The Second Circuit Court of Appeals handed down that great decision on DOMA. Linda McClain's analysis at Balkinization is terrific. Recommended. For my own pleasure and yours too, I hope, I'll lift two pieces of it because they make me think we still have the potential to be a great country. A long way to go, and this is decision marks an important moral step.
First favorite bit:
Applying the intermediate scrutiny test, the Second Court finds that the arguments offered by BLAG for Section 3 of DOMA fail. Indeed, Chief Judge Jacobs observes that "at argument, BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny." First, BLAG [Bi-partisan Legal Advisory Group, House of Representatives] argued there was a "unique federal interest" in maintaining a "consistent federal definition of marriage." However, the court properly concluded that this emphasis on uniformity was "suspicious" and deserved a "cold eye" cast upon it given the historical and continuing deference by Congress and the Supreme Court to "state domestic relations laws, irrespective of variations. The court finds support in a friend of the court brief filed by family law professors explaining that DOMA "left standing all other inconsistences in the laws of the states, such as minimum age, consanguinity, divorce, and paternity." The court invokes Romer in scrutinizing this uniformity claim: "discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Section 3's "unprecedented breach" of deference to federalism when it comes to state marriage law fails the "exceedingly persuasive justification" test." ...Balkinization
Evangelicals, their sky-daddy, and their radical political chums seem willing to fight for states' rights when they agree with the states and not when they don't. We need to make sure we always have available our "cold eye" when dealing with them.
Second favorite bit, the heart of the moral argument for equality in a democracy:
Finally, worth mentioning – apart from its standard of review ruling – is the Second Circuit’s closing observation about the critical distinction between civil and religious marriage – a distinction I have argued is vital to the marriage equality issue: "Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status – however fundamental – and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door." ...Balkinization