That view is mistaken and I'm retracting that position. I still have questions about the effects of DOMA repeal on the states, as noted in my earlier post, "I'm Reading Around on the Defense of Marriage Act." However, folks should read this amicus curiae brief from the Eagle Forum Education and Legal Defense Fund, "BRIEF AMICUS CURIAE OF EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND, INC., IN SUPPORT OF RESPONDENT BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES IN SUPPORT OF REVERSAL ON THE MERITS."
One of my questions that's now been answered is how, as I mentioned, would states be affected by married same-sex couples of a state who relocate and then make claims on another state that does not recognize homosexual marriage? Actually, there could be dramatic effects, if the Eagle Forum brief is accurate --- and it makes a powerful case in any event. Homosexual married federal employees who reside in a same-sex marriage state who then move to a state recognizing only opposite-sex marriages could then claim a violation of their rights under DOMA, and hence force the recognition of homosexual marriage on a state whose political system has rejected the redefinition of the institution. It's telling, then, that the Washington Post has this just now as I'm drafting this entry, "Federal employees in same-sex unions look to Supreme Court to overturn DOMA."
In any case, here's the key section at the brief, "As a Practical Matter, Rejecting DOMA Would Spread Same-Sex Marriage Nationwide":
Although Windsor and her allies often seek to minimize the issues at stake in challenging DOMA §3, the impact of the Second Circuit’s decision – and of any decision by this Court to affirm that decision – simply is not limited to Windsor’s tax liability or even a relatively few couples in New York and a few other states. The question of whom society allows to marry does not affect only the wedding couple.Be sure to RTWT. It's a very compelling argument.
Even without the direct force of law, federal employees with federally recognized, same-sex marriages from a few states will spread across the Nation when they are re-posted, transferred, or simply move. They will take with them not only their federal recognition, but also various property rights such as pensions, as well as child-custody issues. When they move to states that do not recognize same-sex marriages, they will raise countless substantive and procedural issues, as well as the sheer weight of practical problems that the differing legal regimes will present.
These issues posed by same-sex couples will arise when federally regulated persons such as federal employees and contractors either (a) move from one of the few same-sex marriage states to a state with a husband-wife definition of marriage, or (b) visit same-sex marriage jurisdictions (like Windsor here) while domiciled in states with a husband-wife definition of marriage. The latter category will require still further litigation to determine DOMA’s application to such “destination marriages” by non-domiciliaries. Whenever federal law recognizes a marriage that state law does not, the conflicts that the differing regimes pose will be magnified.
Now, here are the editors at the New York Times, who're going all cultural Marxist for the left's family-destruction agenda, "A 50-State Ruling":
California’s Proposition 8 rewrote the state’s Constitution so that “only marriage between a man and a woman is valid or recognized in California.” The 1996 Defense of Marriage Act, for purposes of any federal law, defined the word marriage to mean “only a legal union between one man and one woman.”Keep reading. The editors are making a radical call to stop the political process now moving toward greater acceptance of homosexual marriage across the land. A sweeping ruling like that endorsed by the Times will only radicalize and polarize the debate, and thus prevent the likely accommodation of all sides through the federal system. What a disaster.
The Supreme Court will hear arguments on challenges to Proposition 8 on Tuesday and Defense of Marriage on Wednesday. In both cases, the court should rule that the Constitution prohibits the federal government and every state from defining the fundamental right of marriage so narrowly and fully protects the liberty of same-sex couples.
When Proposition 8 was on the California ballot in 2008, the official pamphlet explaining the initiative said that it did not “take away any rights or benefits of gay or lesbian domestic partnerships,” which have the “ ‘same rights, protections, and benefits’ as married spouses.”
As the California Supreme Court said about legal attacks on same-sex marriage, the point of denying gay marriages was to say officially that these relationships were not of “comparable stature or equal dignity” to opposite-sex marriages. The intent was to stigmatize them, enshrine discrimination in law and encourage discrimination against gay men, lesbians and same-sex couples. The federal Defense of Marriage Act does the same, with the same effects. And in depriving same-sex couples and their children of federal recognition and benefits, it fails to meet any test under the Constitution.
Compare the Times to the Wall Street Journal's editorial board, "Marriage and the Supreme Court":
This week the Supreme Court takes up same-sex marriage, amid shifting American mores and a healthy debate about equality. Yet the two cases before the High Court are less about the institution of marriage than the sanctity of democratic institutions and the proper role of the courts.Also notice the discussion of upholding DOMA at the piece.
Over time, through popular consent, the law comes to reflect an evolving social consensus. On gay marriage, state by state, election by election, voters are extending to gay and lesbian couples the same rights and responsibilities that pertain to a union between a man and a woman. Those choices are the pith of self-government, even if fair-minded voters in other states preserve the traditional meaning.
If the Supreme Court now reads a right to gay marriage into the Constitution and imposes that definition on all states, it won't settle the debates Americans are conducting. It will inflame them and ensure they never end, prematurely aborting the give-and-take on contentious moral and social issues the Constitution is designed to encourage. Five Justices—or fewer, if they split into pluralities—could further polarize the body politic and make compromise more difficult.
Today's my long day at the college, but I'll have more blogging tonight.