03.30.11

Same Sex Marriage Ban Is Not Good Law

Posted in Policy at 5:56 pm by Lalita Haran

Same sex marriage cases are placed on hold, declared U.S. Citizenship and Immigration Services but soon lifted the hold and began processing cases according the current laws.

The long awaited recognition for such marriages came in the form of abeyance. The Attorney General, Eric Holder, announced in February 2011 that his office would not argue before the 2nd Circuit, the federal court of appeals, that Section 3 of “Defense Of Marriage Act” (DOMA) is good law. The announcement comes following President Obama’s declaration that DOMA is unconstitutional in his opinion. The President was a constitutional law professor in Chicago Law School in his previous carreer.

The 2nd Circuit, faces the issue: whether laws regulating individual rights based on sexual orientation are suspect and therefore should be subject to a higher level of scrutiny. The President answers in the affirmative!

In his statement, the Attorney General stated that so far his office supported DOMA in other Circuit courts because the precedent in those courts suggested that the legislation would be subject to a simple scrutiny i.e. “whether a rational basis existed to enact the law.” This is the easiest standard to satify and most legislation would withstand this scrutiny as long as there is any rational basis to justify the legislation.

Identifying separation of powers between the different branches of the government the attorney general indicated that the law would be enforced because of the commitment of the executive branch of the government to uphold the laws of U.S. until DOMA was declared unconstitutional by the judiciary or repealed by the Congress. Awesome!

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