The Defense Of Marriage Act (DOMA), which prevented the Social Security Administration and other agencies from recognizing same sex marriages, has been found unconstitutional by the Supreme Court.
Unfortunately, this leaves open the question of whether Social Security can recognize same sex marriages when the married person has moved to a state that refuses to recognize same sex marriages since the Social Security Act relies upon the law of the state in which the person is domiciled. Apparently, the ruling is so broad that it is likely that the Court will rule that state laws that refuse to recognize same sex marriages solemnized in other states are also unconstitutional. However, it will probably be at least a year before the Supreme Court rules on that issue. In the meantime, my bet is that Social Security will, at the least, recognize the same sex marriages of those who have moved to a state that refuses to recognize same sex marriages as deemed marriages. Update: On second thought, I can't bet on deemed marriage being the solution because the statute says that the only sort of legal impediment that qualifies one for a deemed marriage is "an impediment (I) resulting from the lack of
dissolution of a previous marriage or otherwise arising out of such
previous marriage or its dissolution, or (II) resulting from a defect
in the procedure followed in connection with such purported marriage." Neither of these applies to a situation where a person duly married in one state moves to another state which refuses to give full faith and credit to the marriage.
Update: It's not particularly relevant to Social Security but you ought to read some of what Justice Scalia said in dissent. Let's just say, he really disagreed with the majority opinion which he categorized as "black-robed supremacy." He had a few other things to say as well. As we say in the South, bless his heart.
Update: It's not particularly relevant to Social Security but you ought to read some of what Justice Scalia said in dissent. Let's just say, he really disagreed with the majority opinion which he categorized as "black-robed supremacy." He had a few other things to say as well. As we say in the South, bless his heart.
To bad we don't have 9 Scalias on the court.
ReplyDeleteI cannot help but wonder what Washington, Jefferson, Franklin, etc. would think about this understanding of constitutional rights.
ReplyDelete9 Scalias probably means the end of Social Security disability. After all, he is a major proponent of "original intent" and disability wasn't in the original Social Security Act. Or, it might mean the end of Social Security itself since it wasn't in the original Constitution...
ReplyDelete"I cannot help but wonder what Washington, Jefferson, Franklin, etc. would think about this understanding of constitutional rights."
ReplyDeleteChances are, they would have said that the Federal government had no business defining marriage. It should have been left up to the states. If the states choose to recognize same-sex marriage, so be it. Then there's the little matter of the Full Faith and Credit Clause.
I think Washington Jefferson and Franklin would have said, " well look at that, it still works."
ReplyDeleteFor those "original intenters" who think this is some wild distortion of the constitution, here's an analogy: Imagine in 1810 that the Federal government paid some sort of benefit to widows of revolutionary war veterans. Imagine that Congress enacted a law stating that it was the official policy of the United States that miscegenation was immoral, and the Federal government would refuse to recognize widows of veterans if they were of a different race, even if they widow was legally married to the veteran pursuant to state law.
ReplyDeleteWhat might the Marshall Court have done with a challenge to the Federal law? I don't know, but it's certainly a reasonable possibility that the Marshall court would have declared the law unconstitutional, even under constitutional analysis at the time.
"left up to the States"
ReplyDeleteahh yes, let's leave the giving and withholding of fundamental civil rights for a disadvantaged class of people to the States, those bastions of wisdom and rational thought with no history whatsoever of systematic oppression of disadvantaged groups until being forced into line by the federal government.
The Court hasn't been presented with the ultimate question yet, but go ahead and let that DC circuit opinion (penned by a very conservative judge) serve as the writing on the wall.
The argument for homosexuals being some sort of protected class is strong--just read that DC opinion to see what it looks like. If that class gets any type of heightened scrutiny, there simply is a lack of good (i.e. non-Christianity based) reasons for the government to disallow gay marriage and meet that heightened scrutiny. It's over, go home.
An important reminder: The voters in California voted to support traditional marriage. California politicians rejected the will of the majority in addressing this single issue. One of the reasons why California politicians are held in such low regard in any poll. Why they are reelected is another discussion...
ReplyDeleteAn important reminder: popular sentiment, even popular sentiment codified into some State law, is no legal basis for denial of basic civil rights.
ReplyDeleteSee, e.g., the Civil Rights movement in the American South circa 1940-1970.