“Making Exact Sense of the Supreme Court Ruling of DOMA and Prop. 8” By Frank D. Pond

Prop 8:  The appellants had no standing to appeal since they didn’t represent the people of the State of CA since Gov Brown and AG Harris determined not to appeal.  This was a way out for those Justices that could not cobble together a full denial of marital equality and for those that support marriage equality but couldn’t quite get 5 Justices to change society in such an “overnight manner.”  But I suspect that is coming within 2-3 years.  So, marriage is shortly going to be 100% legal in CA (making us LUCKY 13 state!).  The appellate decision which talked about the unfairness of one set of married gays (between initial CA Supreme Court decision and Prop 8) versus those now wanting to be married as a rationale is now no longer.  Instead, the original trial court ruling of Judge Vaughn Walker is the law and that says that there is no rational reason to ever deny gay persons the right to marry and no governmental interest in doing so.  It’s much broader and a big deal.  And, a precursor of what will come when the next couple is denied the right to marry (say in Oregon since ideally we want the next case to come out of the 9th Circuit–CA, OR, WA) and takes the case up.

DOMA:  Even a bigger deal but not as big as a lot of LGBT people think.  Bottom line:  Court ruled that under 5th Amendment the FEDERAL Government cannot discriminate against those people legally married under a STATES law (or international countries law).  BUT it still allows STATES to discriminate and, because they didn’t rule under 14th Amendment, STATES need not treat a couple married in NY as married if they move to Virginia for example. So, say we got married in CA and filed taxes.  We would be able to file as married Federally and on State Tax.  BUT, say we married in CA and moved to Texas, we could file as married for Federal taxes but could not file as married under Texas State tax AND Texas would not have to recognize our marriage.  So, if you marry in CA and remain in CA or move to NY, RI, VT, MA, ME, CT, NH, DC, MD, IA, WA, MN, DE, you will be 100% married.  But, if you move anywhere else you will be only FEDERALLY married but not married in the new state.  Or if you unfortunately live in one of the other 37 states, you can’t marry at all Federally or on State level.  Its a mess but a HUGE step forward and is so messy that the fix is coming within a few years when someone else sues and the court extends the 5th Amendment theory to the 14th Amendment and/or extends the logic to the Full Faith and Credit section of the Constitution requiring each state to honor the laws of each other state.  Stay tuned. Its coming and sooner than we might think.  Even before Scalia dies…

3 Responses to ““Making Exact Sense of the Supreme Court Ruling of DOMA and Prop. 8” By Frank D. Pond”

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  1. Alfreda Dale says:

    Usually, the governor and state’s lawyers defend state laws in federal court, but both Gov. Jerry Brown and Atty. Gen. Kamala Harris refused to defend Proposition 8.

  2. Duane Cole says:

    Background:In May 2008, California became the second state in the U.S. (after Massachusetts) to allow same-sex marriage. Anti-gay activists put a measure on the California ballot to change the constitution to make marriage only between a man and a woman. Prop 8 passed 52-48%. Gay and lesbian couples are no longer be allowed to marry in California.

  3. skip says:

    Thank you Frank. So clean and concise.