Good news out of the 2nd circuit. A second appeals court rules on DOMA:
We conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional. Judge STRAUB dissents in part and concurs in part in a separate opinion.
I know that Dinesh D’Souza is a boil on the ass end of a louse infesting Eric Cantor’s sheets, but still, the juxtaposition of his story with this gives me a chuckle. And when you read the opinion, It Gets Better: Dennis Jacobs, Chief Judge for the circuit and a George H. W. Bush appointee, writing for the majority, handed the House Bipartisan Legal Advisory Group (aka BLAG)* its collective head:
BLAG argues that, unlike protected classes, homosexuals have not “suffered discrimination for longer than history has been recorded.” But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a “history of discrimination.”
More:
The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination…
David Lat, writing at Above the Law, pours an extra pinch of salt in BLAG’s wounds:
It would appear that the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA, has now lost at least six cases in a row — and spent about $1.5 million doing so.
Your taxpayer dollars at work.
One last thought: Lat points to commentary by Chris Geidner at BuzzFeed (where you can find the full text of the opinion) who notes what seem to me to be a couple of very important elements to the court’s ruling. For one, as Jacobs wrote:
Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.
And for another, perhaps yet more significant determination, Geidner writes:
Beyond striking down the law itself, the most significant development in today’s ruling is that the Second Circuit held that laws that classify people based on sexual orientation, like DOMA, should be subjected to a heightened form of scrutiny when courts examine the government’s claimed reasons for such laws. The holding that “intermediate scrutiny” applies makes the Second Circuit the first federal appeals court to do so. The First Circuit did not apply heightened scrutiny in its earlier decision striking down DOMA.
The Second Circuit, however, held:
“In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”
I Am Not A Lawyer, so I’ll leave it to those members of the commentariat that are to weigh in on the significance of those aspects of the ruling. But naively, it seems like a big deal to me.
All of which to say: good times.
And to celebrate such, how about a couple of tunes? The first, sent to me by a member of the BJ community, is a sweet (perhaps too much so for some of you jackals) love song, purposed now to support same-sex marriage rights in the various referenda up for grabs around the country:
<div align=”center”><iframe width=”560″ height=”315″ src=”http://www.youtube.com/embed/vll2t3RNdbE” frameborder=”0″ allowfullscreen></iframe></div>
And the second? Well, consider it an antidote to any excess of sentiment above:
<div align=”center”><iframe width=”420″ height=”315″ src=”http://www.youtube.com/embed/Y4ORIIT-W80″ frameborder=”0″ allowfullscreen></iframe></div>
*BLAG is, of course, hardly bipartisan. With three GOP members to two Dems, it is the vehicle for the House leadership to bother themselves with what American citizens do in their private lives. It took up this case after the Obama administration decided it could not defend DOMA’s constitutionality.
Image: Augustus Leopold Egg, The Travelling Companions, 1862.
LanceThruster
Gay rights are human rights!
BGinCHI
My 9.5 month old danced his ass off to that GB song.
He hates gay bashers.
BGinCHI
@LanceThruster: And vice versa.
beltane
My only concern is that gay and liberal marriages will be threatened by the shameless promiscuity and adulterous habits of right-wing evangelical Christians.
RosiesDad
It seems like you missed a quote there, Tom, because what is block quoted above and below “More” is exactly the same. Unless, of course, Dennis Jacobs was turning prose for the Department of Redundancy Department.
ShadeTail
I would just like to observe that the two block quotes underneath the Augustus Leopold Egg painting are exactly the same.
Mnemosyne
Wait, African-Americans and Latinos have “suffered discrimination for longer than history has been recorded”? Was that before or after the Babylonian, Egyptian, Mayan and Incan empires?
That really has to be in the top 10 of stupidest legal arguments ever advanced.
Spencer
Another music video to celebrate. This won a special GLAAD award in 2006. Be prepared to have your tears jerked.
http://www.youtube.com/watch?v=zwFS69nA-1w
Michael
Giving intermediate scrutiny to homosexuals is a big deal. The way equal protection works is, if you challenge a law as violating the equal protection clause, the first question the court asks is whether you belong to a protected group/classification.
Classifications based on race get a different standard of review than those based on gender, and as such, those race-based discriminatory laws are harder to defend as constitutional than gender-based ones. Likewise, discrimination against a non-protected group has a very low standard of review, called “rational basis review.” Basically, as long as the government can articulate any rational explanation for the law’s relation to a “legitimate” government interest, it’s good. Most laws survive this standard of review.
Gender-based discrimination gets “heightened” or “intermediate” scrutiny. That means the law has to be “substantially related” to an “important government interest.” This is a much higher burden to meet.
Race-based discrimination gets “strict scrutiny,” which requires the law to be “narrowly-tailored” to achieve a “compelling government interest” in order to be constitutional. Laws almost never survive this test.
Courts that have upheld DOMA have said that homosexuals are not a protected group, and as such DOMA is reviewed under the rational basis standard, and that it does indeed pass the test. Prior to today, courts that have struck down DOMA have held that homosexuals are not a protected group, but the law can’t even survive the lax rational basis standard.
Today, the Second Circuit said homosexuals ARE a protected group, and laws that discriminate against them need to be evaluated under the intermediate scrutiny standard.
The reason this is significant is that, even if DOMA is unconstitutional under a rational basis standard, if homosexuals aren’t a protected group, states and the federal government would likely have little trouble crafting other discriminatory laws against gays that DO survive rational basis review.
However, if homosexuals are a protected group, then it becomes much more difficult to pass any laws that discriminate against them. The implications beyond the constitutionality of DOMA are far more reaching.
KG
heightened scrutiny, even if it’s intermediate scrutiny, is probably the most important thing to come out of this decision. The default position is “rational basis” which basically means if you can come up with any rational reason for the law, then it stands.
Intermediate means there is an identified “important governmental interest” and that the law is substantially related to furthering the interest.
Strict scrutiny means the law has to be narrowly tailored to further a compelling governmental interest.
Should be interesting to see what happens before the Supremes. I’d recommend keeping an eye on the briefs for certorari, especially the amcius briefs – that’s where a lot of crazy tends to hide in plain sight.
catclub
can you imagine how much those clothes in the picture weigh?
I would guess that since they are not bathed in sweat, it must be about 45 degrees in that compartment. Long sleeves and gloves.
A summer day in Scotland?
KG
@Michael: yeah, I never quite understood how gays wouldn’t be considered “discreet and insular minorities” at least in the legal sense. Still, can’t wait to see what happens next.
Tom Levenson
@ShadeTail: @RosiesDad:
Yup. Fix’t. Thanks for the catch. Blog in haste and all that.
giltay
Up here in Canada, it was the fact that the federal government does have control over the definition of marriage that led to the Civil Marriage Act that allowed same-sex couples to marry (by changing the unconstitutional definition).
TheMightyTrowel
@catclub: clearly you have never been in a british train with no heat and the windows open on a glorious british “summer” day. I would have welcomed dresses that heavy.
monkeyfister
Will no one think of the poor, doomed Box Turtles? Is there not so much as a swoon and a pearl-clutch for all the man-on-dog love that will be forced to transpire? Where is the care and despair for the MILLIONS of Happily-Married Heterosexual Couples who will now be forced into a hedonistic free-for-all of feverish, Homosexualist behaviors BY LAW!!!
Can no one remember back to before 1996, when boys were marrying their turtles for licentious reasons, when even Bull Mastiffs lived in tail-tucked fear of their Masters, when “Bob, and Carol, and Ted and Alice” was the LAW, and we absolutely HAD to pass the Defense of Marriage Act to stop the wanton depravity occurring on our very streets???
Me neither!
Today is a good day for America.
Redshift
Gosh, does this mean I should put more effort into figuring out who I’m going to gay marry? I mean, if it’s overturned, gay marriage becomes compulsory, right?
Phoenix_rising
Cold comfort for House Republicans, and all of us whose tax dollars they piss into the wind with these appeals:
If you have to get your ass handed to you by an old widow, lady, Edie Windsor is the old widow lady that there’s some dignity in getting whipped by. She’s scraped tougher things than that smarmy Paul Clement off her shoe in her day.
MobiusKlein
@Redshift: Gay marriage is compulsory, if want to get married and and are gay.
and if you have a partner who wants to get married.
be a fraid.
srv
Hmm. Ted Olson is at the Commonwealth Club tonight discussing Prop 8.
Roger Moore
@KG:
Yes. My impression is that “rational basis” is not very different from “plausible excuse” in its practical effect.
gogol's wife
Yay Augustus Leopold Egg!
JCT
@Mnemosyne:
Considering the source of said argument this is not surprising, no? These congressional idgits sure enjoy flushing tax dollars down the toilet in the name of enshrining bigotry in our nation’s laws. So laudable.
Yutsano
Ohj frabjous day and all that!!
elmo
Threadjack! Where o where was that first video filmed? It looks like hooooooooooooooooome…
/threadjack
Sorry, carry on.
SatanicPanic
@Redshift: No, you also have a choice to marry your dog. Because that’s next!
clussman
More music video goodness:
http://youtu.be/d2Kj5jsw4gc
I’m a Macklemore fan.
Hal
The standard for determining discrimination is that it must occur for longer than human history? That’s some mighty large shoes to fill.
Ben Cisco
That’s comedy GOLD right there.
Crusty Dem
@clussman:
Came to post this, you beat me to it. The Heist is awesome, but this is the real video:
http://www.youtube.com/watch?v=hlVBg7_08n0
J. Michael Neal
Good Max is dealing today. The Yankees are down 2-0 and have no hits yet midway through the fourth inning.
I have not yet psychologically adjusted to the idea that the Tigers’ core strength is starting pitching.
Mnemosyne
@Hal:
Ironically, the only group I can think of that’s been discriminated against for all of recorded human history is women, and yet discrimination claims involving women only get “intermediate scrutiny.”
Josie
Thanks for pointing out that the BLAG decision to defend DOMA was not bipartisan. The vote was, in fact, 3-2. I’ll leave it to you to figure out which three and which two. It pisses me off that our Republican friends are so incensed about the deficit that they feel free to throw good tax money down this rat hole.
Culture of Truth
“my travelling companion” is also from a line from a Paul Simon song.
J. Michael Neal
Now 4-0 in the bottom of the 4th after a 2-run bomb from Cabrera.
gocart mozart
Actual footage of D’Souza getting fired
http://www.youtube.com/watch?v=-RvNS7JfcMM
quannlace
I’m just fascinated by that Egg painting at the top of the post. That’s a hell of a lot of gray satin to cart around on a train ride. Are they twins, sisters or is it some Victorian allegory?
piratedan
OT: but this was too good a post to ignore….
http://maddowblog.msnbc.com/_news/2012/10/18/14540741-the-economy-and-the-amnesiacs?lite
Culture of Truth
@Michael: Well put.
? Martin
@Hal:
Even the poor unicorn isn’t a protected class.
Culture of Truth
@quannlace: The rest of the family of 5 are under the dresses
? Martin
@Culture of Truth: There’s messicans under there! I just know it!
Sly
The dissenting opinion is weird. The judge argues that the 1971 Baker v. Nelson case should be binding precedent and that DOMA survives the more lenient rational basis review, but fails to mention that the judiciary didn’t even have heightened (or intermediate) scrutiny to work with in 1971. It wasn’t introduced as a standard by the Supreme Court until Craig v. Boren in 1976.
Culture of Truth
@? Martin: how about the emotionally unavailable?
Hill Dweller
@piratedan: Willard’s surrogates are going on TV and lying about everything, with little push back from the innumerate media.
Willard’s tax plan is a joke he can’t pay for. His 12 million jobs plan is laughable. The studies they cite to bolster their policies don’t actually support their claims.
Willard isn’t proposing any actual policies, but he will still get nearly half the voting public’s votes simply because he has an “R” after his name.
JGabriel
__
__
Tom Levenson @ Top:
__
Reminds me of that line from The West Wing:
.
chopper
@Hill Dweller:
so it’s a day of the week, then?
piratedan
@chopper: doesn’t solve the problem that we have a major “news” outlet broadcasting an alternate version of reality and the people that they reach and influence have a very real impact on the idiocy that is imposed on our daily lives.
Wish I had a solution for it, but hell….I think everyone feels the same way
Patricia Kayden
“It took up this case after the Obama administration decided it could not defend DOMA’s constitutionality.”
So President Romney will defend DOMA’s constitutionality and we’ll be back to square one, I presume. I guess he’ll also work to reinstate DADT (although if Dems hold the Senate, he’ll be stymied).
Jeff Spender
So remember that soup kitchen that Paul Ryan bust into to wash clean dishes and generally act like an asshole?
Donors are pulling their money away from that soup kitchen in protest of the guy who runs it speaking out, apparently not caring that they’re increasing human suffering to defend a fucktard.
trollhattan
@Patricia Kayden:
Doubt Willard would reinstate DADT–a sissy Clinton policy. He’d establish PTINGTHO–Persecute, Turn-In & Get the Hell Out. Also, too, free haircuts on the floor.
Spatula
@srv:
This has always made me highly suspicious.
Why the hell does an evil fuck like Ted Olson support gay marriage so strongly?
There has to be a catch.
JGabriel
__
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chopper:
Not just any day of the week, no, it’s a day that ends in ‘y’!
.
Eric U.
@Jeff Spender: fund raising time
GregB
@Jeff Spender:
I am pretty sure they have now realized that doing the dishes for moochers only causes them to expect to have their dishes done for them.
Bootstraps and Brillos for those who feel entitled to eat.
? Martin
@Spatula:
It gets worse. Cheney supported it as well.
There are really big rifts between the godbotherer wing of the GOP and the drown it in a bathtub wing and the neocon wing. I think in Olson’s case (and Cheneys), they see it as a genuine infringement on individual liberty and just don’t fucking care what the Bible says.
MobiusKlein
@Spatula:
Because people in the Big Blue Room are not disney cartoon cutouts.
Clinton was not without his, uh, shortcomings.
weaselone
@? Martin:
Cheney has a gay daughter. I don’t think you need to go so far as to attribute his position to a strong interest in individual liberty to explain it.
weaselone
@? Martin:
Cheney has a gay daughter. I don’t think you need to go so far as to attribute his position to a strong interest in individual liberty to explain it.
weaselone
@? Martin:
Cheney has a gay daughter. I don’t think you need to go so far as to attribute his position to a strong interest in individual liberty to explain it.
weaselone
@? Martin:
Cheney has a gay daughter. I don’t think you need to go so far as to attribute his position to a strong interest in individual liberty to explain it.
eemom
@Spatula:
@? Martin:
I haven’t read all of this thread, but I would argue that their “support” is worthless, because they ALSO support electing into office their despicable fellow fucktards that would fight tooth and claw against marriage equality.
I realize that Olsen literally represented the Prop 8 plaintiffs. He’s still a fucking hypocrite and enabler of evil.
eemom
@Spatula:
@? Martin:
I haven’t read all of this thread, but I would argue that their “support” is worthless, because they ALSO support electing into office their despicable fellow fucktards that would fight tooth and claw against marriage equality.
I realize that Olsen literally represented the Prop 8 plaintiffs. He’s still a fucking hypocrite and enabler of evil.
ericblair
@? Martin:
In Cheney’s case, it’s because he has a gay daughter. Like Nancy Reagan’s support for stem cell research, they don’t give a shit until it affects one of their own, and then they’re on board. Don’t even bother trying to get them to care beyond that, because they fundamentally don’t.
weaselone
@? Martin:
Cheney has a gay daughter. I don’t think you need to go so far as to attribute his position to a strong interest in individual liberty to explain it.
eemom
@Spatula:
@? Martin:
I haven’t read all of this thread, but I would argue that their “support” is worthless, because they ALSO support electing into office their despicable fellow fucktards that would fight tooth and claw against marriage equality.
I realize that Olsen literally represented the Prop 8 plaintiffs. He’s still a fucking hypocrite and enabler of evil.
weaselone
@? Martin:
Cheney has a gay daughter. I don’t think you need to go so far as to attribute his position to a strong interest in individual liberty to explain it.
gex
@KG: The way the haters see it, there is no such things a gays. Just straight people who sin. Not even remotely a minority group in that case.
weaselone
@? Martin:
Cheney has a gay daughter. I don’t think you need to go so far as to attribute his position to a strong interest in individual liberty to explain it.
gex
@KG: The way the haters see it, there is no such things a gays. Just straight people who sin. Not even remotely a minority group in that case.
weaselone
@? Martin:
Cheney has a gay daughter. I don’t think you need to go so far as to attribute his position to a strong interest in individual liberty to explain it.
gbear
I hope this ruling doesn’t freak out all of the god-botherers in MN enough and get them riled up to vote for the constitutional amendment to ban same-sex marriage here. This is great news but I’m afraid that it may backfire for MN. I REALLY don’t want that piece of excrement to pass.
The ‘Vote NO’ forces are really doing a good job of phone banking and there are signs on almost every block in the Twin Cities, but the churches have a built in audience. The priest just has to stand there and tell them to vote yes or burn in hell (which some of them are doing).
weaselone
Great. My first multipost makes me look like I’m obsessed with Liz Cheney.
trollhattan
@weaselone: Liz iz in ur WordPress, makin’ u stutter.
Ruviana
@Jeff Spender:
You know what to do:
To make a donation to the Mahoning County St. Vincent De Paul Society, money can be sent to P.O. Box 224, Youngstown, Ohio 44501.
burnspbesq
@Mnemosyne:
BLAG is using good lawyers. My hypothesis is that the idjits are getting good advice and ignoring it.
Central Planning
I’m surprised there wasn’t a link to the “I’m a Lumberjack” song
@weaselone: Shorter weaselone: FYWP
cg
Thank you.
YellowJournalism
@beltane: Then I propose DOGMA: the Defense Against Gentile Marriage Act.
(DOCMA: Christian for the C, just doesn’t have the same ring to it.)
gex
@gbear: There’s a small part of me that worries that Ted Olson was big on bringing SSM cases through the federal courts for this very reason.
Clussman
@Crusty Dem: oh man, thanks for posting the real one. Soo much better! The one I posted was from the related videos when you watch Thrift Store.
Dr. Squid
Bloody BLAGgers.
Betsy
@catclub: it looks like silk. Silk is extremely lightweight, and also very breathable. It is cool in hot weather, yet warm in winter. This fabric in the painting looks like silk lustring, which is tough and practically weightless.
I grant you the billowing hoop petticoats are kinda crazy in an eentsy carriage compartment, but why pick on the Victorians for their foolish clothing choices for women? There are plenty of fucked-up, inconvenient, and ridiculous modern fashion imperatives that are just as common today as the horrors of, as you put it, “long sleeves and gloves.” (Oh, the humanity!)
Beatrice
@Redshift: Well, you can’t have Sigourney Weaver, because she’s mine.
Teejay
Who drew this painting? It’s extraordinary.