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May 11, 2012


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Joe (not that one)

"He wants it all ways -- he's for same-sex marriage, but he wants states to decide on their own, yet he's opposed to DOMA's preservation of state ability to do just that."

This is missing a really important point. The administration's opposition to DOMA -- or at least its refusal to defend the constitutionality of it -- is confined to Section 3. Which is the bit that codifies the non-recognition of SSM at the federal level.

(By the way, the argument that a federal law that changes the federal governmment's stance towards marriage benefits from "we'll do whatever the person's state does" to "we won't recognize SSM even if the state does" isn't "federalizing" marriage in large part seems specious to me, but whatever.)

In any event, if the view that (1) allowing SSM marriage is good as a policy matter, but (2) states should be free to disagree with that, but (3) for those states that do authorize SSM, the federal government will defer as it historically has, is "having it all ways," then I guess I want to have it all ways, because that's exactly my position as well.

m. strasser

Section 2 of DOMA does not afford states the power to recognize or refuse to recognize s-s marriage, at least if the issue is whether, for example, Ohio can refuse to recognize a s-s marriage of Ohio domiciliaries that is celebrated in Iowa. Ohio has that power w/ or w/o Section 2 of DOMA (assuming for the moment that no other constitutional protections apply).

Calvin Massey

The point of section 2 of DOMA (whether or not you agree with its policy) is to ensure that the full faith and credit clause of the Constitution cannot be invoked to compel recognition of an out-of-state s-s marriage.

Howard Wasserman

But § 2 isn't really necessary for that purpose, since most states already have a public-policy exception built into their state-law obligations to accord F/F/C to foreign judgments. Section 2 is an exclamation point on that, perhaps, but otherwise is largely symbolic.

m. strasser

Section 2 did not accord a power to states that they did not already have with respect to the marriages of their domiciliaries. (Marriages are not thought of as involving judgments.) However, Section 2 (on at least one interpretation) does give states the power not to recognize a divorce judgment validly issued elsewhere. Absent section 2, states could not invoke a public policy exception to refuse to give effect to a divorce judgment, absent fraud or lack of jurisdiction. Section 2 does not do work with respect to recognition of foreign marriages but does do work with respect to state recognition of foreign divorces.

Bill Turnier

Although it is a bit off the point, I cannot help noting that President Obama and Vice President Cheney are on the same page on same sex marriage (although they may be on slightly different lines). This must cause great pain for some loyalist of both parties.


Hmm, so, I do not understand why one would talk about the Prop 8 case as all that significant. Denniston does and I don't get why. It cannot be ignored that Prop 8 was determined to have no legal effect on RDP's and to be essentially a symbolic law, correct? If a symbolic law violates equal protection, does that necessarily mean that a law that actually affects legal rights can be mandated against the states using that precedent? One would assume the arguments surrounding legitimate state objective would be different in the instance of a symbolic law versus one with substantive punch.

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