This is going to get tricky over the next decade. DOMA has seemed unconstitutional to me and so I'm glad step one in removing it has happened. But now we have to wait and see what the Circuit Court and possibly the Supreme Court have to say.
Where it gets more murky is that the same basic reasoning that struck DOMA down can be used to uphold a states own ban on gay marriage in the face of a federal constitutional challenge. If constitution firmly places the definition of marriage in state hands, then it won't be the province of the constitution to say that gay marriage is a matter of federal right. Which will leave an equal protection challenge as the likeliest avenue in federal court and that will have a harder time succeeding than past equal protection challenges that were based on race since race based discrimination is harder to get away with, legally speaking, than other forms of discrimination and so non-race based discrimination is harder to use as the foundation to strike down a law such as a state's ban on gay marriage.
It might help, depending on what basis and jurisdiction those precedents come from, but I doubt very much anything will ever be held to the same 14th amendment scrutiny as race based discrimination.
If, whenever such a case makes it to the Supreme Court, they can actually convince them it's an issue of sex discrimination, as opposed to sexual orientation, then the chances of a federal constitutional ruling that requires gay marriage be legal becomes massively more likely. If not, then sexual orientation has to be argued to be, essentially, something more worthy of protection than almost every other kind of classification. Under 14th amendment law at least. And, assuming an intellectually honest court, that would be a really hard argument to win.
Jobs, housing, etc - the protected classes there are federal.
The Equal Protection Clause of the 14th Amendment is where we're ultimately heading, I think. Loving v. Virginia (1967) is a really strong precedent on marriage discrimination of any kind.
Loving is the natural hope, but the point I'm mostly making here is that Loving was race based discrimination and there are no classifications in federal constitutional law that are as protected as race and I doubt there ever will be.
None that are as protected as race, but several that are close. I believe that this is one of the close ones. The precedent cases are just so, so similar, and the protection precedents are there in a lot of places too.
Crossing fingers.
(Are you a lawyer, btw? I don't think I've ever asked)
I'm not, and always appreciate pointers when my knowledge of the law is weaker than it should be. I have a lawyer in the house to help educate me, and I've been actively working on gay rights campaigns for years, but there's always new things to learn.
The right vs left issue is one of the reasons I love this case so much. Many of the folks who oppose gay marriage in general are strong supporters of state's rights, and I love it when the traditional lines and motivations get muddy.
I agree that time will ultimately solve things with the country's tilt - I'm just impatient, and want it sooner. Soonest. Yesterday would be nice, and last week would be peachy. :-)
Where it gets more murky is that the same basic reasoning that struck DOMA down can be used to uphold a states own ban on gay marriage in the face of a federal constitutional challenge. If constitution firmly places the definition of marriage in state hands, then it won't be the province of the constitution to say that gay marriage is a matter of federal right. Which will leave an equal protection challenge as the likeliest avenue in federal court and that will have a harder time succeeding than past equal protection challenges that were based on race since race based discrimination is harder to get away with, legally speaking, than other forms of discrimination and so non-race based discrimination is harder to use as the foundation to strike down a law such as a state's ban on gay marriage.
Reply
Reply
Reply
If, whenever such a case makes it to the Supreme Court, they can actually convince them it's an issue of sex discrimination, as opposed to sexual orientation, then the chances of a federal constitutional ruling that requires gay marriage be legal becomes massively more likely. If not, then sexual orientation has to be argued to be, essentially, something more worthy of protection than almost every other kind of classification. Under 14th amendment law at least. And, assuming an intellectually honest court, that would be a really hard argument to win.
Reply
The Equal Protection Clause of the 14th Amendment is where we're ultimately heading, I think. Loving v. Virginia (1967) is a really strong precedent on marriage discrimination of any kind.
Reply
Reply
Crossing fingers.
(Are you a lawyer, btw? I don't think I've ever asked)
Reply
Reply
I'm not, and always appreciate pointers when my knowledge of the law is weaker than it should be. I have a lawyer in the house to help educate me, and I've been actively working on gay rights campaigns for years, but there's always new things to learn.
The right vs left issue is one of the reasons I love this case so much. Many of the folks who oppose gay marriage in general are strong supporters of state's rights, and I love it when the traditional lines and motivations get muddy.
I agree that time will ultimately solve things with the country's tilt - I'm just impatient, and want it sooner. Soonest. Yesterday would be nice, and last week would be peachy. :-)
Reply
Reply
Leave a comment