Linda Greenhouse writes about the DOMA case, Trojan Horse, "But as these two lawyers clearly recognized, striking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture."
"And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races. Virginia maintained that its law did not amount to racial discrimination because the prohibition ran equally in both directions – just as blacks couldn’t marry whites, whites couldn’t marry blacks either. Consequently, the state argued, the case came down to a simple matter of federalism. But Chief Justice Earl Warren’s unanimous opinion didn’t buy it. “Marriage is one of the basic civil rights of man,” the court said. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The right, in other words, belonged to the individuals involved, not to the state."
I like this. When people use the argument, that something is the right of the state and not the federal government, a good counter-argument is that perhaps the right is reserved to the people and not the state. Greenhouse also points out the real issue in this case:
"Where were they when Edith Windsor got a federal estate tax bill of more than $300,000, a tax she wouldn’t have had to pay had DOMA not barred the Internal Revenue Service from recognizing a spousal exemption based on her New York-recognized marriage to her partner of more than 40 years?"
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