DOMA had no severability clause!

[Pab Sungenis]

Nowadays, bills are usually written with "severability clauses," which state that if one section of the statute is struck down, the others remain in effect. This became a major issue during the fight against the Affordable Care Act, because ACA had no severability clause so the Court could have killed the entire thing with just one ruling against one part of it.

I just went back and reviewed the text of DOMA. It had no severability clause!

http://www.govtrack.us/congress/bills/104/hr3396/text

SECTION 1. SHORT TITLE.
SEC. 2. POWERS RESERVED TO THE STATES.
SEC. 3. DEFINITION OF MARRIAGE.

No severability. I didn't bother to quote the whole thing, even though it's only one page. Go read it for yourself to verify.

So even though the Courts have ruled that Section III is unconstitutional, the entire Act died today. In fact, the full text of the Windsor decision at http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf specifically states that "the statute" is invalidated, not just Section 3.

That means that full faith and credit comes into play! We won the whole enchilada, although it might take a couple of other court cases to force some states' hands.

[pinto]

1. +1

[PoliticAverse]

2. "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the

Fifth Amendment."

The decision:
http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf

[Pab Sungenis]

10. Yep, and later on it specifically states

"the statute" is invalid, not just "the section of the statute."

They struck down the whole thing.

[HillWilliam]

17. I missed that!

Now that is a way-mo-bigga thing.

[William769]

3. I have been saying about the same thing all morning, but no one seems to be listening to me.

I hope you have better luck.

[MotherPetrie]

4. Kick!

[customerserviceguy]

5. Interesting

It will take a few Federal judges to fully knock this down. But the foundation has clearly been laid for doing that.

[Sherman A1]

6. K&R

[Ms. Toad]

7. Unfortunately -

What the court did was to affirm the holding of the Second Circuit - which only struck down Section III. It may have used sloppy language (as well s some really wonderful language for future challenges), but it is limited to affirming the Second Circuit's opinion.

[Pab Sungenis]

9. But without severability

the entire statute has to stand or fall.

[Ms. Toad]

11. Not necessarily.

That clause (or its absence) can be treated as just a formality, and I don't know if the Second Circuit analyzed that or not. I do know that it only found the third section unconstitutional, and the holding of the Supreme Court was that the Second Circuit decision was affirmed.

[last1standing]

8. Maybe I'm not getting this right, but...

It seems that the lack of a severability clause doesn't force the SCOTUS (or lower federal courts) to invalidate the entire law; it only allows them to do so if they choose. As you said, the ACA didn't have a severability clause but the Court still held that one part of the act could be severed from the rest leaving the remainder as good law. I'm afraid today's ruling was of the same ilk.

Sadly, while I think today's Windsor ruling was a giant step in the right direction, I think that if Kennedy had been willing to strike down the entire act, we would have seen a different holding today. Unfortunately, Kennedy still wants to sit on the fence a bit and was unwilling to destroy the entire law. Like Loving v. Virginia, it will probably take a SCOTUS ruling banning discrimination for the whole thing to go down.

I do believe that the entirety of DOMA will be struck down, but full faith and credit will have to wait for another day. What SCOTUS did today was decide that sexual orientation issues will be held to strict scrutiny review. This will be the eventual downfall for discriminatory laws like Sec. II of DOMA once it is argued that these laws have no proper state interest while intruding into the equal rights of individuals.

Again, I could be wrong - and I hope I am - but it looks like Sec. II is still the law of the land.

[Ms. Toad]

12. Intermediate scrutiny. n/t

[last1standing]

14. Fair enough.

For many purposes intermediate scrutiny looks a lot like strict scrutiny just as rational basis is often indecipherable from arbitrary or capricious, but you are correct, marriage equality will now be held to an intermediate scrutiny standard. At the Supreme Court level, that can make a difference.

ETA: It should also be noted that the Supreme Court has also blurred the line between intermediate and strict scrutiny in discussing issues of sex. See Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). So maybe today's ruling will be functionally the same. Let's hope.

[Ms. Toad]

15. The really important thing is that they did NOT use rational basis.

But yes, adjacent levels of scrutiny are often hard - at least on a delving into the cases basis - to distingush.

[MNBrewer]

16. I bet they'll let that slide