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Fed judge rules against DOMA – twice

By Lisa Keen, Keen News Service

07.08.2010 4:49pm EDT

 

In an enormous victory for same-sex marriage, a federal judge in Boston Thursday ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act is unconstitutional.

 

In one challenge brought by the state of Massachusetts, Commonwealth of Massachusetts v. Health and Human Services, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. 

Tauro considered whether the federal law’s definition of marriage—one man and one woman—violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others.

 

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Federal judge overturns gay marriage ban passed by California voters

 

LISA LEFF, Associated Press Writer

SAN FRANCISCO, California -- A federal judge overturned California's same-sex marriage ban Wednesday in a landmark case that could eventually land before the U.S. Supreme Court to decide if gays have a constitutional right to marry in America.

 

.............................

 

Supporters argued the ban was necessary to safeguard the traditional understanding of marriage and to encourage responsible childbearing.

 

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"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," the judge wrote in a 136-page ruling that laid out in precise detail why the ban does not pass constitutional muster.

 

The judge found that the gay marriage ban violates the Constitution's due process and equal protection clauses.

 

"Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment," the judge ruled.

 

MORE: http://www.cleveland.com/nation/index.ssf/2010/08/federal_judge_overturns_gay_ma.html

 

Can someone please explain to me how a ban on gay marriage would "safeguard the traditional understanding of marriage and to encourage responsible childbearing."  Are gay couples engaging in 'irresponsible childbearing' at the moment?  Are a bunch of straight folk about to get confused on the notion of marriage if gays are allowed to marry?  I really have a hard time finding any strand of rational thought in the arguments of these supporters of Prop 8.

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He thinks that the definition of marriage should be left to the individuals.  I somewhat agree, but the state has to have some parameters so that it can deal with issues like spousal benefits, child custody, etc.

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The state shouldn't have the power to define marriage.

I thought you were a fan of state's rights.

 

States don't have the authority to override the US Constitution.  The judge ruled that Prop 8 deprived people of equality under law and due process.

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This is a complicated one for me, personally. I think prop 8 was dumb, but I also think it's one hell of a stretch to call it unconstitutional, and I doubt it will hold up when it inevitable gets to the Supreme Court (I'm sure it will be held up in the Ninth "Circus" Court of Appeals, though!).  The wording of the proposition and the wording of the equal rights clause don't appear to contradict. 

 

I don't think the state should be legislating things like this at all, but if a majority of the people there do.. then they can. 

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^If a majority of the voting public had their say in 1950s as to whether water fountains should be racially segregated, how do you think that vote would have turned out?

 

Mob rule is a dangerous thing never intended by the Constitution.  If the Constitution can't protect the minority from the will of the majority, then why have a constitution at all.  We could just rule ourselves by Statutory law (which does indeed express the will of the majority).

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I think the deeper issue is the question of whether homosexuality poses a danger to health/welfare, for if it does not, it would be nearly impossible to declare DOMA laws constitutional. I think the Supreme Court throwing out sodomy laws poses a potentially insurmountable legal precedent, in the long run, for DOMA people. IE, as a society we have already delcared homosexuality harmless, so any expression thereof is also harmless. I don't see how you could have it both ways at once.

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I can see it from that point.  What I was getting at is that the law isn't technically discriminatory or infringing upon the health/welfare of the public.  The law applies to everyone (ie a straight man can't marry a straight man, either) and sexual preference does not make for a constitutionally recognized minority.

 

I just don't see how anything can be done one way or the other on a national scale. 

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Something can be done because the feds do have the constitutional authority to mediate exchange between the states (IE crime, commerce, environment, etc), and this would one of those things that partially fell under that responsibility.

 

The argument that the law applies to everyone equally would not be sufficient, precedent as such has already been set in other kinds of cases.

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^^There is no such thing as a constitutionally recognized minority.  I think you are confusing that notion with judicially recognized "suspect classifications".  Yes, sexual orientation has not yet been declared a suspect classification, but it should be. 

 

BTW, Texas' sodomy law applied to everyone too (ie a straight man couldn't have anal sex with another straight man, either - in fact, I believe it applied to anal sex in general whether between two men or a man and a woman).  It was still held unconstitutional, so your attempt at distinguishing the situation fails.

 

What can be done on a national scale is, for one, judicial recognition that the Federal Constitution forbids all forms of government (federal, state, local) from discriminating - whether it be military service, marriage, adoption, employment, etc. - against American citizens on the basis of their sexual orientation.  We can also repeal DOMA and any other similar federal law. 

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^^I think this would be an abuse of the interstate commerce clause, but then again we’ve already allowed massive abuse of it as precedent so I could see that as being technically possible, even though I’m not a fan of it.

 

^ What I meant by constitutional minority is that race, sex, etc. are recognized within amendments, whereas there’s nothing about sexual preference.  I always thought that the Texas sodomy case was more about privacy than sexual preference… ie the state has no business making laws about what you do in your own bedroom, and I’m behind that decision 100% (no pun intended).

 

Your suggestion of what could be done on a national scale is accurate, but I'm saying I don't think there's a constitutional basis for it.  This is something that's going to have to be left up to the states or an amendment.

 

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I'd be really really suprised if the Supreme Court upholds this ruling, given the conservative makeup and trend of the current court.  I guess the question is on what grounds are they going to overrule the previous decisions and uphold the referendum.

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Isn't it amusing when someone on their third marriage declares themself a defender of the "sanctity of marriage"?

 

Newt Gingrich: Gay Marriage Ruling 'Outrageous' -- In a statement released on his website late Wednesday, former House Speaker Newt Gingrich blasted a federal judge's decision overturning California's Proposition 8 ban on same-sex marriage.

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There is no law against multiple marriages.

 

You're right. But I have to wonder why someone who apparently places little personal value on the 'institution of marriage' is so concerned about its 'sanctity'.

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Gingrich really needs a lesson on th role of the judicial branch.  "Judges who oppose the American people" (I think he defines "American people" as any consensus greater than 50%) are not "a threat to our society".... they are an essential and indisposable function of American society.  The judicial branch is the guardian of our Constitution and the principals it stands for, not the will of 50.1% of our population.... which he so losely refers to as the "American people"

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Defenders of the "institution of marriage" would do themselves well to totally separate its sanctity from state-intervention.

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Defenders of the "institution of marriage" would do themselves well to totally separate its sanctity from state-intervention.

For once I agree with you on something.

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Defenders of the "institution of marriage" would do themselves well to totally separate its sanctity from state-intervention.

For once I agree with you on something.

That goes for gays too!

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Defenders of the "institution of marriage" would do themselves well to totally separate its sanctity from state-intervention.

 

If you look at the best writing on the subject, by Andrew Sullivan, he goes out of his way to discuss this as gay civil marriage, making quite clear the distinction between the legal issue and the theological one. 

 

There are marriage fights on the religous side, but these happen within the context of denomination policy and theology (like the recent decision by, I think, the Lutherans to permit civil unions as a sacrament), not law. 

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Right, Jeffery.  The scare tactics are absurd in this debate.  We are talking about who the State recognizes as your spouse, entitled to all the accompanying legal entitlements and benefits.  No law, constitutional amendment, resolution, etc. could ever, ever make a church, temple, mosque or other religious institution recognize or not recognize a civil marriage, union, whatever you want to call it.  My mother's church is open and affirming now and no law could ever change that.  A gay couple could get married there today and the minister would perform a service, albeit her authority to do so would not be vested in her by the State of Ohio and Ohio would not recognize her pronouncement of marriage.  But nobody can stop the church from doing what it wants within its own walls and holding any recognitions it wants within its own congregation.  Conversely, other churches will be free to hold their "pray the gay away" rituals no matter how the government comes down on the issue.

 

Defenders of the "institution of marriage" would do themselves well to totally separate its sanctity from state-intervention.

For once I agree with you on something.

That goes for gays too!

 

It never ceases to amaze me how bloggers like Brietbart can convince people to arrive at his desired end result without hating themselves for it.  Social conservatives are working overtime these days to figure out methods of manipulation to use on the TP crowd and libertarians so that the ultimate goal remains the same, even if the rationale has to be painted with a different brush.  This is a perfect example.  Brilliant if you ask me.

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Defenders of the "institution of marriage" would do themselves well to totally separate its sanctity from state-intervention.

 

If you look at the best writing on the subject, by Andrew Sullivan, he goes out of his way to discuss this as gay civil marriage, making quite clear the distinction between the legal issue and the theological one.

 

There are marriage fights on the religous side, but these happen within the context of denomination policy and theology (like the recent decision by, I think, the Lutherans to permit civil unions as a sacrament), not law.

 

Yes, but the distinction of civil/religious is a false choice.  If the state didn't use marital status as a way to discriminate, all of this would be a non-issue and the warring factions would cease to bicker.  In fact, I guarantee marriage rates would increase if the state butted out of the regulating peoples' voluntary relationships business.

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Marriage is a contrived social institution that in the history of human beings is a relatively new thing and in a lot of ways goes against human nature.  I have no problem with two or more consenting adults entering into whatever kind of a symbolic or religious contract amongst themselves that they choose.  The problem begins when the state comes along and starts picking and choosing which of these contracts to recognize and give special rights to.  Heterosexual, gay, polygamist, whatever your relationship preference may be, the state should not be involved in the marriage business regarding any of those.

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GOP's Surprise Gay-Rights Push

by Anthony Woods

thedailybeast.com

Few would have predicted that Republicans would be the ones advocating to overturn "Don't Ask, Don't Tell," while Democrats cowered—including Anthony Woods, who was kicked out of the Army because of the law.

 

Thursday’s late-breaking federal court ruling out of Riverside, California, carried an element of irony in the struggle for LGBT equality in the U.S.

 

Judge Virginia Phillips ruled in favor of the Log Cabin Republicans who successfully outflanked Obama administration lawyers by arguing that the military’s “Don’t Ask, Don’t Tell” law violates the constitutional rights of gay and lesbian service members. 

 

When I was kicked out of the Army because of “Don’t Ask, Don’t Tell” in 2008, I would never have imagined that it would be Republicans championing my cause.

 

more: http://www.thedailybeast.com/blogs-and-stories/2010-09-11/dont-ask-dont-tell-and-republicans-surprise-push-for-gay-rights/

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GOP's Surprise Gay-Rights Push

by Anthony Woods

thedailybeast.com

Few would have predicted that Republicans would be the ones advocating to overturn "Don't Ask, Don't Tell," while Democrats cowered—including Anthony Woods, who was kicked out of the Army because of the law.

 

Thursday’s late-breaking federal court ruling out of Riverside, California, carried an element of irony in the struggle for LGBT equality in the U.S.

 

Judge Virginia Phillips ruled in favor of the Log Cabin Republicans who successfully outflanked Obama administration lawyers by arguing that the military’s “Don’t Ask, Don’t Tell” law violates the constitutional rights of gay and lesbian service members. 

 

When I was kicked out of the Army because of “Don’t Ask, Don’t Tell” in 2008, I would never have imagined that it would be Republicans championing my cause.

 

more: http://www.thedailybeast.com/blogs-and-stories/2010-09-11/dont-ask-dont-tell-and-republicans-surprise-push-for-gay-rights/

 

I think it's way, way premature to say that "the GOP" is pushing for the revision of laws that enforce discrimination against LGBT people; I don't know many in the GOP who think the Log Cabin Republicans speak for the party. Outside of this case, and Ted Olsen's work on Prop 8 in California, I'm hard pressed to think of another time when a Republican spoke out heartily, much less acted on support for people who aren't heterosexual. 

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FYI: Ohio is the stage for the only referendum on GLBT rights (among others) in the US this November. You can support the effort to get two ordinances passed in Bowling Green that would protect LGBT, veterans, pregnant women and others from discrimination in housing, employment, public accommodation and public education by visiting www.onebowlinggreen.org, and, perhaps, donate your time or $$?

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The vote is tomorrow (2:15pm); please tell your senators to vote with Sen. Reid and Sen. Carl Levin in opposing the filibuster, defeat amendments to strike repeal, and defeat any crippling amendments.

 

Senator Brown's number: (202) 224-2315

Senator Voinovich's number: (202) 224-3353

 

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Looks like this DADT repeal didn't pass.  I think when it comes down to it we may have to rely on the courts, seeing as how the GOP is so beholden to the social conservatives (and some Democrats, too). 

 

All this talk of how the GOP is getting "over it" re gay rights.  I don't think so.....

 

 

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A particularly homophobic op-ed in the Washington Times, particularly the concluding remarks

 

Gambling With Our Security

 

While in the interest of promoting sanctimonious notions of "tolerance" and "diversity," we dress up our military like Poochie poodle in a pink sweater, Iranian, North Korean and Chinese pit bulls bark at the gate.

 

While we work to "gay"-down our historically unparalleled fighting force to mirror those of Canada, the Netherlands and Switzerland, our nation's single-minded enemies ramp up intense combat training and military spending.

 

Progressives have had their fun, but the grown-ups are pulling into the driveway. Defense-minded conservatives must take charge in November. If they don't, America's historic stand as the world's dominant military superpower may indeed fall.

 

 

[/i]

 

What we are seeing is how the military's surveys of the troops is going to be used as part of the political pushback against repealing DADT. 

 

The question is how benchmark militaries, the ones as effective as ours is, are handling the issue.  I'm thinking of then UK military (which is also a volunteer military) and the Israeli military (who are pretty tough, but a conscript army).

 

It's remarkable the how low conservatives will go on this issue.

 

 

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Maybe the fact that they could not get one single republican vote for the repeal of DADT?  There always is DOMA and EDNA as well.  Here fishy, fishy...

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If DADT is taken off the table as an issue, with what will the Democrats bait gays?

This is preferable to the GOP MO, baiting homophobes.

 

I met two gay Republicans last night and the cognitive dissonance was so great that my head nearly exploded.

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I met two gay Republicans last night and the cognitive dissonance was so great that my head nearly exploded.

 

You should check out the gay bars here in Dayton.  You'll meet some fabulously right-wing gays.  Totally GOP.  Hated the Clintons.  Handslapping and Toasting themselves across the bar when Bush beat Kerry.  I used to get into arguments with them all the time...called them akin to being Jewish Nazis.  But that was unfair. 

 

At first I put it down to some sort of wierd interalized homophobia/identifiying with the oppressor thing.  But I'm not so judgemental now. 

 

I see this as sort of like being gay and coming out of a religous background.  Where you have these gay Catholics, Baptists, Mormons, what have you, who form these renegade denominational groups like Diginity, that are not recoginzed (or recognized as apostasy) by their original denominations, but these guys & gals still believe.  Or they are sort of like me, coming out of a (in my case) Catholic background, and are still somewhat culturally Catholic (& even a bit theologically, too), but are not affiliated with the Church anymore and don't go, but still somewhat identify with that particular faith or denomination.

 

Same I guess with the right wing Gays.  They could retain the political/ideological affliation or identity even though the "Party"  (the Republican Party) rejects them or adopts platform planks and legislation diametrically opposed to their interests as gays or lesbians.

 

There are probably a lot more less ideological gays who would be closer to "buisness Republicans" and "national security conservatives" if the GOP would drop their anti-gay agenda (ie oppostion to gay civil marriage, DADT, adoption rights, even antidiscrimination protections). 

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There are probably a lot more less ideological gays who would be closer to "buisness Republicans" and "national security conservatives" if the GOP would drop their anti-gay agenda (ie oppostion to gay civil marriage, DADT, adoption rights, even antidiscrimination protections).  

 

Maybe there would be a lot of gay Republicans who switched parties if the Democrats dropped their anti-business agenda. ;)

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I'm gay and I vote for as many Republicans as I do Democrats.

Just because one party says they are for something doesn't mean they actually will do it.  Checking the scoreboard, DADT was a Clinton policy, and he signed the defense of marriage act.  Is Bill Clinton a gay hater?  I don't think so.

 

I do resent the fear mongering that Democrats use "{Minority group} if you don't vote for me, those bad guys will get you.  We are your only hope"  Its done with African-Americans, Latinos, and the Gays.

 

With a filibuster proof majority in the senate, overwhelming majority in the house, and a Democratic president, what did they do?  Is DADT still the law of the land?  Has the defense of marriage act been repealed? 

 

It doesn't matter what they say, it matters what they do.

 

I will also throw in my resentment of straight people who think that because I am gay, and I choose one candidate over another, and they don't approve of my decision, that I have deep seeded emotional problems.  Or I am some sort of sell-out.

 

By no means are the Karl Roves of the world good people.  The Republicans have more idiots about gay issues in their party than the Dems.  But remember Dick Chaney was for states deciding for themselves if gay marriage should be legal well before a lot of Democrats were.

 

In closing, if you don't like who I vote for, go f*ck yourself.

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Gays are crazy to vote for (the vast majority of) Republicans.

 

I am not exactly happy with this administration re:DADT, but 1) if any Republican at all voted for the repeal, it would be gone right now, and 2) yes, there was a filibuster-proof majority...for a month and a half (7/7-8/25/09!!!) between the fight to get Al Franken seated and the death of Ted Kennedy.

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You have to compare DADT with the situation that existed before. Based on suspicion, rumor, or stereotyping, the various services' investigative agencies would snoop into people's personal lives, question their friends and acquaintances, and sometimes tail them when they left the military installation to try to get the goods on them. In the USAF when I served (1962 - 1966) the agency was the OSI (Office of Special Investigations). I worked for a civilian supervisor in Base Finance at Dover AFB whose husband was an OSI guy. All he could talk about was tracking down and busting queers. He gave me the creeps; every time I was around him, it was more than just my gaydar (which has always been very acute, by the way) going off; I had the feeling he was raping me in his mental fantasy. I always wondered how many guys he had sex with before busting them.

 

I knew of men who were discharged "under other than honorable conditions" (there was no such thing as a "dishonorable discharge" in the USAF when I served) because they were found out to be gay. I knew of men who were arrested by civilian authorities for felonies (i.e., armed robbery) and were given general discharges (convenience of the government) in order to be sent to prison by civilian authorities.

 

Initially Clinton wanted to remove sexual orientation as a basis for rejection or discharge from military service, but a few powerful reactionary senators and officers blocked that. DADT was supposed to be a compromise; "Keep your personal life personal, and we won't snoop into it." Not all the homophobes in positions of authority were willing to abide by the new rules though.

 

My experience in the USAF, various civilian workplaces, and even in churches, has been that among the most vocal, stridently homophobic men I've encountered, a large number subsequently have either turned up in a gay venue (bar, party, rally, etc) or have been arrested after literally being caught with their pants down in a rest area, city park, shopping-mall restroom, etc.

 

If you want to know someone's darkest, most deeply-buried, unresolved personal issues, pay attention to what he professes to hate.

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I do resent the fear mongering that Democrats use "{Minority group} if you don't vote for me, those bad guys will get you.   We are your only hope"  Its done with African-Americans, Latinos, and the Gays.

 

I resent the idea that African-Americans, Latinos, etc. can't possibly be voting what they consider their interest to be, but are simply responding to fear-mongering.  That's a terribly insulting way to view other people.  How come when you vote you are able to see through fear mongering, but others aren't?  It really says a lot more about you than it does about either the Democrats or the legions of people whom you dismiss.

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