Sunday, October 31, 2010

Federalism, Marriage, Perry and DOMA: Sanders on States Amicus Brief

Steve Sanders has posted an interesting commentary on the amicus brief filed by thirteen states in Perry v. Schwarzenegger, the Proposition 8 case now in the Ninth Circuit, which we last discussed here.

Sanders points to the inconsistency in the arguments in this amicus brief with the appeal in Commonwealth of Massachusetts v. HHS, the DOMA case in which the district judge agreed that DOMA conflicts with the Massachusetts' Tenth Amendment reserved powers.   He writes that these 13 states are "unlikely to link arms with Massachusetts," because given "the choice between a consistent position in favor of states' rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter."  

The Tenth Amendment argument in the Massachuetts DOMA case also poses consistency issues for those relying on the Tenth Amendment in the context of challenges to Arizona's immigration law, SB 1070.

RR

http://lawprofessors.typepad.com/conlaw/2010/10/federalism-marriage-perry-and-doma.html

Family, Federalism, Sexual Orientation, Tenth Amendment | Permalink

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Comments

No time to read...just wanted to say to someone in Legal Profession...
Procreation ability precedes Children and there fore savings needed for the well being of Children and everyone's future.
Marriage of gay people does not upset me in Government Ceremonies.
Tax savings for the (generalized) Child bearing are for the same purpose.
We can not have every one having the savings that at earliest history were not there. How ever does the future have a future if everyone has same savings? Common sence must prevail.
All though it is not known if all Gay/Lesbian Persons were changed to that orientation, hence the word. The fear that some have is that someone that may be sexually driven as we all are...may have more wants than are available to them. I have been asked to have sexual orientation changes. Someone verbally, has tryed to change orientation without my consent. Control was most likely the original Person's intention. Tolerance/Acceptance of Individual's, but be strong, America.

Posted by: Diana | Nov 3, 2010 10:31:33 AM

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