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2/25/11 1:03 PM
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bjjdna
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A little help from the con law experts please..

Marriage is a protected fundamental right under the 14th and gays are also a suspect class with a history of willfull discrimination.

Doesn't fundamental right and suspect class trump the "unintential not discriminatory on its face but discriminatory in effect" arguement for applying rational basis and require strict scruity?

Clinton era DOMA law violates equal protection and substantive due process and will soon be ruled unconstituional imo. So after DOMA is declared unconstitutional, wouldn't gay marriage rational basis precedent be replaced by strict scrutiny under both substantive due process and equal protection? Isn't that the basis for Obama refusing to enforce DOMA...because he believes enforcing DOMA is unconstitutional as a higher level of scrutiny should apply?

And how does all this impact state constitutions many of which are antigay marriage.

http://legaltimes.typepad.com/blt/2011/02/doj-wont-defend-defense-of-marriage-act.html
2/25/11 3:37 PM
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"Marriage is a protected fundamental right under the 14th"

If marriage is defined as between one man and one woman, same sex unions are not included. Loving and Zablocki were not same sex situations. The US Supreme Court has never recognized the fundamental right to marry a person of the same sex.
2/25/11 3:40 PM
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419
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"gays are also a suspect class with a history of willfull discrimination"

While a strong argument can be made that classes based on sexual orientation should be subject to heightened scrutiny, the US Supreme Court has never held that homosexuals are a discrete and insular minority. Romer and Lawrence were both mere rationality cases.
2/25/11 3:42 PM
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419
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"Doesn't fundamental right and suspect class trump the 'unintential not discriminatory on its face but discriminatory in effect' arguement for applying rational basis and require strict scruity?"

No, as mentioned above, the US Supreme Court has not recognized a fundamental right to same sex marriage nor has id deemed classes based on sexual orientation suspect. Additionally, the equal protection clause only prevents intentional discrimination, not disparate impact.
2/25/11 3:45 PM
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"Clinton era DOMA law violates equal protection and substantive due process and will soon be ruled unconstituional imo"

Justice Kennedy's opinion is more important.
2/25/11 3:47 PM
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"So after DOMA is declared unconstitutional, wouldn't gay marriage rational basis precedent be replaced by strict scrutiny under both substantive due process and equal protection?"

Not necessarily, the Court struck down laws in Romer and Lawrence using mere rationality.
2/25/11 3:47 PM
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"Isn't that the basis for Obama refusing to enforce DOMA...because he believes enforcing DOMA is unconstitutional as a higher level of scrutiny should apply?"

It is the province and duty of the Judicial department to say what the law is.
2/25/11 3:50 PM
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"And how does all this impact state constitutions many of which are antigay marriage."

If the Court strikes down prohibitions of same sex marriage on Constitutional grounds, it will be the Supreme Law of the Land.

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