A Quick Review of DOMA and The Constitutional Clauses it Violates

[bluedawg12]

A Quick Review of DOMA and The Constitutional Clauses it Violates

If I understand this correctly, as a lay person, in 1996 the Federal Government passed a law called DOMA absolving one State from being forced to recognize a same sex marriage in another State.

It also prohibited the Federal Government from recognizing such a marriage from any State. This impacts federal pensions, benefits, spousal social security benefits at death and about 1200 other rights and benefits.**

By absolving States from having to recognize same sex marriages from States that permitted them, they went against something called the Full Faith and Credit clause, which in my laymen’s understanding is a clause meant to prevent a patchwork of conflicting laws across the nation. But, now with DOMA, on can get married in Massachusetts and have be meaningless in other States.

It also violates the Equal Protection Clause, which should guarantee equal rights under law to “discrete and insular minorities.”

It is also violates Due process, which protects the rights of “discrete and insular minorities.”

If this weren’t enough, they still want to pass an actual amendment to the Constitution banning same sex marriage?

So, if as promised, PE Obama will work toward the repeal of DOMA where does that leave marriage equality for gays? Marriage is still something done at a State level. The Feds don’t grant a marriage license, States do.

If I am still tracking all of this correctly, then, what needs to be done:

1.) Repeal DOMA
2.) Work to repeal the mini -DOMA’s in States where they exist.
3.) Take legislative action pro-gay marriage equality in States where there is no mini DOMA yet.

It will be up to President Obama and the Congressional Democrats to repeal DOMA.

Then, it will take State and local efforts to legislate pro-gay marriage laws in States not mini-DOMA infested.

It will take legal action from groups like Lambda to fight to reverse anti-gay legislation in States where mini DOMA already exist.

http://en.wikipedia.org/wiki/Defense_of_marriage_act

The Defense of Marriage Act, or DOMA, is the short title of a federal law of the United States passed on September 21, 1996.

The law has two effects:

No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.

The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

The bill was passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives, and was signed into law by President Bill Clinton on September 21, 1996.

At the time of passage, it was expected that at least one state would soon legalize same-sex marriage, whether by legislation or judicial interpretation of either the state or federal constitution.

Opponents of such recognition feared that the other states would then be required to recognize such marriages under the Full Faith and Credit Clause of the United States Constitution.

Including the results of the 2008 general elections:
two states (Massachusetts and Connecticut) allow same-sex marriage
five states recognize some alternative form of same-sex union
twelve states ban any recognition of any form of same-sex unions including civil union twenty-eight states have adopted amendments to their state constitution prohibiting same sex marriage
another twenty states have enacted statutory DOMAs.

The following excerpts are the main provisions of the Act:

Powers reserved to the states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Definition of 'marriage' and 'spouse':
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Critics of DOMA argue that the law is unconstitutional on several grounds:

Congress over-reached its authority under the Full Faith and Credit Clause.
The law illegally discriminates and violates the Equal Protection Clause.
The law violates the fundamental right to marriage (including same-sex marriage) under the due process clause.

http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause

The Full Faith and Credit Clause

Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the "public acts, records, and judicial rulings" of other states. According to the Supreme Court, there is a difference between the credit owed to laws (i.e. legislative measures and common law) as compared to the credit owed to judgments.<1> Judgments are generally entitled to greater respect than laws, in other states.

The clause has been the chief constitutional basis for challenges to the DOMA.

As of early 2004, 39 states have passed their own laws and constitutional amendments, sometimes called "mini DOMAs," which restrict marriage to opposite-sex couples. Most of these "mini DOMAs" explicitly prohibit the state from honoring same-sex marriages performed in other jurisdictions.

Supreme Court Justice Antonin Scalia stated in his dissenting opinion to the Lawrence v. Texas decision that he feared application of the Full Faith and Credit Clause to the majority's decision in that case might destroy "the structure... that has permitted a distinction to be made between heterosexual and homosexual unions." If Scalia's dissenting opinion holds true, the majority ruling could potentially negate the DOMA and create a legal situation in which all states might eventually be obliged to recognize same-sex marriages performed in Massachusetts or Connecticut.

In August 2007, a federal appeals court held that, "Oklahoma's adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples."

http://en.wikipedia.org/wiki/Equal_Protection_Clause

The Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws".<1> The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal"<2> by empowering the judiciary to enforce that principle against the states.

For a lengthier look at the EPC:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=221&topic_id=98255&mesg_id=98255
A Quick Review of Equal Protection Clause and It's Application to Gay Rights.

http://en.wikipedia.org/wiki/Due_process

Due process
Due process (more fully due process of law) is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land, instead of respecting merely some or most of those legal rights. In the laws of the United States (U.S.), this principle gives individuals a varying ability to enforce their rights against alleged violations thereof by governments. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions.

Substantive due process basics
Courts have viewed the due process clause, and sometimes other clauses of the Constitution of the United States of America, as embracing those fundamental rights that are “implicit in the concept of ordered liberty” (Palko v. Connecticut). Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear.<21> Some of those rights have long histories or “are deeply rooted” in American society.

Today, the Court focuses on three types of rights under substantive due process in the 14th amendment. These categories originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are: the substantive rights of the accused (e.g. the Eighth Amendment), restrictions on the political process (e.g. the rights of voting, association, and free speech), and the rights of “discrete and insular minorities.”

**For more info on Federal rights conferred through marriage check out Pelosi Fan’s excellent thread:

PelosiFan Mon Nov-17-08
"Categories of Laws Involving Marital Status - This is Not a Single Issue ."

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=4480012&mesg_id=4480012

[HillWilliam]

1. One good first step

is having the CA supreme court to opine correctly. We need a one good, solid legal footing in order to go forward. I believe they will; I doubt that they will cite the not only the correct California reasoning, but the correct federal reasoning. That is absolutely essential to go forward. Of course, the wackogelicals' heads will explode, but that will only increase my pleasure.

This process is absolutely comprised of baby-steps. There are many, many to be taken. That is how law works. But it is up to us how quickly we take them. I say, let's get through the California decision then run like hell.

[bluedawg12]

3. Absolutely! They should stand by their previous decision.

I understand that is coming up in March. I think that's the next big event.

Talking with someone about NY, in another thread, it still sounds like the Dems are going to bring it up in NY in 2009 after all, for legislation! :fistbump:

If, please hear me oh universe, we got California and NY by the end of 2009 AND the repeal of DOMA say 2010, is that asking too much? I think not.

I can see how the snowball effect of more and more States doing the right thing for gay justice and how that can build a legal precedent.

Just think about how things have changed when back in 1996 the pundits and rw theofascists were talking about DOMA and abiut us gays as if we were some invisible, non-human entity,just there for their punching bag amusement. NO more!

[Manifestor_of_Light]

2. I said this already. Nobody on TV brings up the Constitutional issues.

Full faith and credit clause.
Due process clause.
Equal protection clause.

And in California: Ex post facto clause (twice in the U.S. Constitution - prohibited by the Feds and by the states).

[bluedawg12]

4. The pundit class and newsreaders like to stir the drech

they either talk about the gay issue as some moral titillation or, currently, in their momentary pro-gay mode, they focus on protests and other human interest things.

Let's face it the news blows and while there plenty of legal experts out there who could do a dandy job of explaining the legal travesty of majority rule and laws disenfranchising gay people, it doesn't fit neatly into their 15 sec allotted time for a photo of some street scene and then that's it for their coverage of gay rights.