DOMA ruling a small victory for state sovereignty

BOSTON (May 31, 2012) – On Thursday, the First U.S. Circuit Court of Appeals ruled section three of the Defense of Marriage Act (DOMA) unconstitutional, citing a state’s power to determine its own definition of marriage.

Appeals Court Judge Michael Boudin, a President George H.W. Bush appointee, wrote the unanimous opinion for the three-judge panel.

“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

DOMA passed in 1996 during the Clinton administration. Section two of the law stipulates states do not have to recognize same-sex marriages valid in other states, and section three creates a federal definition of marriage.

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The law does not invalidate same-sex marriages in states that allow them, but it does deny same-sex couples federal benefits, such as the ability to file as “married” on tax returns and access to Social Security survivor benefits.

The appellate court ruling dealt with section three.

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Squat, Cough and Spread Your Cheeks! Is This Really Constitutional?

Are body cavity searches constitutional? In the recent Supreme Court, decision Florence v. County of Burlington, the Court ruled 5 to 4 that law enforcement may strip search those arrested for even minor infractions before incarceration, “even if the officials have no reason to suspect the presence of contraband” (Adam Liptak, Supreme Court Ruling Allows Strip Searches for Any Arrest, New York Times, April 2, 2012).

This is not particularly new, as the Supreme Court had previously ruled in 1979 that “visual body cavity searches of all detainees after they had contact with outsiders,” was permissible. In practice, however, lower courts had ruled “the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility” (Glenn Greenwald, The Obama DOJ and Strip Searches, New York Times, Apr. 3, 2012).

But the Obama Department of Justice and five conservative justices (strange bedfellows) both wanted a blanket, more universal policy. When you have a rule that treats everyone the same you don’t have folks that are singled out. You don’t have any security gaps,” argued Justice Department lawyer Nicole A. Saharsky. So now everyone arrested is subject to possible strip searches on the discretion of law enforcement alone.

The Fourth Amendment to the U.S. Constitution reads in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Clearly the states, who initiated the Bill of Rights as a condition of their acceptance of the Constitution, had had negative experiences with government overreach with respect to “unreasonable searches” and wanted no such practices from the new government they were creating.

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Bipartisan Change You Can Bet On

A recent AP article featured in the Las Vegas Review Journal has said Governor Chris Christie plans to defy the federal government regarding sports betting.  According to the article, Christie said his administration will make no attempts to overturn a 1992 law that limits sports betting to four states.  But he doesn’t sound like he intends to follow it either.

“We intend to go forward,” the Republican governor said. “If someone wants to stop us, then let them try to stop us. We want to work with the casinos and horse racing industry to get it implemented.  Am I expecting there may be legal action taken against us to try to prevent it? Yes,” the governor said. “But I have every confidence we’re going to be successful.”

Way to go, Governor Christie!  I’m going to start calling you “Tenth Amendment Guy” if you keep it up.

Unlike his recent veto of the Legislature’s bill that would have implemented the health care exchanges under ObamaCare in New Jersey, the governor appears to have support from some big names across the aisle.  Senator Raymond Lesniak, who attempted a lawsuit to overturn the federal ban, had this to say, “To those with a vested interest in the status quo – the professional sports organizations who take a hypocritical stance that wagering will ‘ruin the purity of the game,’ and the Nevada-based gaming conglomerates that have enjoyed that state’s stranglehold on sports wagering for the last 20 years – I respectfully say, ‘Bring it on.’  The sooner you make an issue of New Jersey’s noncompliance with an unconstitutional federal ban, the sooner we can defeat that ban in the courts, and put New Jersey on the same competitive footing as the rest of the nation when it comes to sports wagering.”

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Rescuing the Constitution

Of the many grievances endured by our Constitution, our current President’s indeterminate nationality is a minor one. This does not mean I disapprove of the biographical colonoscopy presently being conducted by breitbart.comJerome Corsi and others; I say have at it. But even if Geraldo Rivera were to track down a Standard 8 film of Barack Obama’s water birth in the Mogonga River, liberals aren’t going to start plastering Romney ’12 stickers on their Chevy Volts.

Most of the other infractions, a roll call of which would include Obamacare, the NDAA, the Departments of Education, Energy, Housing and Urban Development, Agriculture, Labor and Transportation, and the Federal Reserve, are far more deleterious to our wallets and our liberty. The absence of the foregoing would not result in urban areas not being developed or kindergartens being shuttered. I imagine dairy farmers will figure out how to market milk, and banks, without Freddie Mae and Fannie Mac, will underwrite risk-worthy mortgages.

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