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Either a ban discriminates against those affected more than those unaffected, or it does not. Joel Send a noteboard - 19/10/2012 03:48:32 PM
As you surely recall, one of the big arguments against state laws allowing gay marriage, and a key motivation behind the DoMA, was that the Full Faith and Credit Clause would force all states to recognize gay marriage if any did. Many state gay marriage laws were explicitly modified in response to those fears, denying out of state couples the ability to drop in for a wedding illegal in their own state then go home and demand recognition their states laws deny. It seems as open and shut as the Equal Protection Clause argument but then, I am not a lawyer.

Well, it's if the SCOTUS decides the rational-basis standard best applies that it is least likely to find the bans unconstitutional. The federal government has a harder time satisfying rational basis than state governments, precisely because state governments don't have to be uniform. So a) the SCOTUS could set a new precedent regarding FF&C, one which allows states to maintain their bans under rational basis, or b) the SCOTUS could strike down Section 3 of DOMA but not Section 2, allowing Section 2 to survive under rational basis. If either of those happens, the bans could stay in place. What we really need is for SCOTUS to rule that laws challenged for discriminating against homosexuals must meet the heightened scrutiny standard; since the bans would almost absolutely certainly be found unconstitutional under heightened scrutiny. It would just be a matter of challenging them, or the SCOTUS going ahead and ruling on it as a related matter

The problem is, people move, and doing so cannot invalidate a binding legal agreements they previously made elsewhere. That is why the Full Faith and Credit Clause exists, which in turn is why even ONE state legalizing gay marriage became so contentious nationally. Many states consequently tried to head it off at the pass by refusing to marry out of state couples, but as time passes and their married gay residents move the Full Faith and Credit Caluse must inevitably invalidate gay marriage bans in state after state. In that respect, the Windsor case is a horrible test, because no state is constitutionally required to give full faith and credit to CANADIAN laws, only to give equal protection under its own laws to everyone within its borders.

I find it interesting that, on both burden of proof and the Equal Protection Clause, conservatives and liberals take opposing views of the Constitution on gay marriage, but switch places on guns. I can respect both loose and strict construction views of the Constitution, but going back and forth as convenient strikes me as very self serving. If the Constitution requires TX to accept gay marriage licenses issued in CT, surely it requires CT accept gun licenses issued in TX; it cannot require either unless it requires both, because both rest on the same constitutional foundation.

It is very hard to paint "gun owners" as some kind of discrete group that would be discriminated against more than others by gun control laws, even on the level of rational basis. There is no identifiable group that the government would be discriminating against: any person can be a gun owner or not be a gun owner as easily as another. Hell, even if there were an actual religion that required gun ownership, rational basis would still kick it's arse, just like it did with peyote-using Native Americans when they claimed drug laws discriminated against them. So rational basis easily takes care of gun control laws. And heightened security? Fuggetaboutit. Gun owners are the very opposite of a discriminated-against, politically weak group, and gun ownership easily lends itself arguments about differences in ability to contribute to society, positive or negative.

You are illustrating the double standard: Anyone can own a gun OR marry a member of their own sex with equal ease—if it is legal. Rationalizing ANY ban by saying it equally affects those unaffected is nonsense. The only difference is the Constitution clearly stating, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" but stating no such explicit absolute right to marry. Marriage is left to the states, though they are constitutionally bound to give equal protection under all their laws, and full faith and credit to valid legal agreements from other states. However, that applies at least as much to gun licenses as to marriage licenses, since, once again, the latter has inherent constitutional protection the latter lacks.
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2nd Circuit rules in favor of Edith Windsor. DOMA unconstitutional. - 18/10/2012 08:37:12 PM 902 Views
An excellent ruling. Thanks for the post. *NM* - 18/10/2012 08:47:54 PM 256 Views
Oh, and they addressed the First Circuit's argument: - 18/10/2012 08:54:47 PM 710 Views
I always knew that DomA guy was bad news. - 18/10/2012 09:05:13 PM 467 Views
Do you know if there's a case about DOMA and the "full faith and credit" clause? - 18/10/2012 10:05:11 PM 632 Views
I wonder about that one as well. - 19/10/2012 12:39:54 AM 583 Views
Re: I wonder about that one as well. - 19/10/2012 01:18:22 AM 581 Views
Either a ban discriminates against those affected more than those unaffected, or it does not. - 19/10/2012 03:48:32 PM 469 Views
I'm sure there is. The California case is likely to discuss it. - 19/10/2012 02:48:02 PM 627 Views
There is a good chance it won't happen - 19/10/2012 03:02:50 PM 696 Views
Kennedy will go along with them. *NM* - 19/10/2012 10:05:38 PM 239 Views
As it should be; the DoMA was always a brazen affront to the Equal Protection Clause - 19/10/2012 12:06:13 AM 713 Views
Not really - 19/10/2012 02:16:04 PM 637 Views
Not quite - 19/10/2012 02:56:56 PM 504 Views
Yes, really, for "any CONSTITUTIONALLY PROTECTED RIGHT." - 19/10/2012 03:12:11 PM 609 Views
joel, please stop - 19/10/2012 05:42:51 PM 572 Views
That's such a stupid, puerile argument. - 19/10/2012 03:47:26 PM 589 Views
Not the best analogy, though I agree with the sentiment. - 19/10/2012 04:10:11 PM 517 Views
Then by the "legal argument" you all propose I should have the "right" to marry a spoon... - 19/10/2012 05:48:32 PM 548 Views
if your spoon or dog is capable of making power of attorney decisions then by all means do so *NM* - 19/10/2012 06:41:43 PM 257 Views
How about I "marry" a corporation then. THAT is how stupid the entire arguement is. *NM* - 19/10/2012 07:25:13 PM 248 Views
Another good example of how corporations aren't the same as people. *NM* - 19/10/2012 10:07:32 PM 252 Views
Would you be the bride? Would you wear white? - 20/10/2012 07:58:52 PM 505 Views
You have obviously not read my posts very carefully - 22/10/2012 04:23:22 PM 481 Views
Ah, the "I have Gay Friends" argument. - 22/10/2012 09:33:41 PM 502 Views
It was only a matter of time. - 19/10/2012 02:49:21 PM 557 Views
I do not understand why fundamentalists demand government dictate religion. - 19/10/2012 03:22:54 PM 715 Views
Which is why the entire method of legal attack being mounted is dumb. - 19/10/2012 05:53:12 PM 626 Views
the only ones forcing their beliefs down everyone's throats are people like yourself - 19/10/2012 06:44:57 PM 596 Views
There is no right being denied... - 19/10/2012 07:22:24 PM 559 Views
No? - 19/10/2012 11:34:36 PM 537 Views
Really - 22/10/2012 04:29:38 PM 538 Views
You are making one, huge factual mistake that is screwing up your entire argument: - 20/10/2012 11:00:28 PM 581 Views
Nope I am not - 22/10/2012 04:34:59 PM 522 Views
That is just it: Most US marriage laws are already areligious. - 23/10/2012 05:08:38 PM 536 Views
Yes, the laws are 100% secular... - 23/10/2012 07:01:08 PM 505 Views

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