Box Turtle Bulletin

The Daily Agenda for Friday, November 30

TODAY’S AGENDA:
Protest At Uganda House: New York, NY. According to the American Equality Bill Project’s Facebook page, there will be a peaceful protest in front of the Ugandan Mission in New York. Picket signs will include messages like “Shame on Uganda” and “Gays Like Christmas, Too,” in reference to Speaker Rebecca Kadaga’s vow to pass the Anti-Homosexuality Bill by Christmas. The protest will take place at noon, at 336 East 45th Street.

US Supreme Court To Consider Hearing Multiple Marriage Cases: Washington, D.C. the Supreme Court Justices will gather this morning for a private conference to decide which of the many cases that have been appealed to the Court they will hear for this term. The conference doesn’t go into the substance of the cases themselves, but whether there is a compelling reason for the Court to take the case or let the lower court’s ruling stand. It only takes four of the nine justice to agree to hear the case for the Court to issue a writ of certiorari, which is the Court’s go-ahead for the case to proceed. Here’s an interesting statistic: For the 2009-1020 term, the Court received 8,159 petitions for writ of certiorari. They only accepted 87, or 1.005%.

It would take a pretty complicated scorecard to keep track of all of the marriage equality-related cases that are before the court this morning, but, broadly speaking, they fall nicely into three distinct categories. Let’s take the easiest one first:

Hollingsworth v. Perry. Formerly Perry v. Brown which was formerly Perry v. Schwarzenegger, this case comes to the Supreme Court after the Ninth Circuit Court of Appeals issued a very narrow ruling which declared that California’s Proposition 8 banning same-sex marriage unconstitutional. The Ninth Court didn’t rule on whether denying marriage violates the Constitution. Instead, its decision declaring Prop 8 unconstitutional hinged on the fact that same-sex couples saw their rights to marry taken away after having been able to legally marry for several months. It was the removal of an existing right that the Court found problematic.

Because of the narrowness of the Ninth’s decision, many legal observers speculate that the court may decline to take the case. And if that happens, then the Ninth Circuit Court of Appeals’ decision striking down Prop 8 as unconstitutional will stand and California’s same-sex couples will have their marriage rights restored. But if the Supreme Court takes the case — especially if it also decides to take one or more of the DOMA cases that are also before the court — then it may signal that the court is willing to take a more ambitious (and possibly aggressive) look at marriage for same-sex couples. The Court also has the option of holding Hollingsworth v. Perry for consideration later.

The DOMA Cases. While more than a dozen cases challenging Section 3 of the Defense of Marriage Act are working their way through the federal court system, I’ve managed to track down five of them in which one party or another has asked the Supreme Court to consider this term. They are:

U.S. v. Windsor. This case was brought by Edie Windsor, who is being forced to pay an inheritance tax of $363,053 after her legally married wife passed away. If she had been married to a man, would not have been required to pay the tax. But because DOMA’s Section 3 prohibits the federal government from recognizing same-sex marriages for any purpose, the IRS has billed her for the tax on her wife’s estate. Last October, the Second Court of Appeals in Manhattan has affirmed a lower court’s decision which held that Section 3 of the Defense of Marriage Act is unconstitutional. What makes this case notable is that the Court found that heightened scrutiny is justified in evaluating the constitutionality of DOMA. Of the DOMA challenges before the court, many feel that this case is the most likely one for the justices to take. It is also the case that the Justice Department selected as its preferred case.

BLAG vs. Gill. Formerly Gill vs. Office of Personnel Managementm the case was brought on behalf of several same-sex couples who were denied specific benefits which are routinely granted to opposite-sex married couples. The First Circult Court of Appeals ruling employed the rational basis test to evaluate the constitutionality of Section 3 because of a prior binding Circuit precedent which prohibited it from considering a higher level uf scrutiny. But even under rational basis, the court found that Section 3 violates the equal protection component of the Due Process Clause of the Fifth Amendment. This is the case that the House Bipartisan Legal Advisory Committee selected as its preferred case to defend Section 3 with. BLAG stepped in to defend DOMA when the Justice Department announced that they could find no constitutional reason to defend it. But one possible strike against this case is that Justice Elena Kagan is expected to recuse herself from this case because she served as the top appellate lawyer in the Obama administration before joining the court. She joined the court after Windsor made its way to the Appelate Court stage.

HHS v. Massachusetts. This case was brought by the State of Massachusetts, alleging that Section 3 of DOMA forced Massachusetts to discriminate against its own legally-married citizens while administering federally-funded programs. The First Circuit combined this case with what is now BLAG vs. Gill when it struck down Section 3.

Other DOMA cases which the Supreme Court may take up include:

• Golinski vs. OPM. It is currently before the Ninth Circuit Court of Appeals, but the Justice Department asked the Supreme Court to consider the case. The lower court found Section 3 unconstitutional.
• Pedersen v. OPM. It is currently before the Second Circuit Court of Appeals. In August, Pedersen asked the Supreme Court to review the case before the Second Circuit decides it so it can be heard together with Gill, and Mass v. HHS. The lower court in this case also found Section 3 unconstitutional.

The Court has the option of selecting any one or more these cases to hear. If it decides to hear more than one case, the Court may decide to combine the cases and hear them together. Of course, the court could decide to deny certiorari to all of these cases and leave the lower court decisions intact, but that is extremely unlikely.

A third marriage-related case (sort of) before the court is Brewer v. Diaz, in which the Ninth Circuit Court of Appeals struck down an attempt by the Arizona legislature to eliminate health care benefits for the same-sex partners and dependents of state employees following the passage of Proposition 102 in 2008. Prop 102 was a “narrow” same-sex marriage ban, one which did not eliminate domestic partnerships or other arrangements. Prop 102 supporters claimed that if it passed, they wouldn’t go after domestic partner benefits. But wouldn’t you know it, that turned out to be one of Gov. Janet Brewer’s (R) top priorities when she took office. None of that backstory is relevant to this case though; I’m just airing my gripes. The question before the Court is whether Arizona’s action violates the Equal Protection Clause by limiting healthcare benefits to married spouses and dependents. The Ninth says it does. Brewer says it doesn’t.

So what’s next? After the conference, the Court could announce which cases it will hear as early as this afternoon. If not, then we will probably know more on Monday morning when the Court is expected to release an Order List, which will list the cases that the court decided to deny certiorari. And if these cases don’t appear on either set of announcements, then that means that the court is continuing to hold the cases pending further consideration.

Events This Weekend: International Bear Pride, Cologne, Germany; Hong Kong Gay and Lesbian Film Festival, Hong Kong, China; Holly Folly, Provincetown, MA.

Robert T. Odeman (right) and Martin Ulrich “Muli” Eppendorf (left).

TODAY’S BIRTHDAY:
Robert Odeman: 1904. Born Martin Hoyer in Hamburg, he took his stage name when he began traveling throughout Europe performing as a classical pianist. When his playing career ended after suffering a hand injury, he turned to the theater as an actor. He met his first love, Martin Ulrich Eppendorf, at the age of 17, and they remained together for the next ten years. After his beloved Muli died in 1932, Odeman became musical director of a theater in Hamburg, and in 1935 he opened his own cabaret. The Nazis closed it a year later on the grounds that it was politically subversive. A year after that, in 1937, the Nazi’s pressured a bookseller to renounce Odeman as a homosexuals, and he was convicted under Paragraph 175, Germany’s notorious statute that outlawed homosexual acts between men.

After serving in prison for 27 months, he was released in 1940 under the terms of a Berufsverbot, or a professional ban on certain professions including public performances. He was also kept under police surveillance. In 1942, he was arrested again under Paragraph 175 and was sent to Sachsenhausen concentration camp. He was assigned an office job, which probably saved his life. An estimated 30,000 prisoners lost their lives there, from exhaustion through forced labor, disease, or were executed. When the Red Army advanced on Sachsenhausen, the camp’s SS guards ordered the 33,000 remaining inmates on a forced March. Thousands more prisoners did not survive the death march. But Odeman and two other “175’ers” were able to escape.

After the war, Odeman returned to Berlin, where he worked as an actor, composer, and author of satirical poems. Because Paragraph 175 remained on the books, Odeman continued to be regarded as a convicted criminal under the law and, like others convicted under the statute, he was denied compensation. He died in 1985 at the age of 81.

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As always, please consider this your open thread for the day.