If you want to challenge DOMA, don't argue equal protection

[CRYINGWOLFOWITZ]

The supreme court wont give gays the status of "suspect class" like it does women and blacks. Therefore laws against gays will probably be upheld if changed over equal protection issues. If you want gay marriage legal, you take the Defense of Marriage Act to the SCOTUS and have them strike it down as unconstitutional. Why? Because of the full faith and credit clause of the constitution. It says:
<<Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. >>
Therefore if gay marriage is legal in one state, say CA or MA, it is legal everywhere. But DOMA says that states don't have to recognize gay marriages in other states. DOMA conflicts with the full faith and credit clause. The SCOTUS has been sympathetic to gays (Lawerance) based on other reasons, such as right to privacy, but not equal protection. The equal proptection argument is uphill. If you want to challenge DOMA and make gay marriage legal everywhere, attack it on full faith and credit grounds.

[AliciaKeyedUp]

1. If you win, they will amend the Constitution

The U.S., sad to say, is not ready for this yet.

[Siyahamba]

2. The US wasn't ready for interracial marriage either

I hate to say it, but no way would that have passed in the 60s if it was put to a vote.

[CRYINGWOLFOWITZ]

5. in reality

the christian right is today's equivilent of the southern conservative racists of the 20th century. Arguments against gay marriage are similar to arguments against interracial marriage, both involving religious justificiations. in the end they will lose. just as interracial marriage was destined to be legal nationwide, and eventually accepted nationwide, gay marriage will also. Just like in the 20th century, the dems will probably be responsible for most of the social and economic progress of this century.

[CRYINGWOLFOWITZ]

4. it wont happen in a million years

I always have questioned the intelligence of the religious right. Do they want the amendment because they think that it is easy to pass? No they want it because they think they have the support. You need 2/3 of both houses of congress and both legislatures in 3/4 of the states. Frist cannot even get a conservative judge through a filibuster. A constitutional amendment wont pass. It might even be possible to play it again the reps in 06 and 08. It excites (whom which again I question the intelligence of) their base but just displays their own bigotries and the worst side of their beliefs.

[AliciaKeyedUp]

6. 11 out of 11 states passed gay marriage restrictions

Almost every single state would pass such a bill. The Demw in Congress would cave to such realities or be kicked out.

[CRYINGWOLFOWITZ]

7. only

Voters passing a state amendment is not the same as the congress and legislatures passing a constitutional amendment. DOMA passed with only I think 14 senators voting against it. The FMA failed with almost (if not all) all dems voting against it. 51 isn't enough to pass FMA, you need 67 senators. When you start toying with the constition you get into uncharted waters.

[AliciaKeyedUp]

8. Yes, uncharted waters

And I am against it. But if the states are forced to accept gay marriage, they WILL get the Amendment and senators who oppose it will be unemployed.

This is not a close issue in America.

[Geek_Girl]

3. I think if your going to test DOMA with the SCOTUS

You should wait and see who Bush puts on the benches. Let him pack the bench. Then if DOMA is ruled unconstitutional and Roe V. Wade is not turned over then Bush and the republicans are in serious poop with the religious right and their base. Then he'll have to push for a constitutional amendment which most likely will not happen. If they couldn't pass a legislation amend the constitution last time I doubt they'll be able to.

If democrats play there cards right they can beat the republicans over the head with their own wedge issues.

[baldguy]

9. Since when do GOP Justices follow the Constitution?

[Kathy in Cambridge]

10. Thank God I'm from Massachusetts

despite the weather, I stay here. Now I know why. What the hell is wrong with these people? I'm sick of paying for their tired prejudiced asses.

[TaleWgnDg]

13. indeed !!! . . . n/t

[Lexingtonian]

11. Why not???

The supreme court wont give gays the status of "suspect class" like it does women and blacks.

Do you mind telling us how this could fly? Lawrence v. Texas proves exactly that gay people are a selectively prosecuted and disenfranchised class.

I really don't know why Democrats keep trying to run away from the 14th Amendment. It's like liberalism or something..."Oh my God, I'm going to have to stand up for Equal Protection! There are so many Equal Protection extremists, I don't know how to prove I'm asking for something reasonable!"

[TaleWgnDg]

12. whoa, whoa, whoaaaaaaaaaaaaaaaa . . .

.

whoa, whoa, whoaaaaaaaaaaaaaaaa . . . slow down a tab bit, here.

Lawrence v. Texas (2003) was decided u/ the 14th amendment . . . the Due Process (DP) Clause from which a portion of the implied privacy right emanates and its long list of case law (stare decisis). Lawrence et al (successfully) argued that he was being deprived of his 14th amendment Due Process right of liberty and privacy as a person (individual) by the state (action) of the State of Texas when the state criminalized sodomy and charged him with that crime. I believe that Lawrence also presented a 14th amendment Equal Protection (EP) Clause argument too. I know EP was argued in the lower courts. But whether the U.S. Sup. Ct. reached that argument, I'd have to reread the case. Scalia lathered on about it in his pontificating dissent.

As for the *meatus* of the OP's argument regarding the 1996 Defense of Marriage Act (DoMA), it's a tad bit misplaced. For when an appellant petitions for review (certiorari) b4 the U.S. Supreme Court, one doesn't toss out a viable legal argument in any kneejerk manner. Of course the EP clause and the DP clause u/ privacy issues as well as the full faith and credit clause should be presented. Hell, I'd toss in more upon reviewing the statute(s) at issue, constitution carefully, and relevant case law, too, as well as the arguments, preserved or otherwise, from the trial court transcript(s) and all lower appeals courts. And the legal analysis wouldn't stop there!

As for the EP clause (the Equal Protection Clause) of the 14th amendment, it typically is applied to "suspect classes" of persons (yes, it's plural "persons") that have immutable characteristics. The potential flaw in the soup about arguing the EP clause regarding a "suspect class" of homosexuals is that homosexuality has not been scientifically indicated as being immutable (not changeable). BTW, if one does argue homosexuality in a court of law, one should always address the issue as "sexual orientation" (meaning immutable) and not as "sexual preference" (meaning its changeable, or "preferred"). However, all that said and done, the EP clause could still be successfully presented if the state's actions were egregious enough to not meet the rational basis test.

Uuummmmmmm, this is why one hires a lawyer in con law, and not diddle in DU about these things. And constitutional law is one of the more esoteric areas of law. That, despite all the diddlings in and around the internet about "interpreting the constitution" by layppl.


.

[Lexingtonian]

14. nice Lawyerese!

But whether the U.S. Sup. Ct. reached that argument, I'd have to reread the case. Scalia lathered on about it in his pontificating dissent.

<...>

As for the EP clause (the Equal Protection Clause) of the 14th amendment, it typically is applied to "suspect classes" of persons (yes, it's plural "persons") that have immutable characteristics.

Underapplying and misapplying and not applying the EPC is the cornerstone of keeping the society organized antidemocratically. Keeping its enforcement minimized (along with reversing/corrupting what enforcement there is, as best as possible) amounts to instituting nonequality of groups by race, gender, economic means, local/provincial standards. In fact, the 14th Am. was passed because Southern states grossly obstructed ex-slaves from voting in 1866. Its enforcement was difficult and controversial and led to the 15th being passed as a legal floor. Even the 15th took another 50-70 years to implement fully.

The social politics/fights of our times (since WW2) are all about group privileges/rights. Civil (non-white) Rights, feminism, gay rights, ex-felon rights. FDR had a bargain with the Southern Democrats not to touch Jim Crow in return for support of his economic agenda; with the economy booming and FDR's death the deal unravelled- the Dixiecrats began to leave, and the USSC was careful about the rate at which it began to enforce the EPC (there were obvious limits at the time, politically) by stuff like Brown v Board.

The Rehnquist USSC has notoriously tried to minimize the precedents and avoid extending them the least bit further- look at the verdict in Bowers v Hardwick- and Lawrence v Texas was utterly too indefensible to decide any other way. (Look at the ridiculous way the Texas courts behaved in dealing with it- the Texas Supreme Court refused to come up with a verdict, in fact.) I don't bother with court verdicts in much detail, but from reading up the ones issued in Johnson v Bush and a broad look at the rest the game is pretty clear. And the Rehnquist USSC seems to me to have done what every USSC does when the historical tide turns against the old conventions: it allows a lot of the rest of the Constitutional interpretations/enforcements that do have integrity but conflict with the corrupted part to be undermined or not enforced. One bad apple spoils the barrel. Before the Civil War the Fugitive Slave Act was the most explicit example of that kind of thing: the rights of states were trampled in order to preserve the implicit sanction for slavery. But it was preceded by suspending First Amendment rights, Second Amendment rights, and Fourth Amendment rights to black slaves in the slave states under the excuse that they weren't citizens. That game continues today at Guantanamo Bay.

Enforcement of the EPC and adjunct provisions seem to me to be core of what Democratic social policy positions have to be about. Much as I agree with your more careful analysis, for DU purposes the politics matter a bit more. After all, the Supreme Courts of every country ultimately make political decisions as much as interpretative ones- and the USSC, for all the pretenses about it, occasionally issues ones that it openly admits are political and otherwise unsound: Bush v Gore, obviously.

DoMA and all the state gay marriage bans of various kinds are in an unavoidable conflict with the EPC in the long run. The Massachusetts SJC verdict in Goodridge is essentially a statement to that effect. Victory in overturning DoMA is not an overturn on a minor technicality: it's an overturn on the basis of the EPC.

The uses of a Constitutional law lawyer are many, but his/her value lies mostly in knowing how narrowly or widely or perversely the provisions of importance are dealt with by the present corps of judges. I'm not one for lay people writing legal briefs to the USSC; on the other hand, if to bring an oral argument successfully requires knowing mostly arcana that the Justices do feel competent to deal with rather than solid explanations of injustices and available remedies, that too is pretty grotesque.