Tuesday, July 9, 2013

U.S. v. Windsor in a nutshell

Below is a curt summary of my thoughts in reading the major decision striking down part of DOMA

1. If you are s/s married in a state that recognizes you as s/s married, the federal government must treat you as married.

2. If you are s/s married, but living in a state that does not recognize s/s marriage, you must sue again to even find out if the federal governmentt will treat you as married.

3. DOMA's prohibition on forcing states to recognize out of state s/s marriage is intact, and left for another day (in my opinion this has always been unconstitutional).

4. The majority opinion hinges on the belief that DOMA was enacted for nefarious reasons. Ed. Note: this is not a valid standard for declaring something unconstitutional. This could have been easily solved a number of ways.

5. The majority opinion is whiny.

6. Scalia's dissent is full of histrionics claiming the majority referred to opponents of s/s marriage as "hateful" and motivated by "malice." These words DO NOT exist in the majority opinion.

7. I predict this will go down as one of the most poorly reasoned and worded opinions in Supreme Court history.

1 comment:

  1. If anything, though, the majority opinion seems strengthen the position of the full faith and credit part of DOMA (#3 above), since it basically came down to "the feds can't override a state's decision on that state's own recognition of a marriage within that state." That assumes, of course, that the followup decisions remain consistent with Windsor.