Expand Cut Tags

No cut tags
whocares1970: (Default)

"As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough tosay that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it nei­ther requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.However, even setting aside traditional moral disap­proval of same-sex marriage (or indeed same-sex sex),there are many perfectly valid—indeed, downright bor­ing—justifying rationales for this legislation. Their exist­ence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legis­lators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968). Or at least it was a familiar princi­ple. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited."

"The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected coordinate branches, the Con­gress and Presidency of the United States. Laying such a charge against them should require the most extraordi­nary evidence, and I would have thought that every attempt would be made to indulge a more anodyne expla­nation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing men­tion of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them."

"Imagine a pair of women who marry in Albany and then move to Ala­bama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visit­ing in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by speci­fying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision."

"There the Justice Department’s refusal to defend the legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presiden­tial powers. There is no justification for the Justice Department’s abandoning the law in the present case. The majority opinion makes a point of scolding the President for his “failure to defend the constitu­tionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,” ante, at 12. But the rebuke is tongue­in-cheek, for the majority gladly gives the President what he wants. Contrary to all precedent, it decides this case (and even decides it the way the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy."


whocares1970: (Default)

July 2017

9101112 1314 15
16 171819202122

Most Popular Tags


RSS Atom

Style Credit

Page generated Jul. 21st, 2017 04:51 pm
Powered by Dreamwidth Studios