http://www.nationalreview.com/bench-memos/291830/another-wild-anti-doma-ruling-ed-whelan
Yesterday, Judge Jeffrey White of the Northern District of California ruled (in Golinski v. U.S. Office of Personnel Management) that the Defense of Marriage Act could not constitutionally be applied to bar a lesbian employee of the Ninth Circuit from receiving federal health-insurance coverage for her same-sex spouse.
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In short, gays and lesbians lack "meaningful political power" because they haven't succeeded in broadly redefining marriage, so White will subject DOMA to heightened scrutiny in order to redefine marriage for purposes of federal law. What a farce.
The Farce is with us. There is more at the link.
Political power is only one of the prongs for heightened scrutiny. We must know how much political power is required under law before this test fails, to more accurately say this is a farce. Is it no political power? Is it just some political power? Is in moderate political power? How has the amount of political power applied in equal protection cases in the past?
ReplyDeleteSounds like a full throttled equal protection analysis is actually required to determine if heightened scrutiny can be applied to same-sex couples who want to civl marry under due process and equal protection grounds. Go through all the prongs, for this analysis, rather than calling this ruling a farce.
Please pick a moniker when commenting. Thanks.
ReplyDeleteWhy use the phrase, civil marry, when the civil part is redundant?
Political power? The point is that the "prongs" are not in the Constitution. Don't confuse judge-made amendments with the text and framework of the Constitution.
Due process is for protecting existing rights of the individual and not for creating group rights. Equal protection does not empower the judiciary to rewrite unambiguous statutes.
There is enough in the judge's written opinion to call it another indication that the Farce is with us.
If you feel a full throttle and pronged analysis is justified, then justify it first.
Again, please use a distinguishing moniker if you comment further. Be courteous to your hosts. Thanks.
I use civil marry for clarity as opposed to temple marry for example. Many believe churches will be forced to marry, which can be a separate ceremony. So I personally use civil, even though it is redundant.
ReplyDeleteIf your point is that the prongs are not in the constitution, then you don't understand that they are used to determine heightened scrutiny in order to facilitate a equal protection qualification. To paraphrase the prongs/tests can be described as:
1. Identifiable as a discrete and insular minority
2. History of purposeful discrimination
3. Political Powerlessness
4. Immutable Trait
My justification for a full throttled heightened scrutiny analysis comes from the DOMA litigation and determination of "heightened scrutiny." To date, I've not seen an full throttled analysis coming from this litigation, where claims beyond a rational basis are made. Therefore, I'm suggesting its time for a full throttled analysis.
The moniker field is fixed and does not let me choose. Unknown is pre-selected and fixed. My apologies if you feel this is discourteous, which is not intended.
No need for that redundancy here. Repeated use of would only clarify that you would purposefully and pre-emptively misrepresent the stated views of myself and other Opine bloggers. Thank you in advance for dropping the unneeded redundancy.
ReplyDeleteAs for the prongs, I recognize the current state of incoherence in constitutional jurisprudence. Hence my concurrence with Whelan. This particular judicial opinion - the profferred reasoning plus the proposed remedy, taken seperately and taken as a whole - is another farce.
Due process is for protection of existing rights. Equal protection is not for creation of new rights much less for creation of group rights. The judge is not empowered to rewrite unambiguous statutory law much less amend the Constitution.
The judge in this case erred in framing his analysis in this manner, as previously noted. He failed to justify his starting line and so what followed was an arbitrary exercise of governmental power. He legislated his predrawn conclusion.
Rule by judge is not rule by law. He was endgaming. I am for judicial review; I am against abuse of it.
When I asked for justification I did not mean to ask for an excuse but for your reasoning.
Your remarks remind me of a previous Unknown's remarks on this very theme. I am not very interested in proceeding as if the error of this judge is a sound basis for further speculative analysis. You would just compound the error.
Others might be interested in discussing that with you because it my produce some interesting turns. I'll leave that to you and others.
To prevent the potential for futher Unknowns commenting and being confused with yourself,and out of courtesy, please sign your comments with your moniker if the name field field is uneditable for you.
Thanks,
Chairm