Gill Goes As Anticipated

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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16 Responses

  1. Ryan Noonan says:

    As others have pointed out, this seems like the perfect way to split Tony Kennedy down the middle. I expect SCOTUS to affirm and punt the rest of the issue.Report

  2. Kazzy says:

    Is it wrong that I find the picture associated with this post kinda hot?Report

  3. DensityDuck says:

    I don’t think the opinion relies on the Tenth Amendment; in fact, it specifically rejects arguments based on it. From the opinion:

    “In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded…”

    “That Congress has traditionally looked to state law to determine [the definition of marriage] does not mean that the Tenth Amendment or Spending Clause require it to do so…”

    “Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government…[w]hatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.”

    The argument of the court, based on my reading of the opinion, is that DOMA’s stated reasons for enactment were 1) to save money (fewer spouses to pay benefits to), 2) to encourage child-rearing (same-sex couples cannot biologically reproduce in the typical manner), 3) moral (icky homos). #1 was shot down on practical grounds, #2 was declared to be overtaken by technology and societal practice, and #3 was declared invalid due to Lawrence v. Texas.Report

  4. North says:

    Overall a pretty good outcome to my mind.Report

  5. M.A. says:

    Linking the PDF makes it a bit more readable.

    The most interesting to me was the following:
    Although the House Report is filled with encomia to
    heterosexual marriage, DOMA does not increase benefits to
    opposite-sex couples–whose marriages may in any event be childless,
    unstable or both–or explain how denying benefits to same-sex
    couples will reinforce heterosexual marriage. Certainly, the denial
    will not affect the gender choices of those seeking marriage
    . This
    is not merely a matter of poor fit of remedy to perceived problem,
    Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at
    446-50, but a lack of any demonstrated connection between DOMA’s
    treatment of same-sex couples and its asserted goal of strengthening
    the bonds and benefits to society of heterosexual marriage.

    I wonder how many from the opposite side of the discussion argue that there would be an increase in heterosexual marriages – by bisexuals perhaps? – if they were denied the opportunity for a homosexual marriage. Or if there is a theory from the opposite side that some heterosexual marriages by bisexual or gay men or women might survive if they believed divorcing to seek a homosexual partnership not an option. Or even if the opposite side of the discussion was interested in creating situations like this.Report