Think Freely Media presents Common Sense with Paul Jacob

In disagreements between individuals and the IRS, I tend to side with individuals against the IRS. So Wednesday’s Supreme Court ruling against the Defense of Marriage Act seems about right, on the face of it.

Yes, the judicial review and nixing of DOMA regarded a tax case.

The state of New York recognized the marriage of two women, Edith Windsor and Thea Spyer. Ms. Spyer died in 2009. Ms. Windsor inherited, paying $363, 053 in estate taxes. She sued against DOMA because she wanted to claim the federal estate tax exemption for surviving spouses.

The Supreme Court majority sided with Windsor. Chief Justice Roberts dissented, arguing that the court lacked the authority in this case to overturn this law; and Justice Scalia dissented separately, joined by Justice Thomas; Alito wrote another separate dissent.

Fascinating reading, all of it, but I was disappointed that Justices Scalia and Thomas are so deferential to Congress regarding DOMA, without any consideration of the Tenth Amendment, which recognizes that states have powers not delegated to the federal government — and surely regulating marriage was not one of the enumerated powers delegated to Congress — or the Ninth Amendment, which recognizes “rights retained by the people,” and that has a lot of bearing on the practice of marriage.

It seems to me that in matters of marriage, at the very least, the federal government should be following the people and the states, not the other way around.

This is Common Sense. I’m Paul Jacob.

By: Redactor


  1. Steven Sass says:

    Whether one personally believes in marriage being only between a man and a woman or not, CLEARLY DOMA was unconstitutional — suppose it had said marriage can ONLY be between people of the same race or people of the same religion! STATES set marriage rules and I believe the Court would HONOR a state that said only a man and woman, even if race/religious bias was not allowed. Likewise, feds can not establish that only 2 people make up a marriage, although I don’t know how the IRS would handle a group marriage, OR marriage of a human and animal if a state authorized [did not prohibit] it

  2. Iheartdagney says:

    Surely power is supposed to belong to the people until one unelected gay judge in California decides the people are wrong. So, because, the governmental regime in California decided not to defend the people’s vote against this unelected gay judge, NO ONE has standing to take the gay judge’s opinion to the Supreme Court. That sound about right?

  3. James says:

    Oh sure, let’s swap the well-being of our country for a tax refund. (Perhaps that could be a new deduction on the 1040A?) Libertarianism is a rather myopic political philosophy, isn’t it?

    Washington, Adams, de Tocqueville – even Jefferson – all had enough wisdom to realize the necessity of virtue, religion, and morality in preserving a nation.

    Every responsible parent knows that freedom must be either used properly or forfeited. Americans have grown so childish as to think we can “get by with things”, that maybe we can outsmart the Laws of Nature and of Nature’s God and escape the consequence of our irresponsible handling of freedom.

    Hmm, how’s that working out for ya?

  4. Edward Agazarm says:

    Steven- I agree. My take-away from the DOMA case is that the Congress had no business legislating tax penalties for marriage contracts made lawfully in NY STATE.

    Thus the result – now when my gay friends marry one another lawfully, in Olympia WA, the US congress must respect the marriage laws of Washington State.

    Overall, I think this case makes our Country stronger, and reinforces States rights to define marriage.

  5. JFB says:

    Paul, it is all economics. If there was not an tax and economic DISCRIMINATION in favor of married status in the tax code there never would have been a case.
    The same for Roe v Wade, if there had not be a law prohibiting abortions there never would have been a constitutional right to have one.
    Legislating morality and favoring any group or status is always fraught with danger.
    Without such interference and market manipulation the truth is that virtue would be its own reward (and the easy way out), and evil, especially over the long-run, prohibitively expensive and thus most effectively discouraged.
    It is our misguided (and generally extra-constitutional) laws which are the genesis of these aberrations.
    Leave people with the benefit of their virtue, and the detriment of their failings and the society will be most efficient, and in the whole benefit and prosper.
    That is why I am libertarian, or perhaps more accurately a pragmatic moralist.
    The majority of the SC was right, but only if you concede and implicitly ratify the discriminatory public policy and tax code which are abominations and, as this shows again, are actually counter-productive.
    This decision is on a symptom, and does not even approach the cause. It solves nothing.

  6. Kenneth H. Fleischer says:

    I go further. There are basically two ways of viewing marriage: It is either a type of civil contract, or it is a holy rite. If one regards it in the former way, then DOMA was a violation of the right of contract. If one regards marriage in the latter way, then DOMA was interference in the right to religious liberty, and this also applies to state laws just as much as it does to Federal laws. There is no proper involvement of government AT ANY LEVEL in marriage.

  7. Pat says:

    Supreme Court justices aren’t dopes. They know who butters their bread. Virtually all of the power wielded by the Supreme Court is courtesy of the Congress that writes convoluted laws and attempts to regulate every aspect of our lives.
    As long as one state is bound to recognize contracts made in another state, how can marriage ever be solely a ‘state issue’? Congress and many individual states confer upon married couples advantages not given to those who can’t produce a marriage license – whether or not they have children. Pension rights and insurance benefits are just a few.

  8. Alan Wood says:

    So Paul Jacob is just as immoral as the tyrants on the court. SAD!

  9. Steven Sass: Give me a break!

    “Marriage between human and (other) animal?” Do you seriously believe a non-human animal is capable of giving informed consent to a (marriage) contract?

  10. […] on the two cases covered at the end of the week, here on, namely “Too Respectful of Congress?” (Thursday) and “No Right to Defend Your Rights” (Friday). You’ll find […]

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