BREAKING: Federal Appeals Court Strikes Down DOMA In Opinion By Republican-Appointed Judge

[one...two...tree 2,762]

Chief Judge Dennis Jacobs is a very conservative judge. He joined a court decision effectively declaring corporationsimmune to international human rights law — even when they “trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy.” And he once gave a speech to the conservative Federalist Society decrying the “anti-social effects” of attorneys providing free legal services to the less fortunate.

And yet, this severely conservative judge is also the author of an opinion striking down the unconstitutional Defense of Marriage Act. Even more significantly, Chief Judge Jacobs’ opinion concludes that any law which discriminates against gay men and lesbians should be treated very skeptically under our Constitution:

[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny.

The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.”

Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here.

In this case, all four factors justify heightened scrutiny

: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

This is a really big deal. Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification. This is thesame very skeptical standard afforded to laws that discriminate against women. If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.

One unfortunate caveat is necessary: Judge Chester Straub, a Clinton-appointee, dissented. Nevertheless, this marks the second time that a prominent conservative court of appeals judge declared DOMA unconstitutional, and it relies on a sweeping rationale in doing so. Supporters of equality have a great deal to celebrate today.

http://thinkprogress.org/justice/2012/10/18/1040901/breaking-federal-appeals-court-strikes-down-doma-in-opinion-by-republican-appointed-judge/

[Penny Lane 8,159]

I was just reading this. Awesome.

Equal rights for everyone.

Edited October 18, 2012 by Evylin

[^_^ 5,021]

scotus gets the last word.

[Obama 2012 1,714]

The law is not unconstitutional because it's discriminatory. It's not in the slightest bit.

The problem with it is that it violates the full faith and credit clause of the constitution and should be struck down.

DOMA doens't stop individuals from marrying the other sex. It doesn't care about sexual orientation. It doesn't specifically stop anyone from doing anything that their state doesn't already allow them to do.

The problem is that it makes a contract within one state not binding in another, which IS a problem for states that allow homosexual marriage.

[one...two...tree 2,762]

The law is not unconstitutional because it's discriminatory. It's not in the slightest bit.

The problem with it is that it violates the full faith and credit clause of the constitution and should be struck down.

DOMA doens't stop individuals from marrying the other sex. It doesn't care about sexual orientation. It doesn't specifically stop anyone from doing anything that their state doesn't already allow them to do.

The problem is that it makes a contract within one state not binding in another, which IS a problem for states that allow homosexual marriage.

You tell them, Paul. Those know-it-alls who think just because they spent a lifetime studying law that they somehow 'know' law....POPPYCOCK! All it takes is someone with internet access and a little search engine powers to smoke those old fogies out of the water.

Edited October 18, 2012 by Commie Appeaser

[Penny Lane 8,159]

You tell them, Paul. Those know-it-alls who think just because they spent a lifetime studying law that they somehow 'know' law....POPPYCOCK! All it takes is someone with internet access and a little search engine powers to smoke those old fogies out of the water.

I love this.

[Obama 2012 1,714]

You tell them, Paul. Those know-it-alls who think just because they spent a lifetime studying law that they somehow 'know' law....POPPYCOCK! All it takes is someone with internet access and a little search engine powers to smoke those old fogies out of the water.

I said the law is unconstitutional, just for a different reason than they are trying to pull out of a hat.

Homosexuals are not a "class" of people. It's a mental state, a human behavioural state, but not a class of person. Attraction has to do with emotion, brain waves, etc.. It has nothing to do with who you otherwise are.

[JohnR! 5,495]

You tell them, Paul. Those know-it-alls who think just because they spent a lifetime studying law that they somehow 'know' law....POPPYCOCK! All it takes is someone with internet access and a little search engine powers to smoke those old fogies out of the water.

:thumbs:

I tell you.... If it weren't for Wikipedia, the internet would be an abyss devoid of any real bankable knowledge...

[Danno 1,228]

And this is where Representative Government comes off the wheels.... and you know what that leads to.

Yeah steve maybe you are right, this Judges opinion on what is constitutional is vastly superior to the 2 other branches which passed the law.

[JohnR! 5,495]

And this is where Representative Government comes off the wheels.... and you know what that leads to.

It leads to the prevention of mob rule... Interestingly enough, some will find fault with a system that is in such a manner designed...

[Danno 1,228]

It leads to the prevention of mob rule... Interestingly enough, some will find fault with a system that is in such a manner designed...

Wow, Bill Clinton and both houses are now a mob?

[JohnR! 5,495]

Wow, Bill Clinton and both houses are now a mob?

Are they?

[Karee 4,190]

Are they?

Great response!

[Gary and Alla 3,694]

Good. We do not need government involved in marriage. It is an agreement between two consenting adults. I would like to see the elimination of our current tax code and the implementation of the FAIR TAX which would remove any interest the government has in marriage/tax benefits. There simply should be NONE.

Families are the building block of society and culture and government she keep their hands off it, it is too damn important. Who wants the whack jobs that get themselves elected making decisions about your family?

Other than an age of consent (it IS a contract) of 18 and some regulations to prevent in-breeding which should be based on genetics and nothing else, then government should not say which consenting adults can get married. And if you ask if that means polygamy also...YES! If that is the arrangement consenting adults want...stay out of it!

Courts can enforce the marriage contract just like they can enforce any contract.

If people want to follow their OWN religious beliefs, go right ahead. Keep them OUT of laws.

[Gary and Alla 3,694]

The law is not unconstitutional because it's discriminatory. It's not in the slightest bit.

The problem with it is that it violates the full faith and credit clause of the constitution and should be struck down.

DOMA doens't stop individuals from marrying the other sex. It doesn't care about sexual orientation. It doesn't specifically stop anyone from doing anything that their state doesn't already allow them to do.

The problem is that it makes a contract within one state not binding in another, which IS a problem for states that allow homosexual marriage.

You are right in some regards, yes. However the same situation occurs with concealed carry handgun permits. States MUST recognize marriage and drivers licenses but not concealed carry lisences? That situation may also be challenged before too long.

However, DOMA also denies rights and privileges to homosexuals without preventing them from being married. They cannot (at least legally) file an I-129f for a same sex foreign fiancee, for example or even an I-130 for a foreign same-sex spouse and that IS discrimination. There have been some recent semi-exceptions to that. Recently a married Lesbian couple here, one American, one Canadian were threatened with deportation (The Canadian spouse)There has been a deferrment of her deportation now while awaiting the outcome of this case and/or the Supreme Court ruling which may follow. It is still not legal for them to get a CR-1 visa, but at least they are not kicking out her partner.