Wednesday, June 6, 2012

A Court Decision on Gay Marriage That Conservatives Should Embrace – If They Really Believe in Conservative Principles

But Of Course They Don’t When That Belief Would be Inconvenient

The U. S. has a state/Federal system of government.  Areas of responsibility are divided between the national government and the state and local governments, with some overlap. For example, national defense and foreign policy is an area specifically allocated to the Federal government.  States cannot carry on their own foreign policy.

One of the areas that has been delegated to the states is the legal aspects of marriage.  States, not the Federal government set the rules and regulations for marriage.  Furthermore, Conservatives are adamant in their belief that the Federal government has only those powers granted to it specifically by the Constitution and argue that the 10th Amendment specifically delegates everything else to the states.  They use this argument to refute the instruction of the Federal government into state managed affairs.

The Federal government is involved in marriage to the extent that certain provisions of Federal law recognize marriage.  For example, Federal income taxation treats married couples is different from couples who are living together but not married.  And a married person may pass on his or her estate tax free to the spouse, which is not the case for a couple who live together and in all aspects act as if they are married, but have not entered into the legal arrangement of marriage.

In recognizing marriage for its legal purposes the Federal government must rely on the state definition and determination of marriage, because no one can get married on a Federal legal basis.  For the Federal government to intervene into the definition of marriage and deny marriage exists where it is legal and practiced in a state must surely be an anathema to Conservatives.  It would be yet another intrusion of Federal authority into state matters, which Conservatives hate.

So the Federal Defense of Marriage Act, or DOMA must surely be something Conservatives hate.  If a state decrees that two people are married then the Federal government has no authority to declare that they are not.  This is essentially the argument that won the day in a Federal Appeals Court decision on DOMA.

The US Court of Appeals for the First Circuit said in its 29-page ruling that a section of the 1996 Defense of Marriage Act violates the federal equal protection clause by unjustifiably denying married gays and lesbians federal benefits.

“Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest,’’ the court wrote.

In short, the Appeals Court found that the Federal government had no basis for denying federal benefits to couples who were legally married under state law other than dislike of some of the couples who were legally married under state law.  That denial of benefits and recognition was simply based on animus towards gay and lesbian couples who were legally married.  The supporters of the DOMA just have no legal basis for their support of discrimination embodied in the law.

“What we’re dealing with is how the federal government treats people once they were already married by their states,’’ said Mary Bonauto, a lawyer for Gay & Lesbian Advocates & Defenders, or GLAD, the Boston-based advocacy group that had challenged the law on behalf of 17 plaintiffs.

“They were denied [benefits] simply because they married someone of the same sex,’’ said Bonauto, who also argued in the 2003 state court decision.

The decision does not appear to have been a difficult one, it was unanimous. The Appeals Court simply said that Massachusetts has chosen to recognize same sex marriages, and that the Federal government has not demonstrated any reason why it should not also do so other than the fact that it disapproves.  Of course, the reason the Federal government has not demonstrated why it should not recognize the legal and delegated authority of Massachusetts in this instance is because it has none.

 And one Conservative group promptly displayed its ignorance on the basic way the system operates

The Massachusetts Family Institute, which had signed on as a friend of the court to defend the marriage act, said the decision was “unconscionable and another overreach of a Massachusetts court on the definition of marriage.’’

failing to understand that the 1st Circuit Court of Appeals is a Federal Court, not a Massachusetts one. But then legal literacy never was a hallmark of Conservative groups who want to impose their own legality on the populace to enable their own agenda to be enacted.

And so rational Conservatives, real Conservatives, Conservatives who really believe in what they say and who adamantly defend state’s rights should be highly vocal in their support of this decision.  So why the silence and opposition on their part?  Because they are not real Conservatives, in fact real Conservatives may not really exist.  These so-called Conservatives want to invoke Federal power when it is aligned with their prejudices, which makes them neither Conservatives nor Liberals.  It just makes them hypocrites. 

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