Dead law walking

DOMA has been on the ropes for a while. The trend in the courts has been against it for some time. Last July the US District Court in Mass. dealt a couple of body blows to the law, when it ruled, "In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

The full opinion in GILL & LETOURNEAU v OFFICE OF PERSONNEL MANAGEMENT brings the sad, and pathetic, history of the DOMA out into the light. It wasn't about "protecting marriage," it was about letting homosexuals have the same rights as straights.

On that basis it, like laws against inter-racial, interfaith, inter-anything marriage, deserves to be chucked.

The DoJ today said that there is no real hope for DOMA, because they won't defend it. It may take a plaintiff in each district to challenge it, but it will fall.

The folks opposed to it have no hope. The Supreme Court can't, if it is to be honest, uphold it. Should someone who loses be foolish enough to petition the SCOTUS, they will be arguing that a law the feds are not defending, which the DoJ has determined to have fatal constitutional flaws, "Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.


After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

That is the DoJ getting ready to throw in the towel.

The challenge to Prop 8 in Calif. continues.

New Mexico says there is nothing to invalidate legal marriages of same-sex couples who move there.

Maryland is about to pass a law legalising same-sex marriages.

Rhode Island looks to be likely to do the same.

Massachusetts has yet to see the horrors of man on dog/duck/goat/pig/box turtle love Rick Santorum, John Cornyn, Bill O'Reilly, and Jimmy Swaggart rail against whenever the subject comes up.

In short, the fight is getting close to the final bell, and DOMA is going to lose. It may be a TKO, but a win's a win.

I forgot...

In my joy over getting my cast off on Monday last, I forgot was that day of the year when the most beautiful phrase in the ritual calendar of the American year is said...

Pitchers and Catchers Report

Spring is soon upon us, the grass shall green, and soon the sounds of bat and ball shall be heard throughout the land.

Oh,... the things which pass for reason

Sasha Volokh (whom I know, though we've not been in regular contact in something like 15 years) is, if nothing else, intellectually consistent.

Daft as a brush, but consistent. His consistency shows the major flaw in Libertarian logic.

at the risk of confirming Mark Kleiman in his belief that libertarians are loopy — I don’t speak for all libertarians, but I think there’s a good case to be made that taxing people to protect the Earth from an asteroid, while within Congress’s powers, is an illegitimate function of government from a moral perspective.

I have to say, I don't think it's a question of risk, of one says that using the power of the gov't to prevent large scale death and destruction is immoral, you are loopy.

The crux of his argument is that the only legitimate function of gov't is to protect individual rights. Since natural forces have no intentional volition, they aren't violating rights, and so the governments power to tax isn't legitimately spent to react to them.

The problem with this absurdum isn't that asteroids are absurd, it's that much lesser events are in the same vein, and Sasha would argue the gov't in't withing its legitimate scope to deal with them. By this reasoning a collapsed building isn't violating anyone's rights, and while a government might choose to spend money to save people (say in Christchurch, or New Orleans, or New York) should some natural disaster cause them to have collapsed buildings, or fires, or some other threat to the present order of things; such threat being such that people will die if nothing is done.

Sasha says he's willing to bite the bullet on this, but I wonder. If lightening struck his house would he be of the opinion the fire dept. ought not come to his aid?

This is one of those things where Libertarians get to have the benefit of not living in their Libertopia. Apart from something as reductio as his asteroid postuate, Sasha will never have to face this (well, had he been living in New Orleans in 2005 he would, but he didn't, do he wasn't faced with his theory being put into practice).

Tsunami alerts... illegitimate. Hurricane alerts, illegitimate (though most Libertarians are in favor of them, because they benefit business).

The mind reels at the love of money this shows. A provable public good is only to be allowed if it prevents unrest in the streets, On the other hand, if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.

Got it... if you don't tell people about it, so they can't clamor for protection, then it's unreasonable to protect them from catastrophe.

This does make me uncomfortable, much like my view that patents are highly useful but morally unjustifiable, so I’m open to persuasion.

I wish, all things being equal I thought the last was the case, but I've argued with him on things which would seem to be just this sort of issue. We once had a warm discussion of the question of allowing gays to openly serve in the military. He said that there was no reason to change the situation, because it was working and the infringement wasn't "harming" them. To change the present law would be, on the other hand, disruptive. We should just wait until the society was overwhelmingly in favor of allowing it before we changed things.

Which confused me, because I figured that infringing on someone's right to do something which was based on some other thing that person did, a thing which was a private activity, was taking away one group's rights for no good purpose. As I recall the conversation (it was going on 20 years ago) the system as it worked was working well enough, so why change it.

It wasn't a legitimate use of gov't to make the people who didn't like serving with homosexuals put up with it. The flip side, that it was an illegitimate use of gov't force to deny a group the right to do something didn't seem to carry any weight.

In short, mob rule carried more weight; just as it does in this example.

That conversation was pretty much my last attachment to Libertarian Philosophy: it was bankrupt. At root it is selfish, personal, and fails to accept any duty to the community.

It seems it still is.