Walker's decision was about much more than marriage

[dsc]

There are two currently successful challanges to bans on marriage equality working their way through federal courts. One is the case from MA which overturned the portion of DOMA which treats gay married couples differently on the federal level than straight married couples. It was won basicly on 10th amendendment grounds (state's rights) by causing states to violate their own equal protection clauses by discriminating against gays. He did also state that irrational prejustice can never be a legitimate government interest. It used the rational basis test to determine that DOMA unconstitutionally discriminated against gays.

Walker did state that prop 8 wouldn't have met rational bais but he decided that laws which discriminate against gays need to have strict scrutiny applied to them. This is a much different standard. Rational basis means that if a law can be at all related to a governmental interest, no matter who tenuously, then it is constitutional. It is rare for governments to lose under this test. In point of fact, we have won only one case at the SCOTUS level under this test (the Issue 2 case out of Colorado) where Kennedy redefined the test to exclude simple religous distaste for gays as being rational. To take an example, governments may, and do, discriminate against cigarette smokers. In my state, they now are forced onto the lowest benefit plan if they are state employees. That is because the action is related to saving money on insurance. They could never to this to say women, or hispanics even if they were shown to cost the state more money to insure. That is because actions discriminating on the basis of race and gender are given a different level of scrutiny than those discriminating on the basis of tobacco use or being overweight.

Strict scrutiny is a much tougher standard. Under strict scrutiny, government must have a compelling interest and the action must be the only way the government can accomplish that interest. In other words, rational basis says the government must have some reason and that the action must be related to that reason. Strict scrutiny says the government must have a really good reason and that the action must be absolutely necessary to accomplish that goal. This is a very difficult standard to meet. To return to the tobacco using workers. The state could pay for smoking cessation classes. The state could tax cigarette companies to pay for the health care of state employees who smoke. They could get rid of all health insurance for their employees. Under strict scrutiny the fact that those alternatives exist would be enough to make the action unconstitutional.

It is hard to see a state government refusing to hire gays surviving strict scrutiny on either side of the test. On the otherhand, it likely would survive a rational basis test. A state could simply say they refuse to hire gay employees because the citizens of their state don't wish to have gay employees and that might well be enough. Add in an insurance differential or some other possible higher cost and bye bye gay employee. Walkers opinion, if it stands, could well end the gay rights battle with complete or near complete victory for gays. It is that big a deal.

[customerserviceguy]

1. There's one more thing needed for complete victory

While I thought it might be part of the Massachusetts case, further reading shows that it is not. The part of DOMA that says that states don't have to recognize same-sex marriages coming from places where it is legal is the one I want to see challenged under the full faith and credit clause of the Constitution.

There's a significant chance that the CA case may not make it up to the Supreme Court. Both Jerry Brown and Ahnuld have said that they're not going to appeal Judge Walker's decision, and if the Ninth Circuit rules that the nincompoops who fought against equality have no standing to bring an appeal, the judicial process stops right there. California simply becomes the 6th state to allow equal marriage, and it doesn't transport across state lines.

DOMA was a containment strategy more than anything else. The denial of Federal benefits to opposite-gender couples was just frosting on the cake for fundies who were fearful of both the Alaska and Hawaii Supreme Courts. It's a bit ironic that neither of those generally live-and-let-live places still don't have equality.

[dsc]

2. If his decision were to make it to SCOTUS I think it could kill DOMA

I can't see DOMA surviving strict scrutiny.

[customerserviceguy]

3. DOMA has two parts

Like most laws, you can kill off one part, while leaving the other intact. If the issue of the transportability of same-gender marriages is not before the Court, it will not be argued, and will not be decided upon.

I agree that the part of DOMA that will make it through the courts will not survive, the Federal Government has long treated the states as the places that define marriages. A heterosexual couple of first cousins from a state that allows such (like New York) who move to a state that doesn't allow it (like Kentucky) does not automatically lose Federal benefits, and their marriage is recognized as valid by the state they moved to.

We need a Federal court challenge to the other part of DOMA, as well. I'm a bit surprised that a couple hasn't moved from Massachusetts to another state and challenged the laws there.