What if SCOTUS upholds Prop 8, but strikes down DOMA?

[cynatnite]

Could that happen?

[MillennialDem]

1. Same sex marriage illegal in CA, but anyone who is same sex married in other

states still gets federal benefits?

Also open question would be would California (or any other state) have to recognize same sex marriages performed in states that have it?

If yes then you would also get both federal and state benefits.

If no then you would get only federal benefits.

I am not a lawyer.

[RKP5637]

2. I'm skeptical of what SCOTUS might do, being they are known for strange decisions ... n/t

[cynatnite]

3. I am, too, which is why I wondered if this kind of decision would be a compromise of sorts. n/t

[RKP5637]

6. I just went back and reread TPM on 3 possible outcomes ...

http://tpmdc.talkingpointsmemo.com/2012/12/supreme-court-doma-outcomes.php

1) Strike Down DOMA

The Court could determine that Section 3 of the Defense of Marriage Act violates the Constitution’s guarantee of equal protection for all under the law. In that scenario, gay couples in states like Massachusetts and Maine would begin to receive federal perks for married couples such as retirement and tax benefits.

The reach of such a decision would be important for future gay marriage battles.

“Of course, if they strike it down they could write the opinion narrowly, just about Section 3 of DOMA, or broadly in a way that recognizes a constitutional right to marriage equality,” says Erwin Chemerinsky, a constitutional law professor at UC-Irvine.

2) Uphold DOMA

The majority of justices could find Section 3 of DOMA valid under the Constitution. That would enshrine a status quo where gay married couples in states where same sex marriage is legal are treated differently than their straight counterparts under federal law.

Along with being denied tax and Social Security survivor benefits, gays would continue to not have the ability to sponsor foreign spouses for legal immigration status, as straight married couples are permitted to do.

3) Punt

The Supreme Court could potentially dismiss the case on procedural grounds. The case is unusual in that the Obama administration — the designated defendant for a federal law — has refused to vouch for DOMA. House Republicans retained counsel to defend the law. The justices may decide that the case was not properly defended and remand it to the lower courts to try again.

“One possibility is that the Court avoids the DOMA question entirely,” said Adam Winkler, a law professor at UCLA. “The Court could say that the House committee that’s defending DOMA is not a proper party to the case. Because the Obama administration has refused to defend DOMA, this would mean that the case would be sent back to the lower courts.”

Eventually, however, the case is likely to find its way back to the Supreme Court.

[quinnox]

4. not really following this

but would churches be forced to have same sex marriages or what. That seems highly problematical, if true.

[Fearless]

7. No

Separation of Church and State. Neither of these cases has any affect on how churches view marriage. Prop 8 deals only with California's ban on marriage equality. DOMA deals only with federal recognition and benefits of same-sex couples.

Edit to add: In fact there is no Constitutional basis by which the Court could ever, in any case, rule that churches had to or couldn't engage in any type of marriage they wanted. The federal government would only recognize or not recognize them. That is their only power in this regard.

[quinnox]

9. got it, thanks

[Fearless]

12. You're quite welcome!

[RKP5637]

11. To me, as another poster earlier, a lot of this is also a financial matter relative

to equal rights. And I agree with gay marriage. However, I don't see why a church should be forced to perform gay marriages. Somehow, I just find something wrong with that ... and IMO I agree, it would be highly problematical and would create a lot of challenges and dissonance. Anyway, who wants to get married in a church that hates you.

[quinnox]

14. agreed

I think religious freedom should prevail, and so I'm glad to hear this wouldn't be affected.

[LiberalFighter]

20. Churches already refuse to marry people based on their own criteria

If they are not of the same faith. If they don't go thru counseling. If the clergy person doesn't like the couple.

[Fearless]

5. CA wouldn't recognize marriage but the federal government would

And all states that currently do still would as well.

Though this won't happen.

[cynatnite]

8. Do the justices have to uphold both or strike down both?

Do they have to go hand-in-hand or can they be viewed separately?

[Fearless]

10. The Court MUST view them separately

They are entirely different in scope.

Prop 8 only affects marriage in CA.

DOMA only affects federal recognition and benefits.

While the two would have an impact if both upheld or removed, these are two different cases and must by court rules have two separate rulings. However, the ruling on the first can provide groundwork for the ruling on the second. It can be cited as precedent for the second. However, that is unlikely.

[cynatnite]

13. Thanks. n/t

[Fearless]

15. Absolutely!

[Hoops59]

16. cynatnite

The arc of history in this country never stops basic civil rights. Ever. Learn from history, Women can't vote, blacks will never vote, or play Major League Baseball, Gays will never serve in the military, black kids will never attend white schools, a Latino women will never serve on the Supreme Court , The USA will never, EVER! elect a black president. Gay Americans will never be allowed to marry. The arc of history.....

[cynatnite]

17. Thanks, but that was not what I was asking. My questions were answered, BTW. n/t

[meow2u3]

18. California can put a repeal of Prop 8 back on the ballot

if SCOTUS upholds Prop 8. California voters voted for it; they can vote to repeal it.

[SM Kovalinsky]

19. Of course SCOTUS could strike DOMA but uphold Prop 8

Yes, this could of course happen.

But as in the state of Maine, where they voted in a referendum against same sex marriage, but then voted to repeal it, even so could this occur in CA (much stronger pro-SSM numbers now).

And if gay marriage is left to the states, then gay advocates can continue to push for its legalization in all the states.

ETA: What I mean to say is that even if this were to occur, same sex marriage has gained such public support within the last few years, that the momentum could still continue, state by state. There would be no cause for despair, surely.

[Wounded Bear]

21. I was thinking they're almost mutually exclusive.......

The problem with DOMA IMHO is that it overrides the Constitutional mandate that all states must respect the laws and statutes of all other states. That seems to be un-Constitutional to me and would require an actual amendment to really enact. Of course RWers don't want their own states to have to recognize marriages from a SSM state, which the Cosntitution basically says they must.

Prop 8, being a state statute, really isn't a Federal issue IMHO, and I'm a bit surprised they even heard it. Funny how the states' rightists are all over this one in a way that contradicts their own philosophy. If states have these rights, then what are they arguing about? But.....Prop 8 is an abomination, forced on the people of California by out of state money, primarily from the Mormon church, but also supported by any number of dominionist organizations who want nothing less than to establish a theocratic United States. It should not only be struck down, it should be demonized for the RW bigoted assholery that it is.

My personal opinion is that both should be struck down.