anything, there are a lot of people here who simply want the courts and/or the legislature to create gay marriage whole cloth, no matter what the fall out and the precedence set by it, or the lack of it for it.
2.6.2009 5:33pm
Guest14:
Nobody here is homophobic.
Did you forget to sign in as Sarcastro?
2.6.2009 6:18pm
PubliusFL:
Sabor de Soledad: Thanks Publius, that's a pretty good example of homophobia right there. Untrue assumptions based on stereotypes. I skipped a lot of con law, but I think stereotypes can't be used even to support rational basis.

Right! Pure homophobia without any basis whatsoever in reality. Just like this homophobe from The Advocate:

http://www.advocate.com/print_article_ektid33614.asp

These stereotypes aren't exactly coming out of thin air. I should clarify that the statements I made are obviously generalizations. Although it does seem to be true that the mean gay man is less interested in marriage and more promiscuous than the mean straight man, there are obviously lots of boringly monogamous gays and wildly promiscuous straights. And as I acknowledged, it may very well be that the difference in attitudes (on average) is a RESULT of marriage not being an option for gays.
2.6.2009 6:39pm
Randy R. (mail):
Pluribus: Yes, of course you are generalizing. Question: Even if your assumptions are true, why is that grounds for denying marriage rights to those who are treat marriage perfectly?

It seems that you straights have done a pretty good job of messing with marriage — I see adultery, spousal abuse, marriages for convenience and/or for money, arranged marriages, marriages were one spouse is frigid or nonsexual, shotgun marriages, even (horrors!) interracial marriage.

Somehow, the institution has survived the worst that you people have thrown at it. But throw a hand ful of gay marriages, and you assume that suddenly this will tip the scales? Please, be real.

Furthermore, you are correct — there is no empirical evidence to back up your assumptions. In all jurisdictions were SSM is legal, such as MA, Canada, Norway, S. Africa, Spain, The Netherlands and Belgium ( and now CT), there has been no decrease in marriage rates. In fact, in the Scan countries, there has been a slight increase.

If you don't know the eventually effects of SSM, then you don't know. But then don't make the assumption that the effects must necessarily be bad. they might be neutral or positive for all you know.

But here is where you MAY be correct. by NOT allowing gays to get married, that may have the real effect of weakening marriage. Why? Because young straight couples can look at gay men and see that they are living a wonderfully happy life together, monogamous, caring, everything that a striaght marriage ought to be, but they aren't married. They are a living example of success without marriage.

Is that what you want your kids to see?

IOW, banning SSM isn't going to stop gays from coupling and living together. Nor will it stop gays from raising children. (And certainly, you believe that the children of gay parents ought to have the rights and stability of married parents, don't you?). So we are proving right now that you don't need to get married to live happily together and raise a family.

Is that the model you want? Because if it isn't, then you should be jumping up and down and saying gays should be *required* to get married if they want a family. It's the traditional and conservative thing to do.
2.6.2009 8:55pm
Public_Defender (mail):

I don't know what the empirical evidence shows about these things, but the arguments seem rational at least in the near to medium term.

I think this pretty much refutes the rest of your argument argument. No evidence, but it feels right to you.


The argument that passes rational basis muster is same-sex marriage will result in fewer sraights marrying after they realize the special nature of marriage has changed.


This argument is almost self-refuting. The only people concerned about same sex marriage are people who claim to believe strongly in heterosexual marriage. Why would they be less willing to marry just because gay people can?


Until there are some changes on the right side of the court, any decision striking down DOMA will be reversed.

If not, a full scale push for a Constitutional Amendment will do much of the work in reviving the GOP.

Good luck with that. When the Nixon/Reagan/Bush racist Southern strategy started to wane, Bush II added gay bashing. It worked in 2000 and 2004. But it's already losing steam.

Young people are far less anti-gay than older people. Only thirty years ago, we were firing school teachers just for being gay. Now that would be unthinkable most places. Thirty years ago, it was risky to be openly gay in most workplaces. Today, it's risky to be openly anti-gay in many (if not most) workplaces. History is moving away from you, fast.
2.6.2009 10:00pm
jrose:
Why would they be less willing to marry just because gay people can

Because in their view, marriage has been spoiled and lost its special meaning.
2.7.2009 7:26am
pluribus:
Randy R. (mail):

Pluribus: Yes, of course you are generalizing. Question: Even if your assumptions are true, why is that grounds for denying marriage rights to those who are treat marriage perfectly?

Please stop using my name when I haven't even posted on a thread. I have argued in favor of SSM on other threads, but haven't posted here at all! You really should be more careful.
2.7.2009 8:29am
cmr:
Pluribus: Yes, of course you are generalizing. Question: Even if your assumptions are true, why is that grounds for denying marriage rights to those who are treat marriage perfectly?

It seems that you straights have done a pretty good job of messing with marriage — I see adultery, spousal abuse, marriages for convenience and/or for money, arranged marriages, marriages were one spouse is frigid or nonsexual, shotgun marriages, even (horrors!) interracial marriage.



You still haven't learned that the onus is on those of you who wish to institute SSM as presenting the compelling argument for it. It's not up to those of us who disagree with it to make you feel better about it not being legal.

Perhaps a lot of the reservation to legalize SSM comes from the idea that the SSM is the result of the aggregate amount of dysfunction in the institution of marriage. Socons and religious conservatives already see it as being under attack, and while they're not proud of the rates of divorce and adultery, you can't seriously expect them to willfully add to their burden to get marriage to what they think is optimum.

And, in political terms, it might not be a good idea to argue that SSM is a good idea because straight people have done a good job at messing up the institution of marriage.

IOW, banning SSM isn't going to stop gays from coupling and living together. Nor will it stop gays from raising children. (And certainly, you believe that the children of gay parents ought to have the rights and stability of married parents, don't you?). So we are proving right now that you don't need to get married to live happily together and raise a family.


So...what's the point of legalizing SSM, again? Saying that you're going to be together anyway, that you're going to have kids anyway, that you're going to "live happily together and raise a family" anyway,, why all the furor over not having SSM recognized?

You know, besides that whole bit about this being a purely identity politics issue, and trying to social engineer acceptance for gays through judicial activism and moral grandstanding.
2.7.2009 1:15pm
jrose:
You still haven't learned that the onus is on those of you who wish to institute SSM as presenting the compelling argument for it

Maybe, maybe not. Certainly not in Connecticut.

why all the furor over not having SSM recognized [...] besides that whole bit about this being a purely identity politics issue, and trying to social engineer acceptance

There is the matter of the legal benefits associated with marriage. But your point about acceptance is also valid. Gays want their relationships accepted as being equally worthy of marriage - to have a seat at society's table as first class citizens. You don't, and one can't help but wonder why?
2.7.2009 2:18pm
cmr:
Maybe, maybe not. Certainly not in Connecticut.

Yeah, neither in Massachusetts.

There is the matter of the legal benefits associated with marriage. But your point about acceptance is also valid. Gays want their relationships accepted as being equally worthy of marriage - to have a seat at society's table as first class citizens. You don't, and one can't help but wonder why?

Most of those benefits come at the expense of the taxpayers...what's in it for them? How do gay relationships contribute to society in such a way that would off-set that cost?

The point of those benefits isn't to give legal goodies to every couple that decides to get hitched. And using an institution that has historically been one thing and accusing that of the result of, or the source of, discrimination isn't very convincing, either. I wouldn't lightly conclude that.
2.7.2009 4:16pm
Roomba Man (mail) (www):
MESSAGE
2.7.2009 5:26pm
jrose:
How do gay relationships contribute to society in such a way that would off-set that cost

The same way opposite-sex, childless relationships do - and we happily celebrate those relationships.
2.7.2009 6:05pm
cmr:
The same way opposite-sex, childless relationships do - and we happily celebrate those relationships.

So they, essentially, don't? Because I could've sworn we accept those relationships despite their lack of actual contribution. Not because of it.
2.7.2009 6:17pm
jrose:
I could've sworn we accept those relationships despite their lack of actual contribution

I disagree. We don't merely tolerate them, we happily celebrate them.

Thought experiment assuming a state agrees with you: the state puts down their economic foot and doesn't allow childless couples to marry. Guess what happens in court?
2.7.2009 6:23pm
cmr:

I disagree. We don't merely tolerate them, we happily celebrate them.

Thought experiment assuming a state agrees with you: the state puts down their economic foot and doesn't allow childless couples to marry. Guess what happens in court?


Who is "we", exactly? Also, why would the courts prohibit childless couples from marrying? Wouldn't it make more sense to say barren, infertile men and women?
2.7.2009 11:52pm
jrose:
cmr,

"We" reflects my view of how society as a whole views childless-couple marriages.

OK, let's alter the hypothetical. How does the court rule when a state forbids the infertile from marrying, and an infertile person sues for the right to marry.
2.8.2009 7:38am
hypo doesn't fly:
The state would first have to determine who was infertile, and such invasive en masse testing of couples would violate doctor-patient confidentality and would likely be unconstitutional under the Fourth and Fourteenth Amendments.

The court would never reach the question you pose.
2.9.2009 9:03am
cmr:
Exactly. And besides, I'm not advocating passing legislation that expressly denies individuals anything. The current marriage law allows anyone to marry...someone of the opposite sex. The law says nothing about orientation, and it doesn't deny men something women have or vice versa.

You're posing a hypothetical based on a negative premise. This would parallel the current situation if there was legislation that banned gay people from receiving marriage benefits.
2.9.2009 2:45pm
jrose:
The state would first have to determine who was infertile [...] [t]he court would never reach the question you pose

They would if an infertile couple volunters their status.

The law says nothing about orientation

It doesn't have to in order for there be to an intention to discriminate on that basis. See for example Lawrence or Limon
2.9.2009 6:01pm
cmr:

It doesn't have to in order for there be to an intention to discriminate on that basis. See for example Lawrence or Limon


Lawrence nor Limon had anything to do with marriage, and I don't know that you could prove that statutes stating that marriage is between a man and a woman are solely based on animus against homosexuals. BTW, it's that belief that fuels the constant comparisons to child marriage, incest, and adult-child relationships. Because the accepted definition doesn't encompass every type of relationship that's permissible (though the pedophilic types are illegal) doesn't make it discriminatory. Discretionary, perhaps.
2.9.2009 8:52pm
jrose:
I don't know that you could prove that statutes stating that marriage is between a man and a woman are solely based on animus against homosexuals

I didn't claim it was based on animus. I claimed it was intentional. Lawrence and Limon directly apply to that question. Likewise, the laws prohibiting child marriages and incestuous marriages intentionally discriminate.

Whether such discrimination is constitutionally permissible must be judged on a case by case basis. In contrast, the view that (possibly permissible) discrimination hasn't even occurred, is not tenable.
2.9.2009 9:02pm

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