republican slap in the face: DOMA Goes Down Again

Discussion in 'Politics' started by Free Thinker, Aug 8, 2012.

  1. the republican congress has passed almost nothing in the way of economics the last two years but the one thing they have voted on and passed several times are laws to discriminate. how much time have they wasted on the doma? well it was just totally thrown out. by a bush appointed judge no less:

    DOMA Goes Down Again
    August 4, 2012 at 10:28 am Ed Brayton
    Yet another federal judge, this time a George W. Bush appointee, has struck down the Defense of Marriage Act as unconstitutional. And once again, the judge ruled that the law could not even survive the lowest level of scrutiny, the rational basis test, which usually all but guarantees that a law will be upheld. You can read the full ruling here. First, the court noted how far-reaching the effect of DOMA is:

    The impact of DOMA’s definition of marriage is vast, estimated to affect atleast 1,138 federal laws and regulations and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations…

    Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.
    Then it had to decide whether to apply heightened scrutiny or the rational basis test, which requires answering the question of whether gay people have a history of discrimination that would warrant considering them a “suspect class” that is likely to be the target of unjust legislation:

    The first factor courts consider is whether the class has suffered a history of discrimination. Plaintiffs argue that “t is beyond dispute that ‘for centuries there have been powerful voices to condemn homosexual conduct as immoral’” and that “lesbians and gay men have suffered a long history of discriminationand condemnation.” BLAG responds that it “does not dispute that homosexuals have been subject to discrimination” however BLAG questions the length of this history. This acknowledgement is emblematic of the incidents of discrimination, including annulation, negation, ostracism and isolation of the group which is the object of discrimination resulting in the broader society’s lack of knowledge and understanding of that group. BLAG argues that the history of discrimination against homosexuals isrelatively short-lived and ostensibly the product of the twentieth century which counsels against recognizing sexual orientation as a suspect or quasi-suspect class…

    Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of homosexual identity emerged as gay Americans moved into cities and began tentatively stepping out of the closet…

    In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. In addition, the federal government hasalso labeled homosexuals mentally ill.

    Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and(iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination.

    Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes…

    In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered along history of invidious discrimination. Moreover this conclusion is consistent with the majority of cases which have meaningfully considered the question and likewise held that homosexuals as a class have experienced a long history of discrimination.
    But here’s where it gets interesting. Essentially, the judge said that while this history of discrimination clearly supports the suspect class certification and heightened scrutiny, it wasn’t necessary to apply such a standard because the law could not survive even the lowest level of constitutional scrutiny:

    Having considered all four factors, this Court finds that homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny. However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster undereven the most deferential level of judicial scrutiny.
    BLAG, by the way, is the Bipartisan Legal Advisory Group, created by John Boehner to defend DOMA after the DOJ decided not to continue doing so.
  2. wildchild


    What Republican Congress are you referring to? The House is Repub the Senate is Dem. How is that a Republican Congress? Do you actually believe the crap you post?
  3. Lucrum


    I've pointed this fact out repeatedly. Free Thinker is as biased and partisan as they come. Apparently he's also extremely ignorant. The senate majority is a democrat and probably more responsible for nothing of consequence economic getting passed as anyone.
  4. lol , as usual . . . . what the judge said will be ignored.
  5. Eight


    Freestinker is one dumb sob..

    99% of people on the left are like union assholes with baseball bats, the entire WH included.. Unions push employers to the brink of bankruptcy and beyond and are entirely amoral. That is all that you need to know to understand the US at this point in history...
  6. Contrary to what the OP seems to think, DOMA was passed by bipartisan majorities during the Clinton era and signed into law by noted bigot Bill Clinton.

    The opinion makes little to no sense outside of radical gay circles and perhaps law school faculty lounges. It is yet another depressing example of an activist judge confusing his personal policy preferences with constitutional mandates.