The question presented is whether the DOMA violates the United States Constitution where it purports to safeguard the respective laws of the several states by prohibiting application of the equal protection clause and due process clause of the Fourteenth Amendment.

Frankly, I thought this matter was resolved by the Civil War and underscored by the decision in Loving v. Virginia, 388 U.S. 1 (1967). While I am sure the Court's five so-called conservatives will make every effort to rewrite the Constitution notwithstanding their bellows of strict orginalism, the opinion in Loving makes obvious that this kind of thing is unconstitutional.

As detailed in Loving:

Virginia [was] one of 16 States which prohibit[ed] and punish[ed] marriages on the basis of racial classifications. Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. The . . . statutory scheme
date[d] from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, [were] the absolute prohibition of a "white person" marrying other than another "white person", a prohibition against issuing marriage licenses until the issuing official [was] satisfied that the applicants' statements as to their race [were] correct, certificates of "racial composition" to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage.

The Supreme Court found Virginia's prohibition against interracial marriages unconstitutional, observing:

While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited, notwithstanding the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska (1923) and Skinner v. Oklahoma (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree.

The clear and central purpose of the Fourteenth Amendment was to eliminate all official sources of invidious racial discrimination in the States. There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny", and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose...which makes the color of a person's skin the test of whether his conduct is a criminal offense."

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

I suspect that Thomas and Scalia, at least, will argue that race and gender are different, at least as considered under the Fourteenth Amendment, and that DOMA is constitutional because it does not discriminate invidiously (although it does discriminate).

I have attached the Loving opinion in case anyone is interested. The

http://www.ameasite.org/loving.asp

That was funny. Good Job!!

Pedophilia and incest comparisons, again, maybe.

Did any front running Dem indicate a repeal of DOMA in their proposed administrations?