reply to post by seagull
In regards to DOMA, which really isn't defense of the act of marriage or even saying that only a man and wife can be bound legally, but rather the
defense of the word "marriage" and "spouse" as it pertains to the Federal government and its use in legislation. That particular portion of U.S.C. is
1 USC § 7 - Definition of “marriage” and “spouse”
In full it reads:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word
“spouse” refers only to a person of the opposite sex who is a husband or a wife.
The argument here (and until we see merits and amicus briefs, it is speculation) should be more on the "spouse" portion of that particular piece of
law. It is there that I feel is best argument to be made. Do remember that "DOMA" pertains to the legal definition of how the Federal government
utilizes the word when placed in "any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and
agencies of the United States".
That case is Windsor v. United States, which held that section 3 of the Defense of Marriage Act was unconstitutional (it is noted that in the Act, it
is Section 3 and as coded it is 1 U.S.C. Section 7 as linked above). Their argument was specific on the definition of "marriage" and the equal
protection clause of the 5th Amendment. Specifically, if they are legally married in a State that has same-sex marriages, they should be afforded 5th
Amendment protection in other states.
Ultimately, the government's argument in defense of the section is that it only applies to federal statutes and programs. In that case, if States
enact legislation that brings same-sex marriage into its fold or even if they don't, but still recognize a legal contract (same-sex marriage) of a
union, that couple, no matter what state they are in, are excluded from federal programs that pertain to marriage status of "married".
Several things to note:
-- This case isn't about same-sex marriage. This is about equal protection under the law and access to Federal benefits and programs for same-sex
couples that are legally married in states that have such provisions.
[Removed] found information otherwise.
It will be interesting, but this particular case, has little to do with settling if States have the ability to not recognize same-sex marriages. That
case is the other in this, Hollingsworth v. Perry. I will give my summary on that one later.
From the petition for writ of certiorari, the court recognizes the following in terms of DOMA:
(Caps carry over from the petition; sorry I am not trying to make emphasis here)
DOMA DOES NOT, STRICTLY SPEAKING, “PRESERVE” THE INSTITUTION OF MARRIAGE AS ONE
BETWEEN A MAN AND A WOMAN. tHE STATUTE CREATES A FEDERAL DEFINITION OF MARRIAGE. bUT THAT DEFINITION DOES NOT GIVE CONTENT TO THE FUNDAMENTAL RIGHT TO
Post Post Script:
My prediction regarding this particular case. The Court will not rule on anything to do with the "fundamental right to marry", that isn't the scope
of this case. Instead, they will rule that the language of DOMA be removed and Windsor will receiver her justice in regards to her late partner. The
only reason I cannot see this happening is if the Supreme Court finds some failed logic in the District Court of Appeals ruling.
11-12-2012 by ownbestenemy because: (no reason given)