The very interesting (if a little skimpy on the analysis in some areas) decision striking down the part of DOMA that allows the federal government to refuse to recognize same sex couples married under state law can be found here:
The most important and interesting element of the decision is that the Second Circuit is doing what the SCOTUS (and even the First Circuit) has refused to do: declare that sexual orientation is a quasi-suspect class, deserving of medium scrutiny, thus putting it on par with classifications based on gender.
In discussing the limits of homosexuals to protect themselves through the political process, the court said:
It is difficult to say whether homosexuals are “under-represented” in positions of power and authority without knowing their number relative to the heterosexual population. But it is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private--which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas.
I guess I had assumed they had created a de facto quasi-suspect class, as pretty much any law can survive the "rational basis" test for non-suspect class discrimination.
Originally posted by Kunsoo I guess I had assumed they had created a de facto quasi-suspect class, as pretty much any law can survive the "rational basis" test for non-suspect class discrimination.
Not true. In Perry v. Brown, the court applied the rational basis test to California's amendment prohibiting same-sex marriage (Prop. 8) and held the amendment to be unconstitutional. 671 F.3d 1052 (9th Cir. 2012). Similarly, the Supreme Court applied the rational basis test to Colorado's amendment prohibiting the state and local governments from recognizing homosexuals as a class of persons and held the amendment to be unconstitutional. Romer v. Evans, 517 U.S. 620 (1996).
Still, the Eleventh Circuit, applying the rational basis test, upheld Florida's statute prohibiting homosexuals from adopting children. Lofton v. Sec'y of the Dep't of Child Servs., 358 F.3d 804 (2004); But see Florida Dep't of Children and Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. 3rd Dist. Ct. App. 2010) (holding statute failed to pass rational basis test under Fla. Const.). Courts have generally declined to follow Lofton.
In Goodridge v. Department of Health, Massachusetts' highest court found that a ban on gay marriage failed the "rational basis" test.http://www.boston.com/news/daily/18/sjc_gaymarriage_decision.pdf
Originally posted by MoneyManMike Not true. In Perry v. Brown, the court applied the rational basis test to California's amendment prohibiting same-sex marriage (Prop. 8) and held the amendment to be unconstitutional. 671 F.3d 1052 (9th Cir. 2012). Similarly, the Supreme Court applied the rational basis test to Colorado's amendment prohibiting the state and local governments f ...[text shortened]... al basis test under Fla. Const.). Courts have generally declined to follow Lofton.
The problem is California was that there was difficulty defining a policy upon which to "rationally base" anything. What was the government interest? Preservation of the word "marriage?"
In Florida - not to say I agree with the ruling, I think it's abominable - the policy is ostensibly to give kids dual sex marriages so that they can benefit from what both sexes have to offer. It's weak, but a "rational basis" can arguably be made.
Originally posted by Kunsoo The problem is California was that there was difficulty defining a policy upon which to "rationally base" anything. What was the government interest? Preservation of the word "marriage?"
In Florida - not to say I agree with the ruling, I think it's abominable - the policy is ostensibly to give kids dual sex marriages so that they can benefit from what both sexes have to offer. It's weak, but a "rational basis" can arguably be made.
Not really. Infertile people and women well past the age of childbearing marry.
Originally posted by sh76 The very interesting (if a little skimpy on the analysis in some areas) decision striking down the part of DOMA that allows the federal government to refuse to recognize same sex couples married under state law can be found here:
The most important and interesting element of the decision is ...[text shortened]... g the kind of open association that advances political agendas. [/quote]
So, what say we all?
I have not read the Opinion, but I agree that making homosexuals a protected class with intermediate scrutiny (as for gender, i.e. women) is the most interesting and most significant aspect of the case. I was surprised and it caught my attention definitely. I do say it makes sense (since homosexuality is a biological characteristic, and with the clear history of discrimination against that class of people?)
While rational basis review may be adequate to overturn the DOMA, there is nothing like having a heightened scrutiny, even if lower than strict scrutiny.
As a side note, we have Ginsburg (as an attorney arguing before the Supreme Court) to thank in part for the creation of intermediate scrutiny. After a prestigious education, she became a professor. Despite a strong recommendation from the dean of Harvard Law School, Justice Felix Frankfurter had turned down Ginsburg for a clerkship position because she was a woman. Ginsberg then spent a considerable portion of her legal career as an advocate for the advancement of women's rights as a constitutional principle, arguing against sex discrimination including as general counsel for the ACLU and in several landmark cases before the Supreme Court.
Interestingly, in some cases, she represented men and argued against certain laws that favored women or disfavored men. As Brennan noted, "romantic paternalism" in practical effect can put women not on a "pedestal," but in a "cage."
A huge accomplishment of President Clinton was appointing Ginsburg to the Supreme Court. (And also thanks to President Jimmy Carter first appointing Ginsburg to the U.S. Court of Appeals for the District of Columbia.)
The DOMA case
19 Oct '12 16:501 edit
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