May
31
2012

#rsrh Here we go: 1st Appeals Court strikes down part of DOMA.

Technically, it struck down Section 3 of DoMA, which prohibits federal benefits from being provided for same-sex couples married in states that allow same-sex marriage. Section 2, which allows individual states to not recognize same-sex marriages performed in other states, is still in effect.  The whole thing is under a temporary stay until the Supreme Court gets a crack at it; I assume that this will happen… soonish.

I have what can be fairly called a cynical and perverse position on this issue.  I favor SSM, as most of you know.  I also think that DoMA is blatantly unconstitutional, given that it really is in flagrant violation of the Full Faith and Credit Clause.  But it’s always been my opinion that if DoMA is completely thrown out then we’re going to see it promptly turned into a Constitutional amendment and ratified with dizzying speed.  And that’s the best case scenario.  The worst case scenario? A Federal Marriage Amendment*.  Which means that I’m stuck tacitly supporting a bad law because I’m more afraid of the alternative.  Ach, this Fallen world!

But enough about my problems; the question is, will the courts throw out everything, part of it, or none? …I suspect that Section 3 is going to be gone; and that the courts will resolutely decline to not address Section 2.  I think that this means that we’ll end up with another state/federal headache where gay couples will be in this weird Schrodinger married/not married state, depending on who’s doing the paperwork – but then, nobody asked me to fix the situation for them**.

Moe Lane

*I’m well aware that a number of my readers would reverse ‘best’ and ‘worst’ in those two sentences.  Such is life.

**Essentially? Civil unions that provide the same official tax and government benefits; a conscience exemption that explicitly includes the right of private individuals and groups to refuse services; and a blunt Life Is Not Fair to everybody who objects to either the first or the second points.  And you don’t have to tell me that almost nobody likes that solution; even my wife feels that I’m being unreasonable.  Believe you me, I’m used to being out in the weeds on this one.

18 Comments

  • Jeff says:

    Actually, I’m pretty good with that solution too. The government really shouldn’t be in the province of defining marriage, just union for whatever benefits purposes it desires. If they stuck to that, we really wouldn’t have these questions about their role in requiring anyone to acknowledge said unions. Church/State separation arguments would be solved, and we could all just move on.

  • Ric Locke says:

    You may be out in the weeds, but hey, I found a nice stalk of burdock. Care to share salad?

  • Rob Crawford says:

    Problem is, Moe, is that California had your solution in place, minus the right to refuse services (and you’d think that would be even MORE ACCEPTABLE to the activists), and it wasn’t enough. Heck, I bet your idea would be labeled “hateful” because you allow people to express their disapproval.
    .
    And, heck the North Carolina amendment explicitly left the door open for civil unions, and that was a Hate Filled Expression of Bigotry, too.

  • Emil says:

    Few people realize that there is no state granted legal benefit of marriage (inheritance, community property, next-of-kin, etc) that can’t be secured via a Revokable Mutual Power-of-Attorney that is not only legal in all 50 states but since it has nothing to do with the word marriage or union is outside all state restrictions on SSM (even in NC)*

    Those who do not believe in SSM aren’t going to magically accept a gay couple as married simply because a law is passed just as gay couples who consider themselves married aren’t going to break-up because they can’t get their relationship recognized by the state.

    By continuing the fight for “Marriage” the left is able to push this issue as a “civil right” (that those H8rs on the right want to deny you!) thus it’s a tool to win elections rather then actually helping those seeking the benefits of marriage via non-controversial and thus in the end much more effective means such as a RMPOA.

    * This is NOT legal advice – more like advice to ask your lawyer about.

  • Irascibli says:

    Curious, and no more than curious, because your position is about the most reasonable one I can imagine (as a fairly fallen Catholic who has quite enough on my plate tending to my own immortal soul):

    Which point does your better half find unreasonable? 1 or 2?

    I have no opinion. I’m just curious.

    I think Rob Crawford’s observations get to what the activists are about. They find no reward unless they can bring the pope to heel.

    • Moe_Lane says:

      Irascibli: the second part. She takes the position that smaller communities won’t have a sufficient range of alternative options. She has a point, but somebody’s going to be on the wrong side of the line of a viable compromise.

  • […] Moe Lane clarifies a bit: Technically, it struck down Section 3 of DoMA, which prohibits federal benefits from being provided for same-sex couples married in states that allow same-sex marriage. Section 2, which allows individual states to not recognize same-sex marriages performed in other states, is still in effect.  The whole thing is under a temporary stay until the Supreme Court gets a crack at it; I assume that this will happen… soonish. Seriously. Would it kill you to aid & abet a little blog-whoring?ShareTweet […]

  • Tortfeasor says:

    Rob, I wouldn’t say that there are no activists out there who want to turn this into a way to force SSM on those who have a moral disagreement–because there are–but most SSM activists and LGBT individuals simply want equal rights and recognition under the law. They see marriage for opposite-sex couples and civil unions for same-sex couples as tantamount to “separate but equal”…which I would completely agree with.

    The only way this problem gets truly solved, in my opinion, is by pulling marriage away from the government and giving it wholly back to churches and private individuals (as it should be) and using civil unions for both straight and gay couples to confer benefits, rights of property, etc. But I’d be willing to bet money that many of the same people opposed to SSM on the basis of “government shouldn’t be interfering in marriage like this” would be dead-set against government removing its tacit imprimatur from their own ‘sacred union.’

  • Tbone says:

    The Governments, both State and Federal should get out of the “marriage” business. Both hetros and homos should be required to file a civil partnership agreement setting forth their understanding of their relationship and pre-setting the requirements and agreements for dissolution. This would also eliminate the legal process of divorce and replace it the concept of winding up the partnership. With the dissolution requirements already pre-agreed, this should be a less confrontational process overall.

    If a couple wants to be “married” they can produce a “ceremony” of their choosing. Kinda like a funeral. (In more ways than one)

  • datechguy says:

    With respect the only reason why we are in this mess is because narcissistic activists wanted something and their allies in the courts went along.

    Blaming the government for not redefining words by fiat just doesn’t do.

  • Dan Irving says:

    @Tbone,

    Agree completely. If the Government (both local and Federal) want to hold the authority to oversee unions, and then take the extra step to define such unions as ‘marriage’ then they need to apply that law equally to all citizens. Not doing implicitly creates inequality.

    As for defending marriage – the biggest threat to marriage is divorce. Divorce destroys 40% of all marriages – I’d like to see ‘Teh Gheys’ top that! (BTW – interesting facts: Malta didn’t legalize divorce until 2011 while the Philippines doesn’t have civil divorce for a majority of it’s population – those with that ability probably live in Mindanao, the southern island. That state is pretty Muslim and they are allowed divorce in accordance with sharia.)

  • Skip says:

    The thing is, we already have extensive case law on how to handle marriages that are recognized in one state but not in another one. Various levels of cousin marriage are legal in some places and not others, different age requirements, and even things like various non-blood relationships are legal some places, felonies in others, and probably encouraged in Arkansas and Oklahoma. So I’ve always wondered if all of that is going to end up inadvertently thrown out as part of this.

  • Themis says:

    I’m morally against SSM but your proposal – primarily because of the conscience objection – seems reasonable to me as an American. I’d accept it, and I’m a stick-in-the-mud fundamentalist Christian.

  • Jbird says:

    I’ve said for a while, somewhat tongue in cheek, that a gay man has the same right to marriage I do, he may marry any 1 woman that will have him, same as me.

  • Irascibli says:

    Gotcha. Thanks for the answer. My sympathy for SSM advocates ends precisely at the point where they cite unavailability otherwise as an excuse to compel churches otherwise minding their own business to scratch their itch. Like the song says, “Do whatcha like but don’t do it here.”

  • jimf says:

    I think the gov’t needs to get out of the marriage business entirely…it should be between individuals by contract or similar doc and they can file it with the state if they want it enforced…. I don’t really care whom marries whom or how many of whom marries whom.

  • Ric Locke says:

    The reason nothing but “marriage” is acceptable is that homosexuals want to be accepted as “normal”. Anything that hints otherwise raises a caterwaul of “h8”. Getting Government out of marriage altogether would lead to churches calling the arrangement they sanctify “marriage” and gay alliances something else, so it’s not acceptable to homosexuals. The only thing they will accept as “h8 free” is allee same-same with heteros.
    .
    IT AIN’T GONNA HAPPEN. Oh, it’s quite possible that we could get laws in place that would compel people to accept the verbalizations in public, but it won’t change the underlying attitudes. Being homosexual isn’t a sin; homosexual activity is a sin. (Born that way? Hard on you. Some people are born blind.) Outside church definitions, homosexual activity is a perversion, wrong use of the equipment provided. That hasn’t changed and won’t change because it can’t change. Whatever neutral term is concocted to refer to homosexuals will become a schoolyard taunt in short order.
    .
    As a complex society with multiple members of different orientations on all axes, we ought to set it up for tolerance — minimum problems for everybody. Laws against sodomy need to go away where they still exist, for instance. But “tolerance” does not mean “approval” and never will; we can achieve tolerance, but approval is a matter of societal attitudes which are entirely out of the reach of Government. The only thing trying to do it that way will achieve is to set up a later “preference cascade” that will leave homosexual members of our society worse off than they are now.

  • […] absolutely no surprise the ruling out of Boston on Gay Marriage. I can’t say the same for Moe Lane’s post on the Boston ruling. I like Moe but with all due respect I simply had to laugh: I have what can be […]

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