WINDSOR (or How I Learned to Stop Worrying and Love State Sovereignty)

Today heralds the ruling in U.S. v. Windsor, No. 12-307, the much anticipated opinion on whether Section 3 of DOMA violates the Fifth Amendment.

Summary of the Decision: 

Yes, yes it does. But you already knew that.

DOMA: Putting Liberals in a Queer Odd Strange Position Since 1993

In my experience, it’s a strange wind that blows liberals to support state sovereignty over federal rules, but that’s just the way it’s worked out here. DISCLAIMER: I self-identify as one of these so called “liberal democrats” who always seem to be up to mischief of one kind or another. It works the opposite way too, with people who are ordinarily crazy about states’ rights suddenly supporting federal preemption in places it normally doesn’t go.

But, this ruling is hardly supported by only the libdems, as my facebook feed makes clear. My law school friend Meagan, a known Republican writes: I’m a southern Christian girl, and a republican (kind of), and married to a man. With all of that, I am SO SO SO HAPPY with the SCOTUS decision to kill DOMA! Take that stereotypes!

It’s an exciting day for many. I talked to my friend Andrew, a known gay man, who said: “The America I was raised to believe in is finally becoming reality for me, personally. It truly is an honor to be present and accounted for as a gay man today, right next to Edith Windsor and my California brothers and sisters.”

Let’s Break it Down Now Y’all

You can read the full opinion, written by Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, here.

The issue in Windsor is DOMA Section 3, which amends the Dictionary Act. Yes, there is such a thing as the Dictionary Act. It defines “marriage” and “spouse” as:

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
1 U. S. C. §7.

To be clear, this is not about full faith and credit for same sex marriage. Let’s not get ahead of ourselves. But, it does make it easier for states to embrace equal marriage laws, because there is no federal disincentive for equal marriage protection.

From the syllabus:

“By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.”


Lawyers love to talk. Let's talk!

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s