| Cubedramirez said: Striking down of DOMA means you'll never see a federal law force one side or the other in terms of marriage. So while the short sighted view is that this is a wonderful day for same sex marriage (yada yada) it actually means it will still keep the states heavily against it in the clear without threat from a federal mandate. It's the only reason why I praised the ruling. Power back to the states. This entire round of decisions has been knocking back federal power. |
That's not really the case if you read the ruling. It confirmed that States do have wide breath in regulating marriage but NOT that such power is absolute.
What set it over the limit was
" DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. "
"The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved."
So a federal law making all same sex legal would not have the same tipping point, and would presumibly be ruled consitutional by the same 5-4 majority.
States rights is really just underplaying how big a loss this was for some people. Afterall if DOMA specficially degreades and demeans a married couple, what about laws that prevent gay couples from adopting? Same precedent right? Civil unions instead of Marriages? Same thing with a demeaning name.
All of this stuff could lead to a LOT of cases that could deliver big blows. Ironically to the "middle progressive states" that are halfway on the issue. It shouldn't effect states with no civil unions/marriages.
