Comments on: Boehner And Clement's Brief to the Court On DOMA Is An Anti-Gay Masterpiece

By: TeeGeeCee

TeeGeeCee — Wed, 10 Aug 2011 14:22:50 +0000

Remich:
You seem exceptionally well versed on the topic – I’m assuming you are in the legal field in some manner. What are your thoughts about how/when the ruling might go, especially in regards to heightened/rational scrutiny?

By: TeeGeeCee

TeeGeeCee — Wed, 10 Aug 2011 14:14:08 +0000

It’s funny, I was thinking the exact same thing. She looks like (to quote my mom) “one hell of a broad”.

By: Prop 8 Trial Tracker » Congress Lashes out at Gay Families

Prop 8 Trial Tracker » Congress Lashes out at Gay Families — Mon, 08 Aug 2011 17:07:11 +0000

[...] In other news this week, John Boehner’s legal team submitted a brief in defense of DOMA that’s even more offensive than anyone could have predicted. But that may turn out to be its Achilles heel, since its anti-gay rhetoric can be easily dismantled with facts. [...]

By: NJ Kinda Sorta Supports Marriage Equality (Depending On The Wording) / Queerty

NJ Kinda Sorta Supports Marriage Equality (Depending On The Wording) / Queerty — Mon, 08 Aug 2011 13:01:52 +0000

[...] In other news this week, John Boehner’s legal team submitted a brief in defense of DOMA that’s even more offensive than anyone could have predicted. But that may turn out to be its achilles heel, since its anti-gay rhetoric can be easily dismantled with facts. [...]

By: Remich

Remich — Fri, 05 Aug 2011 20:16:41 +0000

It’s one of those bizarre things that *shouldn’t* matter in any normal way, but does because of the legal framework that we live in.

Sigh.

By: Caerolle

Caerolle — Fri, 05 Aug 2011 18:44:29 +0000

I so love that look of quiet strength on Thea Spyer’s face. She must have been some kind of awesome.

By: Bhan

Bhan — Fri, 05 Aug 2011 16:57:23 +0000

Hi Speaker Boehner! Ancient and Medieval historian here! Like, that is my proffession, it is actually what I do with my life. I would just like to say that discrimination against homosexuals has a long and rich history going back to the Roman period and involves such highlights as cutting off teenaged boys noses and sodomising people with heated iron brands. Considering the penal code and how it mandated execution or life imprisonment for homosexuals in many western countries until relatively recently your statement that discrimination against homosexuals is a recent phenomena is just plain stupid.

Discrimination in its current form is of course recent, but only because the legal status of homosexuals has changed significantly and rapidly over the last century necessitating this change. And honestly in many places its not that different.

Finally, even if it were true that it is a recent phenomenon what the hell is your point? If discrimination against rich white guys suddenly turned up, say forbidding you to marry, wouldn’t you want it overturned because it was just plain wrong.

Your arguments make no sense.

Sincerely,
Someone who does not have to live in a place where you have any legal authority, thank god.

By: OT

OT — Fri, 05 Aug 2011 15:28:44 +0000

This stuff about “choice” always makes me wonder how many closeted bisexuals are out there. See also: http://www.kinseyinstitute.org/research/ak-data.html#bisexuality

By: Heather

Heather — Fri, 05 Aug 2011 02:53:48 +0000

i accidentally clicked on that last picture, filling my screen with his face. it was not pleasant.

By: Lora

Lora — Thu, 04 Aug 2011 21:07:10 +0000

The whole “It’s a choice, no one is born gay” thing is always extra infuriating to me. Here’s the thing: SO WHAT IF IT IS A CHOICE? I’m not saying it is, but if it were, how would that honestly make it any different? That’s the thing about a supposed democracy – we’re allowed to make choices. It’s right there in the Constitution: Life, love and the pursuit of happiness. You should be with whoever makes you happy. People aren’t naturally born to be orange either, but that’s what John Boehner’s chosen for himself and I support his right to spray himself with fake tanner at least 4 times a week.

By: Laura

Laura — Thu, 04 Aug 2011 20:52:03 +0000

I’m justing picturing them all smugly sitting there with smug looks on their faces thinking smugly about how they’ve outwitted the gays with their stupid logic. Thanks, Rachel, for the breakdown and also for pointing out that everything’s NOT getting better for everybody. I hadn’t even thought of that.

By: Remich

Remich — Thu, 04 Aug 2011 20:21:11 +0000

Well, you’re at least slightly wrong on the second point. Political powerlessness is a factor in the classification of “suspect classes.” If a law discriminates on the basis of a suspect class, it’s subject to strict scrutiny for an equal protection challenge, rather than intermediate or rational basis scrutiny.

If a law is evaluated under strict scrutiny it has to serve a compelling government interest, be narrowly tailored, and be the least restrictive means of achieving that interest.

The rational basis standard on the other hand, requires only that the law be rationally related to a legitimate government interest. Intermediate scrutiny is the fuzzy middle ground between the two standards.

Bottom line is, the particular type of judicial review that the dist. ct. in SDNY applies, and that the Second Circuit and SCOTUS either affirm/reverse makes all the difference on how easy it is to get DOMA declared unconstitutional.

For example, say DOMA was subject to strict scrutiny. It probably fails, because at best, it satisfies only one prong of the test. You could make the argument that encouraging procreation / protecting the definition of marriage is a compelling government interest. It’s a weak ass argument, but you could make it. But the law is certainly not narrowly tailored, or the least restrictive means to encourage responsible procreation or marriage. It just isn’t. So, it fails.

Under rational basis review, it’s more difficult. Because those interests only have to be legitimate — not compelling. It’s a much lower bar. Further, if DOMA is subject to rational basis review, it doesn’t matter at all whether Congress passed it because of bigotry or stupidity. If you could somehow find a legitimate government interest that it is rationally related to (even if that wasn’t the interest of Congress at the time of the law’s creation) it’s constitutional.

So… yeah. Plus, if we can get the 2nd to affirm strict or intermediate scrutiny, and the SCOTUS to do the same, it changes the entire playing field for gay rights litigation — at the state and federal level. It’s kind of huge.