Apologies for the source

[morningfog]

Last edited Fri May 11, 2012, 09:03 PM - Edit history (1)

Jonathan H. Adler • May 10, 2012


http://volokh.com/2012/05/10/the-incoherence-of-president-obamas-stance-on-gay-marriage/

I've been informed this is a RW source. I honestly didn't know this. I came across volokh from regular reading of another legal blog, SCOTUSBlog.

While I thought the critique had some merit, I don't want to support a RW blog or writer. Sorry for the source.

[Capt. Obvious]

1. Haters gonna hate

Wanted to be the first one in

[11 Bravo]

4. +1 n/t

[morningfog]

9. I don't know about this author, but I am no hater.

Obama's statement and support, including end DADT, is historic and impressive. I applaud him. We are making progress and still have a very long way to go.

[SidDithers]

21. Yes, they are...nt

Sid

[Tx4obama]

2. Gay Marriage Moves Closer to Supreme Court

Gay Marriage Moves Closer to Supreme Court

Here: http://mobile.reuters.com/article/idUSBRE84A1CQ20120511?irpc=932


Edited to add:

The U.S. Supreme Court will resolve the issue just like they did with 'Loving v Virginia' : http://en.wikipedia.org/wiki/Loving_v_virginia

[morningfog]

6. It seem like every poster in this threads disagrees with Obama.

All the comments about the Supreme Court and such. He says it is a state's right issue.

[DevonRex]

12. Federal Powers are Enumerated. Period.

What part of that do you not get? States DO control marriage but with certain limitations. There will need to be a Loving type case eventually.

[morningfog]

19. And Obama could order the DOJ to join challenges to Prop 8 and others.

That is the point the author is making.

Put more directly, you cannot hold the position that DOMA is unconstitutional while accepting or supporting states passing similar laws.

[DevonRex]

22. OR you can do what he did, which is provide the BASIS for its overturning.

Which is exactly HOW it was overturned. Go do some reading.

[SunsetDreams]

27. Wait a minute

Put more directly, you cannot hold the position that DOMA is unconstitutional while accepting or supporting states passing similar laws.

In your opinion, are you saying that he should direct the DOJ to not "enforce" a law(DOMA) because he feels it is unconstitutional? All he can do is choose not to defend it, as I explained in the other OP that you created today, of which you did not respond.

Here is my reply to you:

I hope that everyone also knows that the President can't just declare any law as unconstitutional and then decide not to enforce it at will. That would set up a really bad precedent and could be viewed as a Dictatorship and not a Democracy. There is a reason for separation of powers. It has to make it's way through congress on repeal or be declared unconstitutional by the Judicial Branch.

Furthermore maybe you were unaware of it at the time, but the source you are using is a RightWing blog.

[Tx4obama]

14. The Supreme Court can overrule the state's laws.

I am sure this is President Obama's strategy, to let the Supreme Court rule the state's laws unconstitutional.

Don't forget Obama was a constitutional law professor and he would know the best way to eliminate the states from discriminating - and having the SCOTUS rule will be an awesome way to stop ALL states from discriminating against marriage equality.

[morningfog]

20. Exactly, and he could lend the DOJ and the federal resources and support to challenging the laws.

[DevonRex]

23. Obama and his justice dept provided the fucking BASIS for overturning Prop 8.

Go figure it out. I''m done.

[SunsetDreams]

28. .

[DevonRex]

3. Complete mis-characterization and wrong conclusions.

Last edited Fri May 11, 2012, 08:05 PM - Edit history (2)

1. Federal powers are enumerated. Marriage is not one of them. Period.

2. Marriage is controlled by the states. Always has been. Always will be, absent a constitutional amendment granting marriage powers to the Federal Govt.

3. Obama stated basically that states control marriage laws, which is true, by and large, unless and until they bump up against the full faith and credit clause or a Supe decision like Loving or another law such as DOMA.

4. Obama did not say that states should be "allowed to" "reach different conclusions at different times" regarding marriage equality. He said that they "are arriving at different conclusions at different times."

5. This is precisely what lead to the Loving decision which led to all states recognizing interracial marriage.

6. President Obama's Justice Department has already declared sec 3 of DOMA unconstitutional and refuses to defend it. This led to the overturning of Prop 8 in California, as was evident in Olson's and Boies' winning argument.

7. Eventually there will be enough case law, just like overturning Prop 8, that it will be very difficult for the Supreme Court not to act on LGBT marriage as the previous one did in Loving with interracial marriage. That is my prediction.

[morningfog]

7. Section 3 of DOMA is enforced, just not defended.

[Tx4obama]

16. DOMA is headed to the Supreme Court. n/t

[bhikkhu]

5. All steps in the right direction

...and everyone here should clearly realize now that Obama, with his stance on DOMA and his recent statements, is not the problem in this long fight. In spite of opportunistic headlines.

[ibegurpard]

8. maybe so

But what's being written and talked about is that President Obama is the first sitting president to endorse gay marriage. Perception sometimes becomes reality. All the parsing in the world isn't going to change the momentousness of this.

[morningfog]

11. Indeed. I think this marks an end to a POTUS ever being against marriage equality.

[ProSense]

10. First of all

Volokh is a RW blog.

Secondly, the author seems to be arguing against repealing DOMA, or at the very least trying to create the impression that the case for doing so isn't justified.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

This is pure obfuscation.

Finally, why the hell is anyone listening to Jonathan H. Adler:

"Adler supported former Tennessee Senator Fred Thompson in the 2008 presidential election."

http://en.wikipedia.org/wiki/Jonathan_H._Adler

Two dumbasses.

[morningfog]

13. Character assassination notwithstanding, he makes good points.

[ProSense]

15. No he doesn't. n/t

[DevonRex]

18. Fuck no he does NOT. He's a RW hater who does NOT want to overturn DOMA. nt

[Ikonoklast]

24. To you maybe.

Do you know what a 'tell' is?

[SunsetDreams]

26. I don't take my points from a right wing hack or blog

[DevonRex]

17. THANK YOU!!!!!!!!!!!!1

Good grief. I was having conniptions over here.

[spanone]

25. bitch if he does, bitch if he doesn't. bitch, bitch, bitch

[JoePhilly]

29. Here .... you might need this ...

The wheels make it easy to move.

[dsc]

30. not necessarily correct

the non recognition makes it impossible for the state to actually grant marriage rights. A state can't grant a true marriage if the feds can refuse to recognize the marriage thus negating the rights of say immigration. On edit I don't agree with his state's rights stance here but don't necessarily find a conflict with thinking DOMA is unconstitutional when it doesn't let the feds recognize gay marriages performed by states.

[Lex]

31. If an OPPOSITE sex marriage takes place in any state, it is recognized in ALL states

and that should be the case with same sex marriage. It's the Full Faith and Credit Clause of the US Constitution that causes this, and an exception shouldn't be carved out for same sex marriage "by state." That's BS.

[DevonRex]

32. The full faith and credit clause has to do with

legal judgments, i.e., property, monetary judgments, etc., in a court of law. That kind of full faith and credit. Like divorce settlements, alimony, property disputes, wills.

[Lex]

33. Umm, no, sorry that's not true.

It's been well-known since DOMA passed that the Full Faith and Credit Clause has very much to do with this topic.

Since 1996, legal experts and political leaders have debated the constitutionality of DOMA. Some have argued that it clearly violates the "full faith and credit" clause of the U.S. Constitution, which reads, "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."

http://www.pbs.org/newshour/bb/law/gay_marriage/act.html

[DevonRex]

34. Of course it has to DO with this topic. But not for the reason

people think it does. But thank you for the PBS link, too. This is all fascinating. My favorite thing is that we're all learning so much together on the subject. Here's the article that I learned a lot from regarding it and how it applies:

http://www.huffingtonpost.com/tobias-barrington-wolff/doma-repeal-and-the-truth_b_905484.html

[Lex]

39. In the summary

from the link you posted:

"The full faith and credit provisions of DOMA are a gratuitous affront to the dignity of 10,000,000+ LGBT Americans. Never before in the history of the Republic has Congress singled out one class of citizens and proclaimed that their relationships would be treated with hostility in interstate relations."

This is where eventually the US Supreme Court will step in. I hope some of the conservative dinosaurs on the bench now will no longer be there when it happens.

[DevonRex]

43. Isn't it beautiful? We know this is where it's going and we'll get to see it in our lifetime.

The fact that DOMA strikes down the full faith and credit clause, so that it cannot be used to establish the validity of an LGBT marriage is absolutely an affront. Because FFAC is exactly what has ALWAYS been used to make marriages valid from one state to another historically in the United States, since the very beginning of our nation. It is gratuitous on its face.

And I'll tell you what. It's harmful to more than just the married couple. Say they've been married 10 years and have children. Theyve been transferred to another state since their marriage. One is killed in an accident. The surviving spouse normally would have inheritance rights, custody rights, etc. But their new state does not have to honor ANY of that, since the basis of inheritance and custody is the marriage itself which the new state does not consider to be legal. So the surviving spouse and the children are all hurt. As are the grandparents, potentially. If that couple did not have every little detail sewn up, carved in fucking stone, all could be lost.

And, omg, would some states even want to go after the adoptions? Would they try to say that the surviving spouse wasn't a legal adoptive parent? If they have a law on the books saying LGBTs cannot adopt, what would they do upon learning of the death of one and the other going to court to try to get simple property rights? Try to take away the adopted children? Who would put it past them? I would not. If they're saying they don't have to abide by the FFAC in one area, why would they have to abide by it in another area related to marriage and family?

I'll stop now. Sorry to carry on so, but it just snowballs when you think of just how far they could take this.

[Kaleva]

36. Not in all cases.

States vary in minimum age regquirements, closeness in blood relation and if the recognize common law marriages.

[Lex]

37. If you meet the minimum age requirements in SC, you are still married

if you move to another state. For instance, the age requirements were lower in SC, so sometimes teenagers from NC would go there and get married, and then come back to NC, where they would be considered legally married in NC.

[Kaleva]

38. You appear to be correct. My mistake.

While Michigan doesn't recognize a common law marriage in this state, it will do so for a couple married under such a circumstance in another and they then move to Michigan.

[Cerridwen]

35. Who is jonathan alder? Why should I care what he says? "sexual preference"? Really? (edited)

Last edited Fri May 11, 2012, 09:16 PM - Edit history (1)

Why is a right-wing blog written by a contributor to the national review (another r/w spewing site) and one who has received an award from the nationalist society(?!) and who has apparently, uh, selectively quoted from, oh fuck it, has lied about what is contained in one of the very decisions he linked, being posting to this board?

And let's not leave out the cato institute and his other rah, rah, private property, de-regulate, the invisible had of the trickle-down market bullshit as well.

Ya know, it's tough enough to address, debate, and debunk some of the garbage that takes in those of us on the left without having to address the goddammed right-wing "think-less" tank contributors.

Oh, and since you appear to have a conservative bent, my questions are what is called rhetorical. I understand conservatives have a difficult time with abstract concepts that don't fit their narrow-minded world view and if you are what you appear to be, I don't want you to miss out on the context and intent. If you're not what you appear to be, then consider it an explanation for the readers who are.

edited: thank you so very much for responding to the complaints about the source. Please, please, please...and did I say, please, consider closely vetting those article you post here. Especially if you agree with what appears to be the message. Please.

[DevonRex]

40. Seriously. He apparently

argues *against* doing away with DOMA, thinking that states will just come to their senses on their own and accept marriage equality eventually. LOL. Right. Lots of Southern states STILL don't think interracial marriage should be legal, so without the Loving decision, where would we be? So, there will either have to be a Supe case to strike DOMA down or it will have to be repealed by Congress, one or the other.

[Cerridwen]

41. And, he's an "environmental" lawyer arguing for private property and

less federal gov't oversight of...da, da, duh...environmental pollution caused by...private entities.

Why the bloody hell is this shit here? The tent is not that big!

As to marriage equality...I am so hoping that President Obama just signaled a left turn. Yeah, yeah...what an idealist am I? I'm also a realist who understands politics as I've actually worked in them. I'll "settle" for the signal; and celebrate same...for a couple of months before I start "demanding a pony".

But, back to the point...enough with right-wing bullshit on this board.

[Cerridwen]

42. Thank you for the edit.

Sometimes, when we have a stance on a topic, we can very easily be taken in by someone who appears to take our same position. I have had this happen in the "real" world; you are welcome to learn from my mistake.

I always question those sources with which I agree the most, more stringently than I do those with which I don't. Nice double-standard, huh?

Please, read and vet carefully. The left is under constant attack and the "right" (aka totalitarians) are so very good at manipulation and exploiting our message and our tolerance.

Again...thank you.