DOMA ruled unconstitutional by Federal Appeals Court

Interesting article…even more interesting news, two of the judges were Republican appointees.

The article says this will all but guarantee a Supreme Court ruling being forced.


Not surprising to me. The Republicans have been able to get away with the judicial nomination racket for decades. It was a Republican appointed SCOTUS that made abortion a fundamental human right and a later one that refused to end this terrible crime. I guess with Democrat nominees we might get to the latest insanity quicker. But the Republican judges rarely undo anything. At best they are truly conservative meaning they keep the status quo, which should be unacceptable.

I’m not too surprised either. The Republican Party has been the party of civil rights since its inception, and with same-sex “marriage” being framed as a civil rights issue it doesn’t surprise me that Republicans would support it.

William Duncan at National Review:

This morning a panel of the U.S. Court of Appeals for the First Circuit issued an opinion holding the Federal Defense of Marriage Act unconstitutional. The court rejected the implausible argument of the trial court that that principles of federalism prevented Congress from defining terms used in federal law. It also declined the invitation to treat a law that considers the category of “sexual orientation” as equivalent to race (i.e. by employing strict or intermediate scrutiny judicial review). The court very clearly says that under the normal approach the courts would use to determine whether Congress had a “rational basis” in passing a law, DOMA would be upheld.

... So, why is DOMA unconstitutional? The court concludes that there is a new legal standard that has been emerging in the law whereby the U.S. Supreme Court has “intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.”
... To recap: Three judges on a federal appeals court purported to apply two amendments to the U.S. Constitution, the Tenth and Fourteenth, to Congress’ definition of marriage which forecloses same-sex marriage for federal-law purposes. The panel said the law did not exceed Congress’ power and would be valid under any analysis used between the time of the ratification of the Fourteenth Amendment (1868) and 1973. The panel said, however, that since 1973 *the implications* of a handful of U.S. Supreme Court decisions have newly invested the federal courts with a power to second-guess Congress’s purposes. In this case, these three judges decided Congress’s rationales for preserving in law what has been the overwhelming norm of marriage (probably unanimous) for millennia just didn’t measure up.

It may be a commonplace observation, but it certainly applies here: Why was a written Constitution necessary if constitutionality is merely a function of judicial preferences?

Are any of you who are “surprised” familiar with the 1st Circuit history, at all?

Two Republicans ruled DOMA unconstitutional and that means the Republican party supports gay ‘marriage?’ The Republican party does not support gay ‘marriage’ in the party platform, and most Republicans do not support gay ‘marriage.’ There may be a Republican here or there that supports gay ‘marriage’ but it is not common.

Mitt Romney has said he will defend DOMA as president.

He’ll be doing so before the Supreme Court, then.

I never said the Republican Party supports same-sex “marriage.” I said the Republican Party supports civil rights (equality under the law). Then I said the same-sex marriage issue is being framed (by the pro same-sex marriage crowd) as a civil rights issue. Therefore; I’m not surprised that there would be Republicans who would support same-sex “marriage.”

I agree

I think it’s less a concern of Civil Rights and more that of State Sovereignty - the ruling cited that DOMA is an undue Federal interference into State definitions of marriage, which is something that by the 9th Amendment is left to the State to determine.

State Sovereignty is much more in line with GOP thinking at the moment, though the conclusion is the opposite of the GOP’s platform. Although it does make one think that if the opposite came before the Court - a Federal requirement that same-sex marriage be recognized and benefits be extended to same-sex spouses - the same justices would strike it down as being an undue infringement upon the States.

On the plus side, the downfall of DOMA ought to make the ruling of those states banning gay marriage as safe as those states allowing gay marriage.

Regardless of outcome, continue to pray.

From the National Review article quoted by Abyssinia:

“The panel said the law did not exceed Congress’ power and would be valid under any analysis used between the time of the ratification of the Fourteenth Amendment (1868) and 1973. The panel said, however, that since 1973 the implications of a handful of U.S. Supreme Court decisions have newly invested the federal courts with a power to second-guess Congress’s purposes.”

I suppose that implications are better than penumbras. Still, it makes the Constitution seem to be a document written on water, or on a word processor with the Courts given the power to copy, paste, add, delete, at will–a document that can mean anything and nothing.

Would any constitutional attorney, any legal scholar, any author of the Constitution, at any time prior to now, have thought that the document protected the rights of homosexuals to marry one another? Hardly. But what did they know? They probably thought that it protected religious liberty.

Did you miss the voting for the Civil Rights Act of 1964? Guess who was the party of filibuster in the Senate?

Odd, but those folks on the Civil Rights Marches seemed to be more Democrats than Republicans. :shrug:

Being from AR, I’m sure you were aware of Senator Fullbright’s position?

Oh, that’s right, he was a Dixiecrat…

no wait…

Racist Southern Democrats tried to filibuster CRA '64, and when it didn’t work, they migrated to the Republican Party over the next several years. IIRC, there was not a single Southern Republican member of the Senate who voted to suppor CRA '64.

The line most commonly trotted out here is that a higher percentage of Republicans voted for CRA '64 than did Democrats. This is true, but quite disingenuous, as Republicans were outnumbered quite significantly by Democrats in Congress at the time.

Cherry-picking is great.

Why would more Democrats have been out on civil rights marches than Republicans when Democrats voted against many bills from 1858 to 1996 for civil rights and Republicans voted in support of these bills?

Look at the link I posted. Democrats continually voted in opposition to civil rights bills for ethnic minorities and women and Republican voted in support of those bills. Yet 2010 Democrats lie on their website:

Democrats claim, ‘Democrats have a long and proud history of defending Civil Rights and expanding opportunity for all Americans.’

They claim they supported the civil rights act. It was introduced and approved by an overwhelming majority of Republicans in the senate, the civil rights Act was opposed by most southern Democrat senators, one was Al Gore Sr was segregationist as were quite a few of the Democrat senators. President Lyndon B. Johnson relied on Republican Senator Everett Dirksen to get the civil rights Act passed.

Lilly Ledbetter Fair Pay Act Democrats did pass.

Republican Aaron Sargent introduced Susan B. Anthony amendment for women’s suffrage in 1878. It was passed in 1919 by a Republican House and Senate after being defeated 4 times by a Democrat majority senate.

I voted for the Republicans. They gave us the vote’ said Susan B. Anthony

Al Gore Sr, Robert Byrd, Richard Russell, can you name a Republican who took part in that filibuster, outside of Strom Thurmond?

It seems to me that the opposite is true, Democrats cherry-pick Thurmond.

So which Democrats who took part in the filibuster “migrated to the Republican party”, outside of Thurmond?

Long time Republicans like Robert Byrd?

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