elsewhere/grim amusements: massachusetts and maine

[iainpj]

Grim Amusements / massachusetts and maine:

...It's going to be interesting to see if [Massachusetts challenging the Defense of Marriage Act in federal court] succeeds. It's taking a different tack than the individual lawsuits, which are based in the denial of due process. Massachusetts is instead arguing that the federal government overreached. Honestly, I have to say, it really does seem like the states would lack standing. DOMA is, after all, a law aimed at the federal and the individual; the states don't really enter into it at all. All of the benefits that Massachusetts is arguing about are federal grants, not state-level....

Meanwhile, in a state next door, [Gay marriage foes reach signature goal to put gay marriage repeal on ballot in Maine]...So, in all likelihood, gays in Maine will never be able to get married before the law is repealed. And make no mistake; unless Maine really is terribly special, the law is almost certain to be repealed through the "public veto". I suppose, if there's nothing of particular interest otherwise on the November ballot, maybe the law will survive if the proponents of gay marriage can organize their supporters and get out the vote. One can but hope that Maine is more fertile ground for this than, say, California.

But frankly, I do believe that when this sort of civil right is that heavily conflated with religious views, the more restrictive view is much more likely to win....

Comments

[profrobert.livejournal.com]

I hadn't realized it was a Tenth Amendment challenge. You can see, though, if they're arguing a violation of states' rights, there's no way they could challenge Section 2. This is the type of thing, though, that stands traditional left-right analysis on its head. The Tenth Amendment is usually cited by conservatives seeking to blunt liberal initiatives by the federal government. The Supreme Court tends to invoke the Tenth Amendment to strike down federal laws that force the states to do things or to spend money. The application here is a stretch (it would much easier if DOMA said no state may grant marriage status to same sex couples). There's no standing problem since Massachusetts alleges an injury to its own sovereignty, but whether or not it ultimately succeeds is hard to tell.