Supreme Court Strikes Down DOMA

The U.S. Supreme Court
The U.S. Supreme Court
As many of us predicted, Justice Anthony Kennedy supplied the fifth vote today to strike down the Defense of Marriage Act (DOMA).  I just returned from offering legal analysis in front of the Supreme Court (and roasting in the DC summer weather with CNN).  I will be discussing the case tonight with BBC.  The surprise was not in the outcome or the split but the scope of the decision.  Kennedy could have rendered the same decision on a narrower basis but chose to render a more expansive endorsement of the constitutional protections for gay couples.  These are marriages, plain and simple, and cannot be simply discharged by Congress. Kennedy wrote: “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty.”


As I discussed on CNN, I was most struck by the more small minority of justices on the Court that view such laws as justified on morality grounds. That view is now argued almost exclusively by Justice Scalia and Justice Thomas.

Kennedy’s decision is a sweeping victory for the equal protection of couples regardless of gender. He writes:

By creating two contradictory marriage regimes within the same State, DOMAforces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriagesare unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the Statehas sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Scalia was equally passionate. Indeed, when Jake Tapper noted on the air with me that he hasn’t seen a dissenting opinion with this type of heated language, I almost added “since the last Scalia dissent.” Scalia was at his signature best of venting his anger:

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congressand the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.

The Proposition 8 decision was a win by default for the couples on standing grounds. However, it effectively kills everything on the docket after the district court order. That leaves the state open again for gay marriages.

Here is the decision in Windsor: 12-307_g2bh

Here is the decision in Hollingsworth: 12-144_8ok0

142 thoughts on “Supreme Court Strikes Down DOMA”

  1. Bob, why ar yuo so parrownoid? I haev the hutmost respuct for yuo, adn concider yuo two bee a prespicacious, intellighunt, and hihly combpashunate indevidual.

  2. Ralph,

    Are you…trying to hurt my feelings? Please say it isn’t so.

    Turns out you’re not so good at that either.

    Your best one was something about “add nausea,” which you are good at, but like the rest of the subcretins here, I couldn’t comprehend it.

  3. Yuor argoments are incredulouslly powherful and persusive. I am lurning meny tings from the wize posturs on thiss wunderfull blug.

  4. Darren,

    I thought I was the only one who saw “Summer Lovers”. And stop giving away the secret about the free French women, man. There’s enough tourists as it is. 😀

  5. It’s “ad nauseam” ralph, or so our severe mental impairments tell us.

  6. Bob, redundancy is necessary when dealing with subcretins with little ability to reason, so perhaps even you, with your severe mental impairments can grasp the need to have things repeated ad neasum to you. And many a word is invented. Yes–“Subcretin” is not an official word, nor is “lardenous,” but they are perfect choices nonetheless and are readily understood, even when used in a less than complete context.

    1. Ralph,

      What is most striking about you is your humility and kind disposition towards others. A man with a really big heart and brain. Then again maybe with you knowing my political leanings my judgment of your character should be taken with a grain of salt, or even totally discounted.

  7. Mike Observed:
    “Many a Gay woman wanting to seduce her straight friend has talked their friend into accompanying them to Lesbos ….. I saw the proof in a movie on the “Playboy Channel”, real evidence if you ask me.”
    ~+~
    Sadly, I missed that one but I am sure it is true because I read it on the internet and they cannot put anything on the internet that isn’t true.

    I also saw on the movie “Summer Lovers” that if a guy takes his girlfriend to a Greek Island named Santorini, he can experience the gratuity of a complimentary French Chick. So, the proof is, Women go alone become lesbian, Straight couples get a free French woman. But what happens if a man goes there alone? I hope it isn’t like Turkey and you go to a Turkish Prison.

    1. Darren,

      It’s true about Santorini and threesomes. Also the Lesbian effect is real. When the volcano there blew and destroyed Crete about 1,500 BCE, the remaining Cretan women fled to Santorini. Cretan women went topless because they were Lesbians who were into threesomes with males. They infested Santorini and to this day the island remaining after the volcano has been a sexual paradise. This was all discovered when they learned to decipher the Cretan writing know as Linear C. and discovered it was all gay pornography.

  8. Another confusing set of decisions (or non-decisions) by the US Supreme Court on Gay Marriage.

    http://news.yahoo.com/court-rejects-gay-rights-cases-ariz-nev-135355306.html

    PHOENIX (AP) — Gay marriage proponents marked another victory Thursday after the U.S. Supreme Court rejected appeals from Arizona and Nevada involving the rights of same-sex couples.

    The justices let stand an appeals court ruling striking down an Arizona law that made state employees in same-sex relationships ineligible for domestic partner benefits. The Nevada case was a challenge to the state’s ban on same-sex marriage. The court did not elaborate on the reason for not taking up the cases.

    The court’s decisions on the two cases are not as sweeping as rulings Wednesday that made it a landmark week for gay rights. The Supreme Court issued decisions that struck down a provision that denies federal benefits to married gay couples and also cleared the way for state laws that recognize marriage equality.

    In Arizona, the decision means dozens of same-sex state workers will be allowed to keep employee benefits. For the Nevada case, the gay marriage ban will remain intact, and the 9th U.S. Circuit Court of Appeals in San Francisco will decide the next step.

    Republican Gov. Jan Brewer denied Thursday that Arizona had targeted gay couples and slammed the court for not recognizing the state’s right to balance its budget by limiting employee benefits.

    “This case has never been about domestic partners, same-sex or otherwise,” Brewer said in a statement. “It is always been about the authority of elected state officials to make decisions with which we have been entrusted by the voters.”

    Arizona’s constitution bans gay marriage and a 2009 law signed by Brewer repealed domestic partner benefits for state workers. Brewer said the state was in a fiscal crisis and couldn’t afford to extend health care benefits to employees’ dependents if they weren’t married. She said the policy was legal because it applied to all employees, regardless of sexual orientation.

    Gay marriage proponents counter that the policy was discriminatory because heterosexual couples may marry to obtain benefits, while gay couples can’t under state law.

    “The state is excluding only one group of employees from family coverage and that is lesbian and gay employees,” said Tara Borelli, a lawyer for Lambda Legal in Los Angeles.

    The conservative Center for Arizona Policy, which opposes gay marriage, had supported the state’s position in court, and has vowed to fight any efforts to overturn the state’s ban on gay marriage.

    “The Legislature and the governor should have the authority to determine benefits for state employees,” President Cathi Herrod said after the ruling.

    The legal battle could soon be resolved by voters. Gay marriage proponents began gathering signatures Thursday to change the Arizona constitution and legalize gay marriage. The Equal Marriage Arizona campaign hopes to collect roughly 400,000 signatures to get its constitutional amendment on the ballot in 2014.

    The Nevada case was originally filed on behalf of eight same-sex couples, and it argued that a 2002 state constitutional amendment prohibiting gay marriage violated the equal protection clause of the U.S. Constitution by denying same-sex couples the same rights as married couples.

    A federal judge in Reno ruled last year that the gay marriage ban was not a constitutional violation and it was upheld. The plaintiffs then appealed that decision to the 9th U.S. Circuit Court of Appeals while the anti-gay marriage group requested the Supreme Court hear the appeal instead of the San Francisco court.

    Borelli said Nevada law is questionable because the state grants domestic partners the same legal privileges afforded to married couples, while denying gays the right to marry. She said the state must rationalize the exclusion.

    The Nevada Legislature recently approved a measure that would legalize gay marriage but changing the state constitution is a lengthy process. Lawmakers must pass the same resolution in 2015 before it goes to voters for final approval on the 2016 ballot. If it clears both hurdles, it would become law. If it fails at any stage, the five-year process must start over.

    “We should just have a state law and be done with it,” said Sen. Kelvin Atkinson, D-North Las Vegas. “In the constitution we shouldn’t be defining marriage, that’s not what the constitution is for.”

    Not legalizing same-sex marriage will have consequences for Nevada over time, said Atkinson, who made national headlines earlier this year when he publicly announced that he was gay during the state Senate’s debate on marriage equality.

    “We are a tourism state and we do rely on folks visiting our state, so some may decide they’re not going to come here because they don’t have the same rights here,” Atkinson said.

  9. Ralph,
    I noticed your spelling of “disfunctional” and deliberately used the alternative spelling, just to totally vanquish you. I see that you finally learned to spell “flaccid.” Did my use of that spelling produce tumescence in your flaccid brain tissue?
    Your first sentence is terminally redundant, as a molecular biologist would point out. “Lardenous” is part of the redundancy, but not a word. No points for that one. Did you find that on Conservapedia?
    The correctness of your ideas has not a wit to do with your spelling. Your spelling merely distracts from the lunacy of your rants. Better keep it.

  10. I expected a lot of celebration from this crowd but the bottom line is, when a Supreme Court says or implies that one class of people is at a higher status or protected status above other people, that’s a big problem that will only lead to more trouble further down the road.

    There is a groundswell of people that are getting fed up with the militant homosexual agenda being forced on everyone else. This will only fuel the fire. In addition, marriage by definition is between a man and a woman. Period. Even if a group of people in robes say it isn’t. 2+2 = 4. Every time, even if someone tries to tell you otherwise.

    This problem is going to get harder and harder to fix. At least the states that still have some sanity and do not have a corrupt court system that legislates the cause of special interest groups over others, can block and/or not recognize marriage that isn’t between a man and a woman. But eventually someone will need to fix the problem – plug the hole before the dam bursts

  11. Bob, your lardenous, saponaceous, oleaginous, and degenerated, flaccid brain tissues failed to recognize that I spelled dysfunctional as “disfunctional.” But keep trying. I enjoy reading powerful arguments like my ideas can’t be correct because I misspelled something when I expressed them. In the future, please try to be more complete and consistent with such powerful arguments.

  12. Lieutenant Colonel US Army Retired (whew),
    “On a Marriage License Issued to Lesbians do we change:
    Husband: Slot A
    Wife: Slot B”

    On a Marriage License Issued to Homosexual Males:
    Husband: Deviant A
    Wife: Deviant B
    ????????”
    **********************************************************
    Are you presently employed modifying state marriage license forms?
    If so, ask your supervisor.
    If not, why are you concerned with this? Not enough to do?
    ????????

    “At this rate can Bestiality approval be far behind???”
    *******************************************************************
    That depends on the beast. A horse’s behind is indeed far from its head. Don’t get kicked.

    In case you truly are involved in writing marriage license forms, it’s:
    Husband: Beast A
    Wife: Beast B

    “We also can no longer claim to fight for Mom and Apple Pie, since she can possibly be sharing the foxhole with us….”
    *****************************************************************************
    Did you ever claim to fight for Mom and Apple Pie? C’mon, really? Watching too many John Wayne movies?
    Whose Mom?
    Apple Pie shared the foxhole with you? How fortunate! How did you find room for the Apple Pie, with all those Slots, Deviants and Atheists in there, with you?
    ????????

    I have lots more questions, and plenty of time to answer yours. I’m retired, too.

    Old Degenerate Hippie Biochemist Software Engineer Retired (whew)

  13. Mike S, your reply to the Lt. Col. who is now (mercifully) retired at 11:27 AM wins the Internets today. Well done.

  14. Ralph,
    Your flaccid, degenerated brain tissues and dysfunctional synapses repeatedly prevent you from spelling “flaccid” correctly. Practice, as in endlessly bleating the same tired innuendos, doesn’t improve your spelling.

    Perhaps your flaccid brain tissues would benefit from one of the new tumescence agents.

    You are correct. Your discussion of Roberts’ sexual orientation is lost on us. It’s really none of our business.

  15. Mike: Is it speculation to say that if it looks like a duck, walks like a duck, smells like a duck, quacks like a duck, and hangs around with other ducks that the “evidence” points to the creature being, in fact, a duck? Yes, the article presents the myriad separate indicators ALL pointing to Roberts’ real orientation, and NONE pointing in any other direction, as “not proven.” But they are indicators that are called “circumstantial evidence.” Look that up, because you obviously know nothing about the law. Circumstantial evidence carries the same weight as evidence that is “direct evidence” And a great many cases are determined based on such circumstantial evidence.

    I realize that all of this discussion is totally lost on you. You have received many jolts to your degenerated, flacid brain tissues, but the synapses are simply disfunctional. Don’t worry. You’re not alone. Gene and Darren have the same issues.

  16. Mike,

    That’s not the first time Ralph has proffered that particular piece of “evidence”.

    __________

    Lieutenant Colonel US Army Retired,

    That’s a terrible problem with false equivalences you’ve got there. Maybe you should get that looked at. Not by a physician, of course. A shot of penicillin won’t cure that. I suggest consulting a logician or perhaps an ethicist. And educating yourself to the scientific fact that homosexuality isn’t a deviant behavior but rather a normal expression of human sexuality in a statistically significant minority of our species (as it is in other primates and even dolphins).

  17. So Now, Mr. Eminent Legal Scholar;

    On a Marriage License Issued to Lesbians do we change:

    Husband: Slot A
    Wife: Slot B

    On a Marriage License Issued to Homosexual Males:

    Husband: Deviant A
    Wife: Deviant B

    ????????

    At this rate can Bestiality approval be far behind???

    We also can no longer claim to fight for Mom and Apple Pie, since she can possibly be sharing the foxhole with us….

    1. Lieutenant Colonel US Army Retired,

      Thank you for your service and thank you too for retiring because clearly you have no place in today’s Army. You comparison of Homosexuality to bestiality is proof you are prejudiced against homosexuals. Your Mom and apple pie comment shows that you disdain women in the Armed Forces. So it is good you have retired and can collect your well deserved pension. I say that with no irony whatsoever. Your prejudice prevents you from seeing that most armed forces in the industrial world do not share your view. Your knowledge of the history of warfare also shows you paid scant attention to the Spartans who one most certainly would classify as homosexual and were the greatest fighting force of their time. You gave service to our country and I certainly hope you enjoy your retirement and your well deserved benefits.

  18. Reblogged this on Semi-Partisan Sam and commented:
    A good, concise analysis of the US Supreme Court’s rulings on the Defense of Marriage Act (DOMA) and California’s Proposition 8, from Jonathan Turley, whose blog is well worth following.

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