g********d
发帖数: 4174 | 1 http://www.huffingtonpost.com/kent-greenfield/the-doma-supreme-
A federal judge in Boston has ruled unconstitutional the portion of the
Defense of Marriage Act (DOMA) that limits federal benefits to straight
couples even in states that recognize gay marriage. This is just the first
inning in a long game that will eventually end up in the Supreme Court. The
decision there will depend on whether the conservatives really believe in
states' rights.
For almost 20 years, one of the pivotal debates on the Supreme Court has
been the role of states' rights in limiting the power of the federal
government. In cases on issues ranging from the possession of handguns in
school zones to violence against women, the conservatives on the Court have
argued that Congress cannot assert its power to regulate because doing so
would encroach on "state sovereignty." According to the conservatives, areas
of "traditional state concern" are protected by the 10th Amendment to the
Constitution.
The contours of the 10th Amendment limitation have never been clear, mostly
because the 10th Amendment itself is not clear. (It says that whatever
powers the federal government does not have are left to the people or to
states; it punts on what those powers actually are.) But one thing has been
clear in the opinions of the conservatives on the Court: family law --
marriage, divorce, child custody -- is an area of traditional state concern.
In both the handgun case (United States v. Lopez) and the violence against
women case (United States v. Morrision), then-Chief Justice Rehnquist cited
the federal regulation of family law as one of a parade of horribles that
would arise if federal power got out of hand.
The federal judge in Boston struck down DOMA using these precedents, saying
that "DOMA plainly intrudes on a core area of state sovereignty." The court
also cited history, recognizing that "State control over marital status
determinations is a convention rooted in the early history of the United
States, predating even the American Revolution." The court emphasized the
Supreme Court's language that "the whole subject of the domestic relations
of husband and wife, parent and child, belongs to the laws of the States and
not to the laws of the United States."
This reasoning poses a real dilemma for states righters.
Up to now, the 10th Amendment has been used almost exclusively by
conservatives who want to limit the federal government's power to protect
our environment, restrict firearms, or punish racial discrimination. And it'
s been a powerful rhetorical tool -- it's been used to good effect by the
Tea Party, for example, in fighting health care reform and Wall Street
bailouts.
But the DOMA case turns the ideology around. The 10th Amendment is being
used for a politically progressive goal -- to fight against federally
mandated discrimination in an area of traditional state concern.
When it gets to the Supreme Court, if the Court is consistent with its
previous statements about family law being out of bounds for the federal
government to regulate, then DOMA should lose.
DOMA should lose for an additional reason. In the 1995 handgun case, Justice
Anthony Kennedy -- always the swing vote -- explained his dedication to
states' rights by referencing Justice Louis Brandeis's famous aphorism that
states can serve as "laboratories" of democracy, trying "novel social and
economic experiments without risk to the rest of the country." To Kennedy,
the handgun statute needed to be struck down because it "forecloses the
States from experimenting and exercising their own judgment in an area to
which States lay claim by right of history and expertise."
This same rationale works perfectly as a reason to question DOMA. In
Massachusetts, the "experiment" of gay marriage has been a success. (It has
the second lowest divorce rate in the country). The laboratory has worked,
and it has shown the way for an increasing number of states to provide
equality for their own citizens. | g********d
发帖数: 4174 | 2 adoantarel 03:52 PM on 7/09/2010
136 Fans
The conservative justices will argue that DOMA does not interfere with
state powers because it doesn't tell states whom they can marry. Instead,
it sets eligibility requirements for who can receive federal
benefits.
They'll deny that it's discriminatory because sexual orientation
isn't a protected class like race.
It's a BS argument, but it sounds reasonable enough to unthinking people
that they'll think they can get away with it.
So, that's how the 4 axis of evil justices will vote. Now we just have to
wonder about Kennedy. |
|
