Wednesday, June 26, 2013

Forgive me if I disagree a tad with Mr. DeMint

Jim DeMint
According to former Senator Jim DeMint, now President of the Heritage Foundation:
Today, the Supreme Court failed to uphold two important laws defining marriage as the union of a man and a woman. At the same time, the Court also refused to fabricate a new right to same-sex marriage, as the proponents of redefining marriage through the courts had hoped to do.
I am not so sure. The only part of DOMA being considered was Section 3 which barred federal recognition of state licensed same-sex marriage. However, this was deemed unconstitutional, largely on equal protection grounds. That brings us to Section 2:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
That seems to be vulnerable based on the same criteria. It applies only to same-sex marriages without secular reasoning. The state is no more capable of articulating the state's interest than it was in the Section 3 challenge. Equal protection would seem to require full faith and credit per Article IV of the Constitution. In other words, DOMA selectively eliminates full faith and credit which is unconstitutional per se.

All that might be required is for one case to make its way through the courts challenging the rest of DOMA.
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