DOMA - and the dissent

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I don't think it came as a surprise to many that the Supreme Court struck down the DOMA legislation. The basic argument was that marriage has always been up to the states to decide, and so the government basically has to go along with whatever the state decides is a legal marriage. So if you are a same sex couple and you live in a state that allows same sex marriage (and you're married), you get all the federal benefits that come along with being married as well. If you live in a state that doesn't allow same sex marriage, you're still SOL.

What is far more interesting to me is Scaila's dissenting opinion. All I can say is: WOW! To call it scathing would be putting it mildly. It is quite possibly the most heated rebuttal of a majority opinion that I have ever read. It disagrees that the case had standing in even the Circuit Court - never mind the Supreme Court, it disagrees with the reasoning behind the majority opinion, and feels that the even if you agree with the judgement (with which he clearly does not) it produced an incomplete and inadequate answer to the question at hand.

Here's the whole court decision. Scalia's dissent follows the court opinion, so you'll have to scroll down to read it. Link

 

Ok, though do you have any thoughts on or read anything into that it was Kennedy who helped overturn DOMA in this case?

 

Um... well... yeah. Kennedy wrote the voted for ruling DOMA unconstitutional, and even wrote the majority opinion. So of course he helped.

Although I agree with striking down the DOMA legislation, there is merit in Scalia's dissent. This case concerned a woman in New York who had a legally recognized same sex marriage in the state. When her spouse died, she was named the sole recipient of the will. However, because the federal government did not recognize her marriage, the inheritence was subject to an estate tax to the tune of over $300,000. She sued in District Court. She won, and the President said he agreed with the decision. Normally that ends the case.

Inexplicably, the case still went on to Circuit Court. The Circuit Court affirmed the lower court's decision, and again the President agreed. This REALLY should have ended the case. Nonetheless, the case went on to the Supreme Court.

Scalia's first argument was that the purpose of the SCOTUS is to be the final word in settling disputes, and since there was no dispute to settle - both parties agreed with the ruling - then why the hell do we need to even take the case?

Scalia then went on to point out that marriage isn't mentioned anywhere in the US Constitution, and that marriage has always fallen under the authority of the individual states as a result. (Through the 10th Amendment - that all powers not given to the federal government are ceded to the individual states, of which marriage is one.) He went on to say that the federal government never even needed to pass the law - there was no need to stick their nose into a states rights issue - and that it wasn't a particularly good piece of legislation.

However, he argued that if you were going to take the case and rule on it, at least have the decency to make a complete ruling. Since the ruling only applies to states that currently allow gay marriage, what happens when a gay married couple move from a state that allows it to one that doesn't? This will invariably happen at some point. They won't qualify for state benefits, because the state doesn't recognize their marriage. Does that mean they still get the federal benefits or do they lose them too?

At issue is that the part of DOMA that was under review was Section 3 that defined marriage as between a man and a woman. They did not strike down section 2, as that wasn't at debate, that says states don't have to accept other states definition of marriage. So that's a hot mess. Scalia's belief was that all this ruling did was set up another case for the SCOTUS next year to rule on the inevitable question that this case left unanswered. He felt that if you were going to rule on this case, you could at least have the decency to pass a ruling that would set the laws for the nation. This was evident in his last paragraph: