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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsBREAKING: Federal Appeals Court Strikes Down DOMA In Opinion By Republican-Appointed Judge
Chief Judge Dennis Jacobs is a very conservative judge. He joined a court decision effectively declaring corporations immune to international human rights law even when they trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despots political opponents, or engage in piracy. And he once gave a speech to the conservative Federalist Society decrying the anti-social effects of attorneys providing free legal services to the less fortunate.
And yet, this severely conservative judge is also the author of an opinion striking down the unconstitutional Defense of Marriage Act. Even more significantly, Chief Judge Jacobs opinion concludes that any law which discriminates against gay men and lesbians should be treated very skeptically under our Constitution:
We conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically subjected to discrimination,; B) whether the class has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society, C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless. Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. 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.
This is a Really. Big. Deal. Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discrimination against gay people must have an exceedingly persuasive justification. This is the same very skeptical standard afforded to laws that discriminate against women. If Jacobs reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.
cont'
http://thinkprogress.org/justice/2012/10/18/1040901/breaking-federal-appeals-court-strikes-down-doma-in-opinion-by-republican-appointed-judge/
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BREAKING: Federal Appeals Court Strikes Down DOMA In Opinion By Republican-Appointed Judge (Original Post)
Segami
Oct 2012
OP
Chief Judge Jacobs’ opinion concludes that any law which discriminates against gay men and lesbians
Segami
Oct 2012
#1
I can't believe what I'm reading but its true. Candy, make room for Chief Judge Dennis!!
Segami
Oct 2012
#3
Pat Robertson better double up on his nitro-tab dose after he reads this breaking headline..LOL!
Segami
Oct 2012
#6
The decision reads like a thing of beauty. It is amazingly well written. LINK:
msanthrope
Oct 2012
#8
Only section 3. Section 2 regulating full faith and credit between states still stands.
ieoeja
Oct 2012
#16
re:BREAKING: Federal Appeals Court Strikes Down DOMA In Opinion By Republican-Appointed Judge
allan01
Oct 2012
#17
thansk segami...i had a rotten crappy horrible day... but this just put a smile on my face.
DonRedwood
Oct 2012
#18
Segami
(14,923 posts)1. Chief Judge Jacobs’ opinion concludes that any law which discriminates against gay men and lesbians
should be treated very skeptically under our Constitution:
Raster
(20,998 posts)2. Suck on this Fat Tony!
"And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court."
Segami
(14,923 posts)3. I can't believe what I'm reading but its true. Candy, make room for Chief Judge Dennis!!
porphyrian
(18,530 posts)4. . n/t
closeupready
(29,503 posts)5. Isn't this bigotry against Evangelical Christianity?
Yes, that was a sarcastic post predicting how people like Pat Robertson will respond.
Segami
(14,923 posts)6. Pat Robertson better double up on his nitro-tab dose after he reads this breaking headline..LOL!
yodermon
(6,143 posts)7. will Kennedy be the swing vote? n/t
msanthrope
(37,549 posts)8. The decision reads like a thing of beauty. It is amazingly well written. LINK:
Link provided from another thread by DUer Bigtree--
http://www.scribd.com/doc/110430137/Windsor-Second-Circuit-Opinion
Segami
(14,923 posts)10. Thanks!
libodem
(19,288 posts)9. Cue the music
Hallelujah Choir!!!
Gold Metal Flake
(13,805 posts)11. Clearly this judge is a comminazi and a secret muslin.
Cue the hate ejectors in the so-called Liberal media.
Segami
(14,923 posts)15. LOL!
hifiguy
(33,688 posts)12. Wow! That opinion is about as airtight as it gets
when a controversial issue comes before an appellate court. There is virtually no wiggle room left for the reichwingers there. And yes, I was trained as a lawyer.
on!
MadrasT
(7,237 posts)14. Spectacular news. Thanks! n/t
ieoeja
(9,748 posts)16. Only section 3. Section 2 regulating full faith and credit between states still stands.
This is one of 7 cases in which federal courts ruled Section 3 was unconstitutional. In fact, this was the ruling in an appeal of an earlier case overturning section 3.
It joins 4 other cases pending review by the US Supreme Court.
Section 3. Definition of marriage
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.
Regarding section 2, the most common argument put forward regarding section 2's unconstitutionality is that the section violates the Full Faith & Credit clause in Article IV, Section 1 of the US Constitution which states:
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.
Sentence 1 says States have to accept marriages in other states. Sentence 2 authorizes Congress to determine the Effect of the State recognizing marriages in other states. Section 2 of DOMA states that no state "shall be required to give effect to" same gender marriages.
So Alabama has to give "Full Faith and Credit" to a same gender marriage in Massachusettes, but it will have no "Effect".
allan01
(1,950 posts)17. re:BREAKING: Federal Appeals Court Strikes Down DOMA In Opinion By Republican-Appointed Judge
zhazam ! made my day i can hear the qrm( static ) now ! activist judge!
DonRedwood
(4,359 posts)18. thansk segami...i had a rotten crappy horrible day... but this just put a smile on my face.
can't wait to show my husband when he gets home.