Federal judge: DOMA unconstitutional

[tko_ak]

A federal judge in Massachusetts has ruled that the Defense of Marriage Act is unconstitutional. A ruling from another federal judge in California (regarding Prop 8) is expected soon

Comments

[mathwhiz78]

California will be appealed because an anti-equality group is counsel; Massachusetts may not be if the Obama administration opts not to appeal.

Appeals

[gleef]

Yeah, California will probably be appealed regardless of who wins the ruling. If the anti-equality side wins the ruling, I'd expect the Supreme Court to decline to hear the appeal. It's exactly the sort of case SCOTUS has historically hated to hear (ie. one that hinges primarily on a statewide political dispute, rather than on the interpretation of constitutional law), so they're only going to hear it if four justices really think they have to.

As for Massachusetts, an appeal is not the decision of the Obama Administration, it's the decision of Attorney General Eric Holder. In theory he will make such a decision independently of any other voice in the administration. In practice, there's always some influence, but Holder seems to be a more independent than average AG. Given past history, I'd expect him to appeal a ruling against DOMA regardless of who wants him to drop it, he's certainly been vigorously defending it so far, citing his view of the traditional role of the Department of Justice. Perhaps I will be proved happily

Re: Appeals

[amurderofcows]

Attorneys General serve at the pleasure of the president, and can be fired by the president at any time, for any reason, without prior notice; if the president asks him not to appeal the decision, or so much as hints with the lifting of an eyebrow that he doesn't want it appealed, he won't appeal it. In a case as politically sensitive as this, the de facto final decision about whether it will be appealed is President Obama's, not the attorney general's.

Re: Appeals

[tko_ak]

Pretty much. The AG may make the "official" decision, but it's naive to think the President can't, won't, or shouldn't be involved in something so contentious.

Brookings Institute Study and Rulings

[gleef]

For what little it's worth, in 2003, American Enterprise Institute and Brookings jointly did a study of the composition and rulings of US Courts of Appeals as it related to the study's interpretation of the liberal/conservative axis. Some of the information is summarized into a ranking of circuits from most "conservative" to most "liberal" (Figure 6, Page 29). By this ranking, Circuit 9 (California, etc.) is the most liberal, while Circuit 1 (Massachusetts, etc.) is the fifth most conservative. Incidentally, they ranked Circuit 7 (Illinois, etc.) as the most conservative with Circuit 5 (Texas, etc.) essentially tied.

This study has to be taken with many grains of salt, since:

• Lots has happened since 2002, the last year that they used for data
• These courts often rule by panels, who may not be representative of the whole circuit.
• Their definitions of "liberal" and "conservative" might be only loosely related to any individual reader's understanding of the terms
• As I know you personally understand (but for the benefit of other readers)

Re: Brookings Institute Study and Rulings

[fabfemmeboy]

The 1st isn't too out-there liberal, but they're definitely not as bad as, say, the 4th (which is much much MUCH further right than the 7th FWIW). It'll probably narrow the ruling slightly but not overturn it, but if DOJ or OPM gets a bug up its ass and decides to appeal it to SCOTUS then we're likely screwed, given the conservatives' stranglehold over Kennedy these days.

Re: Brookings Institute Study and Rulings

[gleef]

Kennedy has ruled in favor of LGBT rights before, even going so far as writing the majority opinion tying sexual orientation to 14th Amedment protection. While that's no guarantee, it leaves me hope that he's at least a possible vote to strike down DOMA.The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.
    &mdash Justice Kennedy, Romer v Evans
Since DOMA acts the same way, withdrawing legal protection and rights from legally married same-sex couples, but no other married couples, I'd be shocked if the lawyer fighting against DOMA doesn't present Kennedy's own words to the court as a crucial precedent. That's got to count for something to him, even in the Roberts court.

Re: Brookings Institute Study and Rulings

[fabfemmeboy]

I'm well aware of his bona fides on gay rights. His opinion in Lawrence v. Texas had fantastic language, too. But since Alito and Roberts joined the court, his once-centrist voting record has been a thing of the past. While he used to be a conservative who would break the other way in particular cases and certain fact patterns, he has voted with or written for the conservative wing of the court consistently for the past 3 years or so, which is why I'm less optimistic about the ruling than I would have been if O'Connor were still on the Court.

[fabfemmeboy]

If by "a start of something" you mean "step one in a 10-year process," then yes.

[tko_ak]

I have no illusions that anything is going to happen over night, but you know very well that these battles start in federal district courts and work their way up through the circuits. It's a long process, but the first phase is complete.

Of course, we could argue that there could be a further backlash if we take a more judicial approach, rather than legislating it and focusing more on political reforms.

[fabfemmeboy]

There will absolutely be further backlash if we take the judicial approach - "Legislating from the Bench" and whatnot - but the problem with this issue is that regardless of which side wins on a political reform, it's going to end up in court. In DC it keeps going up through the court system because the city council first recognized out-of-state gay marriages, then acted their own. The conservatives (led by a rabid pastor who doesn't actually live in the District) keep trying to challenge the council's right to make that law in court. "Activist judges" are in the eye of the beholder, and by "beholder" here I mean the guy who lost

[tko_ak]

All very well said. One of the cornerstones of an independent judiciary in a democratic republic is protection of minorities and their rights.

[amurderofcows]

I couldn't help but note that the judge in the case is a 79-year-old Republican appointee.

[tko_ak]

Shhh. No Republicans are ever gay friendly or non-ideological.

Of course, that won't stop the religious right from screeching about judicial activism. This guy is just a RINO, appointed by a RINO, since no one can ever be conservative enough of a Republican to be a true Republican.

[john1082]

Agreed

Judicial activism: Any decision that does not reflect the readers point of view

[glo_unit]

Well he was appointed by a Massachusetts Republican, you know they can never be completely trusted.