The Defense of Marriage Act (PL 104-199) (DOMA, henceforth) had two sections of effect (section 1 was only the instructions on citing it): Section 2 allowed states (and territories, possessions, and Indian tribes) to not recognize same-sex marriages (or contingent rights or claims) contracted in other states (or territories, possessions, or Indian tribes) (where such contracting is legal); section 3 denied Federal recognition of those marriages.

With today’s decision by the Supreme Court in United States v. Windsor (Windsor, henceforth), holding that Section 3 of DOMA (and therefore 28 USC 115 s1738C as modified thereby) is unconstitutional, the way has been cleared for same-sex married couples to claim the same Federal rights and benefits that opposite-sex married couples routinely enjoy.

A further effect of this appears to be that even if a same-sex couple married in (for example) New York (where same-sex marriage is legal) moves to a state that does not recognize the same-sex marriage, the access to federal rights and benefits continues unimpaired, because the marriage was legally contracted.

The decision does NOT require that states recognize same-sex marriages contracted in other states; Windsor did not bring Section 2 of DOMA to the attention of the Court.

In the following analysis of possible future attacks on Section 2 of DOMA, all emphasis of quoted sections of the Constitution are mine.

In past online discussion of DOMA, many people felt that it was unconstitutional, citing Article IV Section 1 (the “Full Faith and Credit clause”) of the Constitution. However, the full text of that section is as follows:

Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.


Note carefully the second sentence of the section, and most specifically the final clause thereof. Article IV Section 1 is no help in “breaking” DOMA; DOMA is a “general law” that “prescribe[s]” “the Effect thereof”.

I here quote Article IV Section 2 and Article XIV (Amending) Section 1:

Article IV
Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Article XIV (Amending)
Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


These two sections may be of some help in defeating DOMA; it may be possible to argue that the rights and claims entailed in marriage in any given state may not be revoked or abridged if the married couple moves. With respect to Article XIV (Amending) Section 1, another possible argument against DOMA would be that married same-sex couples are denied equal protection under the law.

In attacking Section 2 of DOMA, it may be instructive to look at the Court's decision in Windsor. The Court held that Section 3 of DOMA was unconstitutional as a “deprivation of the equal liberty of persons ... protected by the Fifth Amendment”. I here quote Article V (Amending) for reference:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


The Court’s analysis touches on many specific issues, but the theme of the analysis is that the state (New York, in this case) chose to recognize and offer a certain dignity to same-sex couples, the same recognition and dignity offered to opposite-sex couples, but DOMA deliberately and specifically used the same state recognition to degrade that dignity and relegate those relationships to second-class status, unequal under Federal law. It further looks at the specific language in DOMA itself, in the arguments of the supporters, and in the language of the debates on DOMA in Congress, and concludes that the motivation for the passage of DOMA was “improper animus”.

Previous Supreme Court decisions have held that Article V (Amending) applies not only to the Federal government, but to the states severally as well. In addition, Section 1 of Article XIV (Amending) essentially repeats Article V (Amending)’s language with an explicit application to the states severally.

None of this, however, is a “slam-dunk” against Section 2 of DOMA. At best, it is sufficient grounds for a future Supreme Court ruling that a state may choose not to recognize same-sex marriages contracted in another state - but only if it also withholds such recognition from opposite-sex marriages from that same state. The approach then is to render the effect of Section 2 of DOMA null, in challenging the constitutionality of a state’s act to actually deny such recognition - in which event, the Court’s reasoning in Windsor comes into play, and a state’s act of availing itself of the provisions of Section 2 of DOMA is what may be found unconstitutional, not Section 2 of DOMA itself.

In other words: Section 2 of DOMA may be constitutional, either as it stands, or modified to not distinguish same-sex marriages from opposite-sex marriages, but it may not be constitutionally permissible for a state to act in accordance with it to not recognize marriages.

The Electronic Frontier Foundation (EFF) says “Yes”.

There’s a viral call-to-action regarding this; I’m specifically NOT chaining into it because the original article is in a locked journal, and the entry in question was not opened to general readership.

Read the article at the link; the gist is that the wording of the bill gives the government and ISPs all the rights/powers they would have had under SOPA/PIPA, essentially ending any shred of on-line privacy, in the name of 'cybersecurity', which is defined to include protection against 'theft of intellectual property' or 'government information'. In addition to allowing ISPs to monitor your usage - and the bill doesn't mean just quantity, it includes content - it grants the government the right to take action against organizations that leak information that the government doesn't want in public - such as the cables in the Wikileaks episode a few months back, or perhaps the Pentagon Papers, or maybe Watergate...

Today's decision from the United States Supreme Court in District of Columbia v. Heller is rightly being called significant, and even a landmark decision. However, contrary to some of the comments I've been hearing from friends in various forums, it is not the death knell for gun control. At best, it is the beginning of the end-game; more likely, it is a significant tactical victory, but the battle remains joined, and is far from over.

First, let's look at what the Court held in its opinion. This can be summed up in three statements:

  1. The Second Article Amending the Constitution of the United States guarantees the protection of an individual right to own firearms.
  2. The DC law banning the possession of handguns in the home is overturned as unConstitutional.
  3. The DC law requiring any firearm not kept in a place of business to be non-functional (unloaded, and either disassembled or with trigger lock) is overturned as unConstituional.

These are indeed significant, as the Court has now established limits on gun laws in the District of Columbia. However, there are other statements about the decision that can be made:

  1. The Court specifically stated that, based on the facts of Heller's complaint, the prayer for relief could be satisfied through the issuance of a license by the District of Columbia to Heller permitting him to keep a handgun in his home. Thus, permit laws are not prima facie an unConstitutional infringement on the right to keep and bear arms.
  2. The Court also indicated that they are not overturning restrictions on possession in 'sensitive' locations such as schools or government buildings. Thus, such restrictions - which are being expanded as fast as legislatures can justify doing so - are also not prima facie unConstitutional.
  3. The Court made no comment as to whether the Fourteenth Article Amending the Constitution of the United States incorporates the Second and extends its provisions to the several states. Thus, even laws similar to DC's in other US jurisdictions may not be prima facie unConstitutional under Federalism doctrine.
  4. The Court does not set a standard for examining future cases - although it is stated in the decision that the home handgun ban in DC does not pass muster under any reasonable standard of scrutiny.
  5. The decision was 5-4, along expected ideological lines (Justices Stevens, Breyer, Souter, and Ginsberg in dissent). This is troubling, as it implies the definite possibility that, should the decision be revisited after a Justice in the current majority leaves the Court, the holding of an individual right could well be overturned. The Court's doctrine of stare decisis weighs in against casually overturning the precedent established, but it is not an ironclad guarantee - otherwise such decisions as Plessy v. Fergusen would never have been overturned by later decisions such as Brown v. Topeka, KS, Board of Education.
  6. Really, the only thing we can be sure of at this point is that lawyers who argue gun cases are gong to be making a lot of money in coming years, as various state and local laws are individually challenged and work their way through the system via appeal, cross-appeal, and reappeal. The precedent established by today's decision is important, but not broad enough to short-circuit such litigation. It is a blow to the gun-control advocacy groups, but it is far from fatal.

    Edited 6/27/08 09:10 to add: Other analyses I'm seeing suggest that some of the ambiguities and non-addressed issues in the decision were to get the fifth vote, said to be from Justice Kennedy (who has been the swing vote in other cases). If this is in fact the case, it makes the closeness of the decision even more troubling.

    Some further possible ramifications:

    1. There is the distinct possibility that "Shall Issue" may become the law of the land - that is, if a permit-issuing authority wishes to deny a permit, they may have to show objective cause, such as felony conviction or mental illness, for the denial, and otherwise issue.
    2. Similarly, laws requiring transport or storage unloaded or otherwise unusable may fail to pass Constitutional muster. In the Opinion, Justice Scalia characterized a gun that was not in usable condition as "a club".
    3. The discussion of United States v. Miller in the Opinion, and the relevance of "common use in militia or military service" to the question of what weapons would be covered by the Second Article Amending the Constitution of the United States, points to the possibility that the National Firearms Act of 1934, the Gun Control Act of 1968, and subsequent legislation banning semi- and fully-automatic firearms and so-called "assault weapons" may not withstand Constitutional scrutiny.

    In short, although the Court attempted to rule narrowly, as per longstanding practice, the ruling in District of Columbia v. Heller may well turn out to have broader and farther-reaching effects than may have been anticipated - but this will only be determined in future litigation.

    Edited 6./28/08 18:20 to correct references to the case to the correct name of District of Columbia v. Heller.

Seen elseforum, posted by an eighteen-year-old signing himself 'Cambreath'...

long, but worth reading )

... is President George Washington's 'Farewell Address'. It can be found in the original at http://en.wikisource.org/wiki/Washington%27s_Farewell_Address and in a modern translation at http://blag.xkcd.com/2007/01/29/washingtons-farewell-address-translated-into-the-vernacular/. It's definitely worth reading and thinking about.

First, the annual reminder about voting.

Next, a repeat of last year's bitch about the ballot.This year was same shit, different slate. The only two contests on the ballot this year were Proposition One, an attempted power-grab by the state legislature under the rubric of 'budget process reform', and Proposition Two, a bond act for roughly three-and-a-half-billion dollars, only half of which would go to improving the transportation system that is used by well over half the commuters in the state.  No on One, Yes on Two - but that's just my opinion. All of the races for offices were 'uncontested' (same definition as last year) or no-votes.

Interesting observation: All of the anti-abortion ranting that makes the media seems to come from people who tend to take positions on other issues that are considered characteristic positions of the extreme wing of the Republican party.  Yet the Right-to-Life party in New York State seems to universally and consistently endorse ... Democrats? Wazzupwiddat?

This is our generation's Karen-Anne Quinlan case.  And we're not handling anywhere near as well as our parents handled that one.

Having secure my moral right to bitch for the next four years, I'm just going to say that the ballot this year SUCKED.  With all the cross-endorsements for parties that represent things that I cannot in good conscience allow my vote to endorse even indirectly, a good third of the races on the ballot available to me were either no-votes (because all of the candidates were endorsed by no-vote parties), or 'uncontested' (because only one candidate wasn't endorsed by a no-vote party).  This is by far the worst I have seen in twenty-three years of voting eligibility.  And all of the parties were either taken over by their extremist wings, or are by their very nature extremist on their central issue.  Where in bloody blue blazes are the MODERATES, fercryinoutloud?

(For the record: I consider anyone endorsed by the Socialist Workers' Party, the Working Families Party, or the Right-to-Life party to be unsuitable for receiving my vote.  There were fifteen races (counting vote-for-more-than-one races as multiple races, one for each vote to the position I am permitted to cast), and three of them were no-votes and two 'uncontested'.)

Most of what I want to say, I've already said, as far back as 1999, and added to this LJ in 2003. So, for the important stuff, take a look at this entry.

Last yearFour years ago, the voting was a statistical dead heat, and in some states, the margin between the two main candidates was smaller than the number of votes garnered by the third-party candidates. This year, it looks to be much the same situation - which makes it more important than ever to make your voice heard. Most of the choices available are less than satisfactory - but even so, you can make a difference by voting. So go ahead and do it. Then, tomorrow, complain loud and long about the crappy choices you were offered, and keep complaining. But go to the polls and pull that lever, if for no other reason than to show that you care about how your country is governed.

Techie discussion of the Electoral system... )
Three years ago, the world changed.  Three years ago, I began posting to the Usenet newsgroup alt.callahans a series of articles that would eventually lead me into occasionally 'blogging'.  Those articles can be found in the Google archives by searching for the subject containing 'One New Yorker's Impressions', or you can read them at http://home.cyburban.com/~jzeitlin/american/wtc.html.  At the end of that compilation, in an article written a year after the Events, I pointed out the direction that I felt that we, as a country, needed to go.

I have made the error of holding my tongue over the past two years, and saying nothing, as I saw my country head in almost exactly the opposite direction to the signpost that I raised.  I have seen the liberties that have made us what we are become more restricted; I have seen the government arrogate more and more power to itself, in the name of fighting terrorism; I have seen 'sensitive' locations become garrisoned fortresses, where people freely walked before.

We have failed to bear the burden laid upon us by the three thousand people whose lives ended three years ago this day.  We have failed to bear the burden laid upon us by a group of men with a vision, who acted two hundred and twenty-eight years ago to deliver 'a new nation, conceived in liberty'. And we do not appear to care that we have failed in this way.  We have given away our liberty, and not for security, but for an unconvincing illusion of security.  And in doing so, we show - as one of that group of men said - that we are deserving of neither that liberty nor that security.

I do not know what to do.  I can speak out, but I am a small voice crying in the wilderness. I cannot vote to restore what we have lost, because there are no candidates who will implement that restoration. But I know not what other options I have, to wake us up.

Let me preface this rant with a reminder to my readers that I'm in the United States, and am talking about the situation in the United States. What I say here absolutely shouldn't be assumed to apply to you if you're not a U.S. citizen.

One of the favorite pastimes in the United States seems to be arguing about politics ... [more rant] )