Showdown at the Supreme Court Day 2: DOMA


It was back to court for same-gender marriage this morning. While yesterday’s Prop 8 arguments focused on the rights of those who want to be married, the DOMA challenge is more concerned with those who have already tied the knot.

At the heart of United States vs. Windsor is a powerful love story and the fight for equal protections and fair treatment under federal law. A victorious ruling could have a major impact on all 50 states, with a broader ruling leaving states with anti-gay marriage laws, like Idaho, in a legal quagmire.

“Edith Windsor is a New York woman in her eighties who married Thea Speyer, her same-sex partner of 40 years, in Canada six years ago. In 2009, Speyer passed away, leaving her entire estate to Windsor who was slapped with a $363,000 tax bill. If it hadn’t been for DOMA, the 1996 law that defined marriage at the federal level as the union between a man and a woman, she wouldn’t have had to pay any taxes. So she reached out to some gay and lesbian advocacy groups, found a lawyer willing to start the fight, won the support of the American Civil Liberties Union (ACLU), and filed suit in the U.S. District Court for the Southern District of New York in 2011,” the Atlantic reports.

Signed into law in 1996 by then President Bill Clinton, DOMA singles out lawfully married same-sex couples for unequal treatment under federal law. According to the law allows states not only to refuse to recognize valid civil marriages of same gender couples, Section 3 removes the couples out of all federal statutes, regulations, and rulings applicable to all other married people—thereby denying them over 1,100 federal benefits and protections.

The issue has divided the branches of government in recent years. As ABC News reports,”The Obama administration has argued that DOMA should be overturned, while House Republicans have stepped in to defend it, tasking the Bipartisan Legal Advisory Group (BLAG) with arguing for DOMA in federal court.”

It is the third section of the act, the section that denies benefits to same gender couples, that attorneys arguing before the Supreme Court are focused on. According to UPI,”Section 3, which is targeted, says, “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.”

As the Washington Post reports, the Justices are possibly dealing with three issues when it comes to the DOMA challenge,”The first is the equal protection issue, which is much the same in content as in the Proposition 8 case. The second is whether the fact that the executive branch agrees with Windsor means that there isn’t a real controversy in this case, meaning the court doesn’t have jurisdiction. The third is whether BLAG would be harmed by DOMA being overturned, and thus whether it has standing to defend the law (a friend-of-the-court brief by Harvard professor Vicki Jackson argues that even Congress doesn’t have standing, and even if it did, BLAG wouldn’t).”

So what could the possible outcomes be? As we saw from the arguments yesterday, there are some Justices who appear to be reluctant to tackle the gay marriage issue at all, but since they have it’s highly unlikely that they will choose to forgo making any sort of rulings.

1. The Court could simply strike DOMA off the books. As Erin Fuchs, a reporter for Business Insider summarizes,”That would mean that the federal government would recognize same-sex marriage in  the nine states where it’s already legal. In practical terms, gays could get the  same federal tax breaks straight couples do, like not having to pay an estate  tax.

2.The Court could uphold DOMA, Which would mean,”the status quo of gay couples being denied federal benefits would continue.  Congress could ultimately try to do away with the law but that might be a  long shot in an age of partisan gridlock.”

3. The Court may decide to deal with only the third section of the law and apply their ruling to those states nine states that already offer same-gender marriage. Such a ruling would still create a legal challenge for couples living in states like Idaho, but the Justices would be able to stall having to deal with the larger “elephant in the room” for a few more years.

According to Reuters,”The decision by Obama to abandon the legal defense of the 1996 Defense of Marriage Act (DOMA) called into question his willingness to defend other laws passed by Congress and challenged in court, several conservative justices said.”

During this morning’s arguments,”Chief Justice John Roberts pressed government lawyer Sri Srinivasan on how the government will now decide which laws to defend. “What is your test?” Roberts asked.”

“Obama and his attorney general, Eric Holder, said in February 2011 they would cease defending the law because they believed it to be invalid under the U.S. Constitution,” reports the news agency.

But beyond that, there were some positive signs coming from the Justices. According to The Hill,”Justice Anthony Kennedy, the court’s swing vote, seemed to agree with the  argument that DOMA interferes with states’ traditional right to define marriage.”

Watch: Olson, Boies and the Prop. 8 Plaintiffs hold post-argument Press Conference


Following this morning’s historic oral arguments, attorney’s for plaintiffs Sandy Stier, Kris Perry, Jeff Zarrillo and Paul Katami held at a press conference on the steps of the Supreme Court:

Showdown at the Supreme Court Day 1: The Prop 8 Arguments


History was made this morning as the U.S. Supreme Court took up the first of two cases that will impact the lives of millions of LGBT Americans. This is not, however, the first time the court has dealt with the issue.  Legal reporter Linda Greenhouse wrote about the incident in a recent column for the New York Times. In 1971, the Justices were asked to take up a case now known as Baker v. Nelson.

“Jack Baker was a student at the University of Minnesota, where he was a well-known gay-rights activist, when he and his partner, James McConnell, showed up at the county clerk’s office to apply for a marriage license. The year was 1970,” Greenhouse writes. But the court wasn’t ready to act. “On Oct. 10, 1972, it issued a one-sentence decision in Baker v. Nelson: “The appeal is dismissed for want of a substantial federal question.” The ruling was unanimous.”

Fast forward forty one years. Over half of the country now supports same-gender marriage, including the openly gay cousin of Chief Justice John Roberts who tells the National Center for Lesbian Rights she believes the Court will do the right thing,“I feel confident that John is wise enough to see that society is becoming more accepting of the humanity of same-sex couples and the simple truth that we deserve to be treated with dignity, respect and equality under the law,” Jean Podrasky writes in a recent column.

Not everyone, including Justice Antonin Scalia, holds the same opinion, of course.  As the New York Times points out,”He (Scalia) has made it abundantly plain that he has no use for same-sex unions; he thinks they are immoral. In his Lawrence v. Texas dissent, for instance, he said Americans have every right to enforce “the moral opprobrium that has traditionally attached to homosexual conduct” in order to protect “themselves and their families from a lifestyle that they believe to be immoral and destructive.”

None the less, the court has now heard the arguments for and against Proposition 8, a ballot measure approved by California voters in 2008 that stripped away existing marriage rights in the state for same-sex couples.

According to the Washington Blade’s Chris Johnson,”In the Prop 8 case, known as Hollingsworth v. Perry, Ted Olson, a former solicitor general under President George W. Bush, will argue against the constitutionality of the measure on behalf of the American Foundation for Equal Rights. Based on the legal brief he filed, Olson will likely argue against the merits of Prop 8 on the basis that it violates due process and equal protection of gay plaintiff couples under the U.S. Constitution.”

“Depending on the scope, a ruling in the Prop 8 case in favor of the plaintiffs could be a jackpot for same-sex couples. Justices could affirm the limited ruling from the U.S. Ninth Circuit Court of Appeals, which affected only California; determine that the nine states, including California, that offer domestic partnerships must offer same-sex marriage; or issue a sweeping ruling that brings marriage equality to all 50 states,” Johnson writes.

While a ruling on the matter isn’t expected before June, some believe it could come down to the decision of one man, Justice Anthony Kennedy. Chris Miles, editor of PolicyMic writes,”Kennedy probably holds the decisive vote in this one, and he is the author of the two leading gay rights cases. But he is notoriously hard to read.”

While there is some hope with Kennedy, John Culhane over at the New Civil Rights Movement also points out that the Justice “was recently heard to murmur that the SCOTUS Justices should prefer the democratic process over their own undemocratic intervention.” So his support is very much still up in the air.

Culhane tells readers to watch  for a couple of things during the arguments,”The first thing to listen for is how the Court is thinking about laws that discriminate on the basis of sexual orientation.”

“The second area of interest is in the possible remedy if the Court thinks that Prop 8 was an unconstitutionally discriminatory exercise of power.”

CBS news points out after the Supreme Court today hears the case, realistically, it has five options to choose from…

1. “The Supreme Court could use Hollingsworth v. Perry to rule that marriage is a constitutional right available to all Americans, gay or straight.”

2.”The court could declare that same-sex marriage is not protected by the Constitution.”

3.”The Supreme Court may decide that states that recognize same-sex civil unions or domestic partnerships — and provide them with nearly the same benefits of marriage — cannot legitimately bar same-sex marriage.” (This one has more to do with the DOMA case to be heard on Wednesday, but it’s still something to keep in mind.)

4. “The Supreme Court ruling could apply just to California because of the case’s unique circumstances.”

5.”The Court could decide the proponents of Proposition 8 have no standing in court and dismiss the case entirely.”

As many have pointed out, a sixth outcome would be that the Court decides to simply apply its decision to the nine states as well as the District of Columbia that currently allow same-gender marriage, though this outcome is highly unlikely.

Of particular interest during this morning’s arguments appeared to be the question of “harm.” According to the USA Today during this morning’s arguments,”Justice Anthony Kennedy noted that there were 40,000 children in California with same-sex parents who would likely want their parents to have the same rights as heterosexual parents.”

Scalia appeared to maintain his anti-equality stance however,”saying that not enough information is known to determine whether same-sex parenting can be harmful to children.”

On a broader scale, the Justices also appeared to question the authority of California voters “to appeal a lower court ruling that blocked enforcement of the marriage ban.”

What will happen, though, is still anybody’s guess. One thing is for sure, as Chris Stoll, a senior staff attorney at the National Center for Lesbian Rights tells the Washington Blade, “any decision from justices that would extend rights to gay couples — whether on the merits or through issues of standing — would be a “milestone” for the LGBT community.”

You can listen to the recording of the hourlong historic arguments, which will be made available at around 11:00 a.m. MST by CLICKING HERE. You can read a full transcript of the arguments HERE. The Court is expected to take up arguments on the so-called Defense of Marriage Act tomorrow.

Supreme Court nearing more Gay Briefs than Andrew Christian


As the date for the mother-of-all marriage equality showdowns draws closer, there’s been a flurry of “friend of the court” briefs filed this week.

Those wishing to be seen as standing on the right side of history when it comes to asking the court to overturn California’s Prop 8 and DOMA, include over 60 major corporations, including Apple, Facebook and Morgan Stanley, the thirteen states that now offer marriage equality, including Washington and Oregon, PFLAG and the Utah Pride Center.

The Salt Lake City Tribune reports, Utah Pride’s “…filing comes amid recent declarations of support for same-sex marriage from more than two dozen prominent Republicans, such as former Utah Gov. Jon Huntsman. Last month, the LDS Church and other evangelical churches and groups submitted their legal arguments for traditional marriage.”

“The brief from the center — a nonprofit based in Salt Lake City to serve Utah’s LGBT community — also addresses LGBT service members coming to the Beehive State,” reports the paper.

President Obama, who has already given his support for an overturn of DOMA is also weighing in on Prop 8, “The Obama administration will throw its support behind a broad claim for marriage equality, urging the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage there,”  reported the New York Times on Wednesday.

NFL players the Vikings’ Chris Kluwe and the Baltimore Ravens’ Brendon Ayanbadejo have also filed a joint brief.  According to the HRC,”The brief argues the importance of professional athletes – along with other traditionally “hidebound field like rap and R &B” — to stand on the right side of history as role models for American youth.”

“When we advance the idea that some people should be treated differently because of who they are, demeaned in public as lesser beings, not worthy of the same rights and benefits as others despite their actions as good citizens and neighbors, then we deny them equal protection under the laws. America has walked this path before, and courageous people and the Court brought us to the right result. We urge the Court to repeat those actions here,” Kluwe and Ayanbadejo write.

The first case, Hollingsworth v. Perry, is a direct challenge to California’s discriminatory Prop 8 law forbidding same-sex marriages. It was filed on behalf of two couples by attorneys Ted Olson and David Boies in May 2009. Last February, the Ninth Circuit court of Appeals upheld U.S. District Judge Vaughn Walker’s 2010 ruling declaring Prop 8 unconstitutional.

The Supreme Court is scheduled to hear arguments in the case on March 26th.

The second case, United States v. Windsor, challenges the federal government’s denial of benefits to legally married gay and lesbian couples under a law known as the Defense of Marriage Act.

According to the Kent College of Law, “The Defense of Marriage Act (DOMA), enacted in 1996, states that, for the purposes of federal law, the words “marriage” and “spouse” refer to legal unions between one man and one woman. Since that time, some states have authorized same-sex marriage. In other cases regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth Amendment, but the courts have disagreed on the rationale.”

Scotusblog reports that the judges will be deciding,”(1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.”

They’ll hear that case on March 27th.

The Justices will question lawyers for each side at hearings scheduled to last an hour each.

LGBT groups across the country are planning marches, or similar actions, during the pivotal week to show their support. (Click HERE to learn more.)

Meg Whitman, other GOP officials: Overturn Prop 8!


Hewlett-Packard CEO and former California gubernatorial candidate, Meg Whitman, has joined 74 other top ranking republicans in asking the Supreme Court to overturn California’s discriminatory proposition 8.

According to the New York Times,”Dozens of prominent Republicans — including top advisers to former President George W. Bush, four former governors and two members of Congress — have signed a legal brief arguing that gay people have a constitutional right to marry, a position that amounts to a direct challenge to Speaker John A. Boehner and reflects the civil war in the party since the November election.”

The brief, which is expected to be filed with the court this week includes other GOP names,”Among…Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York; Stephen J. Hadley, a Bush national security adviser; Carlos Gutierrez, a commerce secretary to Mr. Bush; James B. Comey, a top Bush Justice Department official; David A. Stockman, President Ronald Reagan’s first budget director; and Deborah Pryce, a former member of the House Republican leadership from Ohio who is retired from Congress.”

Whitman signing on to the brief is  especially stunning considering the former ebay chief supported the proposition during her bid for governor.

“Jon M. Huntsman Jr., the former Utah governor, who favored civil unions but opposed same-sex marriage during his 2012 presidential bid, also signed. Last week, Mr. Huntsman announced his new position in an article titled “Marriage Equality Is a Conservative Cause,” a sign that the 2016 Republican presidential candidates could be divided on the issue for the first time,” the Times reports.

Ken Mehlman, the former GOP chairman who was forced out of the closet by blogger Michael Rogers after supporting several anti-equality issues, tells the paper,”We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8.”

The Supreme Court is scheduled to hear the case on March 26th. The justices are also scheduled to hear arguments in a case challenging the so-called “defense of marriage act” the following day.

LGBT groups across the country are planning marches, or similar actions, during the pivotal week to show their support. (Click HERE to learn more.)

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