And Veterans Benefits
August 30th, 2013
When the U.S. Supreme Court struck down Section 3 of the Defense of Marriage act, it didn’t address any other sections of the law which also limit the definition of marriage, like Title 38, the portion of the U.S. code covering veterans’ benefits. That code barred the VA from recognizing marriages for couples residing in states where that marriage is illegal. It looks like that restriction is history as well:
U.S. District Judge Consuelo Marshall, a Carter appointee, grants summary judgment in favor of plaintiffs by determining the U.S. government lacks any rational basis in withholding these benefits. Marshall finds current law doesn’t advance gender equity or military purposes.
“Title 38 is not rationally related to the military’s commitment to caring for and providing for veterans benefits,” Marshall writes. “[T]he court permanently enjoins Defendants from relying on [Title 38] or Section 3 of [DOMA] to deny recognition of Plantiffs’ marriage recognized by the State of California.”
It’s not immediately clear Thursday night whether the ruling means the U.S. government is enjoined from blocking benefits for all gay married veterans or only the plaintiffs who filed suit in the case. However, the court declared the law unconstitutional, not just as applied to the plaintiffs.
HHS Extends Medicare Coverage for Same-Sex Spouses in Nursing Homes
August 30th, 2013
This may seem like a little thing, until it’s time for you and your spouse to go into a nursing home:
Today, the Department of Health and Human Services (HHS) issued a memo clarifying that all beneficiaries in private Medicare plans have access to equal coverage when it comes to care in a nursing home where their spouse lives. This is the first guidance issued by HHS in response to the recent Supreme Court ruling, which held section 3 of the Defense of Marriage Act unconstitutional.
…“Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation,” said Centers for Medicare & Medicaid Services (CMS) Administrator Marilyn Tavenner. “Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose.”
Under current law, Medicare beneficiaries enrolled in a Medicare Advantage plan are entitled to care in, among certain other skilled nursing facilities (SNFs), the SNF where their spouse resides (assuming that they have met the conditions for SNF coverage in the first place, and the SNF has agreed to the payment amounts and other terms that apply to a plan network SNF). Seniors with Medicare Advantage previously may have faced the choice of receiving coverage in a nursing home away from their same-sex spouse, or dis-enrolling from the Medicare Advantage plan which would have meant paying more out-of-pocket for care in the same nursing home as their same-sex spouse.
Equality Means that You, Too, May Be Eligible for the “Marriage Penalty”
August 30th, 2013
Two months after the U.S. Supreme Court declared Section 3 of the Defense of Marriage Act unconstitutional, the Treasury Department has ruled that same-sex married couples will be treated just like all married couples when they file their tax returns, regardless of whether they currently live in a state that recognizes same-sex marriage. That’s the good news for many and bad news for those whose combined incomes when filed as married pushes them into a higher tax bracket. Those are the breaks.
But the good news for everyone is that the Treasury Department’s determination on how same-sex couples will be treated on taxes means that they will be treated as married couples with federal estate and gift taxes, and the tax breaks that married couples get when a spouse is covered under an employer-provided health plan. Until now, the cost of those benefits was seen as extra income that was taxed at the full rate.
The ruling does not apply to couples who have domestic partnerships, civil unions, or other non-marriage arrangements. Married couples have the option of filing an amended return to claim refunds for tax years 2010 through 2012.
For married couples in states which do not recognize same-sex marriage, life can become interesting when they go to file the state income taxes this year. Before yesterday’s ruling, couples in, say, Massachusetts had to fill out their Federal forms twice: once as single individual for Federal tax purposes, and again as a married couple to figure out what their correct (and lower) Massachusetts state income tax would be. That’s because most state governments peg their state taxes according to what you paid at the federal level. But now that what married couples will be paying a different rate at the federal level, it’s unclear what the 37 states which do not recognize same-sex marriage will require their residents to do:
“I expect what will happen is that Ohio will say you have to file as single, and that they will do that based on the constitutional amendment,” (Lambda Legal director John) Davidson said. Santa Clara University Law professor Patricia Cain agreed, telling BuzzFeed states like Ohio with such amendments will have to “change their state income tax reporting rules to unhook them from federal reporting.”
Looking at a pending case in which a federal judge in Ohio has questioned Ohio’s failure to recognize the marriage of a same-sex couple, Jim Obergefell and John Arthur, who married in another state, however, Davidson also said, “But, as the Obergefell decision suggests, this is just going to prompt more litigation.”
Davidson pointed out that, in addition to Ohio, there are federal lawsuits by same-sex couples seeking marriage recognition pending in federal courts in Arkansas, Kentucky, Louisiana, Nevada, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah and Virginia and state lawsuits pending in Arkansas, Kentucky, Illinois, New Jersey, New Mexico and Texas.
OPM Moves Quickly On Spousal Benefits For Federal Employees and Retires
June 28th, 2013
The Office of Personnel Management — think of them as the HR department for the entire U.S. government — has moved quickly in the wake of Wednesday Supreme Court decision striking down the Defense of Marriage Act. In a memorandum to executive department and agency heads, OPM acting director Elaine Kaplan has announced that the government “will now be able to extend benefits to Federal employees and annuitants who have legally married a spouse of the same sex.”
The memo indicates that additional information will be forthcoming, but effective immediately, employees and retirees can obtain health insurance, life insurance, Dental and Vision Insurance, Long-Term Care Insurance, and Flexible Spending Accounts (FSA) to cover their married spouses, and step-children. Most of those benefits are also available to spouses of Federal retirees as well. Retirees can also claim a survivorship for their married spouses, although, as is already the case with opposite-sex married spouses, a survivorship option can result in a reduction in their monthly pension. The OPM memo says that additional guidance will be forthcoming on that option, as well as on other benefits.
OPM has confirmed to BuzzFeed’s Chris Geidner that the marriage benefits doesn’t depend on the state in which the employee or retiree resides:
Additionally, the memorandum states at several points that the changes apply to “all legally married same-sex spouses,” which an OPM spokesman confirmed includes couples who are legally married in one state but live in a state that does not recognize the marriage.
“Yes, these benefits will be available to any Federal employee or annuitant who has a valid marriage license, regardless of their State of residency,” Thomas Richards, OPM director of communications, told BuzzFeed Friday afternoon.
Liberty Counsel’s Mat Staver: Recognizing People’s Marriages Is Just Like Slavery, Eugenics and the Japanese Internment
June 28th, 2013
They’re still chattering. Via Right Wing Watch:
I’m very dissapointed in this decision. I think this decision represents a line that the court has crossed into illegitimacy. We’ve seen this before in its history, where it decided the Dred Scott decision, which was an illigitimate decision; the Korematsu decision which was the Japanese interment decision; the Buck v. Bell decision that says its okay to force people to be sterilized, an illegitimate decision. All of which we say were dark spots in the Court’s history. I think today’s decision falls into that same category. This decision is by five justices that cut the tether between themselves and the Constitution. They are in their own fantasy world that there is somehow an equal protection right to mame-sex marriage.
Speaking of illegitimate: Mat Staver founder of Liberty Counsel. He’s also a vice president at Liberty university and the dean of its law school, which teaches his law students should ignore the law counsel their clients to break the law in favor of “God’s Law.” And according to a RICO lawsuit filed last year connecting his law school to the Miller-Jenkins kidnapping case, his law school practices what he teaches.
Obama: Marriage Benefits Should Cross State Lines
June 27th, 2013
One of the unsettled questions in light of yesterday’s DOMA ruling is whether a same-sex couple living in Pennsylvania (where there is no marriage equality in state law) but married in New York (where there is) is entitled to federal recognition of their marriage. President Barack Obama, speaking while on tour in Africa, has White House lawyers looking into the issue:
He says as president, he believes federal benefits should be granted to couples married in a state that recognizes gay marriage even if they move to a state that doesn’t.
Obama says he asked his lawyers to start evaluating how to update federal statutes to grant gay couples federal benefits even before the high court ruled.
Rep. Jerrold Nadler (D-NY) and Sen. Dianne Feinstein (D-CA) introduced the Respect for Marriage Act in their respective chambers yesterday, which would repeal the remaining provision of DOMA that allows states to ignore lawful same-sex marriages performed in other states. It would also explicitly clarify the question of whether Federal recognition of a marriage is dependent on the couple’s residency. While the measure enjoys bipartisan support, no movement is expected in the GOP-controlled House.
Christie Slams DOMA Ruling
June 27th, 2013
New Jersey GOP Gov. Chris Christie, whose name is often brought up as a potential 2016 presidential contender, blasted yesterday’s U.S. Supreme Court ruling declaring Section 3 of the Defense of Marriage Act unconstitutional:
“I don’t think the ruling was appropriate. I think it was wrong. They, the Court, without a basis in standing, substituted their own judgment for the judgment of a Republican Congress and a Democratic President. In the Republican Congress in the ‘90s and Bill Clinton. I thought that Justice Kennedy’s opinion was, in many respects, incredibly insulting to those people, 340-some members of Congress who voted for the Defense of Marriage Act, and Bill Clinton. He basically said that the only reason to pass that bill was to demean people. That’s heck of a thing to say about Bill Clinton and about the Republican Congress back in the ‘90s. And it’s just another example of judicial supremacy, rather than having the government run by the people we actually vote for. So I thought it was a bad decision.
Christie reiterated his vow to again veto a marriage equality bill in New Jersey, insisting instead that the rights of New Jersey LGBT couples be put to a vote.
Will The Real Rand Paul Please Stand Up
June 26th, 2013
Sen. Rand Paul (R-KY) has had quite a whipsaw of a day. This morning, he appeared on Glenn Beck’s radio program to talk about the Supreme Court marriage decisions. Beck said that today’s decisions opened up the possibility that “one man, three women. Uh, one woman, four men” can get married. Paul took Beck’s lunacy a step further:
I think this is the conundrum and gets back to what you were saying in the opening — whether or not churches should decide this,” Paul said on Glenn Beck’s radio show Wednesday morning. “But it is difficult because if we have no laws on this people take it to one extension further. Does it have to be humans? You know, I mean. So there really are — the question is what social mores, can some social mores be part of legislation?”
“Historically, we did at the state legislative level, we did allow for some social mores to be part of it,” the Kentucky Republican continued. “Some of them were said to be for health reasons and otherwise, but I’m kind of with you, I see the thousands-of-year tradition of the nucleus of the family unit. I also see that economically, if you just look without any kind of moral periscope and you say, what is it that is the leading cause of poverty in our country? It’s having kids without marriage. The stability of the marriage unit is enormous and we should not just say oh we’re punting on it, marriage can be anything.”
Paul walk that statement back a couple of hours later in an interview on Fox News:
“I don’t think it will be with multiple humans, and I think it will be human and human,” Paul said on Fox News. “I didn’t mean that to mean anything other than that I think the government will still probably be involved in defining marriage to a certain aspect. I don’t think we’re going on towards polygamy or things beyond that.”
And a few hours after that, Paul’s transformation was complete when he told ABC that the Republican Party will simply have to “agree to disagree on some of these issues.”
DOMA Splits GOP Leadership and Rank-And-File
June 26th, 2013
House Speaker John Boehner (R-OH) issued this brief statement after the DOMA decision was announced:
Congress passed the Defense of Marriage Act on an overwhelmingly bipartisan basis and President Clinton signed it into law. The House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally. While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances. A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman
As BTB’s Timothy Kincaid pointed out, many are seeing his statement and others from Sen. John Cornyn (R-TX) and Senate Minority leader Mitch McConnell (R_KY) as a sign that Republican leadership isn’t eager to take up opposition to marriage equality in the nation’s Capital. They can see the tea leaves as well as anyone. Well, almost anyone. One rank and file Congressman looked at Boehner’s statement and saw things differently:
Rep. Tim Huelskamp (R-Kan.), speaking at a Tuesday meeting between reporters and conservative lawmakers, said he will file a constituional amendment in Congress late this week to restore DOMA. Huelskamp said he will be joined by other conservatives.
“My response to this [decision] will be later this week to file a federal marriage amendment,” he said.
When asked if leadership is likely to support efforts to restore DOMA, Huelskamp said he was encouraged by the Boehner’s statement after the ruling. “I give tremendous credit to the Speaker of House,” Huelskamp said.
Whatever Huelskamp may think he saw in Boehner’s statement, I think it’s safe to say however that DOMA’s revival will be DOA as soon as it hits the House floor.
Meanwhile, Florida Senator and possible 2016 presidential contender Marco Rubio strikes a different tone:
I believe the Supreme Court made a serious mistake today when it overstepped its important, but limited role. I do not believe that President Clinton and overwhelming bipartisan majorities of both houses of Congress acted with malice or intent to ‘demean’ a class of people when they adopted a uniform definition of marriage for the purposes of federal law. The Court should not have second guessed the will of the American people acting through their elected representatives without firm constitutional justifications. The sweeping language of today’s majority opinion is more troubling than the ruling itself as it points to further interference by the Court in the years to come.
For millions of Americans, the definition of marriage is not an abstract political question, or some remote legal debate. It’s a deeply personal issue. It’s an issue that I have grappled with as well.
I believe that marriage is a unique historical institution best defined as the union between one man and one woman. In the U.S., marriage has traditionally been defined by state law, and I believe each state, acting through their elected representatives or the ballot, should decide their own definition of marriage. For the purposes of federal law, however, Congress had every right to adopt a uniform definition and I regret that the Supreme Court would interfere with that determination.
Dem Reps. Cheer Marriage Decisions
June 26th, 2013
A paraphrase of what they said:
Rep. Nancy Pelosi (D-CA): Oh happy day! Justice was done for thousands of LGBT families nationwide. Forty-four years after Stonewall. Supreme Court bent the arc of history toward justice. Equal protection is a promise kept. More work to be done. Applauds the inspiration of Harvey Milk, the courage of Edie Windsor.
Rep. Steny Hoyer (D-MD): Principles of equal justice under law. Maryland and other states wanted full marriage equality. Now they get it. A good day for every American. Fifty years ago, one of my first votes as state Senator was to repeal the miscegenation law in Maryland. Another step for equality, justice, inclusion.
Rep. Jerrold Nadler (D-NY): History of the U.S. can be read as an expanding of “all men are created equal.” Today is another step in that evolution. Breathes life into constitution’s promise of equal liberty for all. DOMA embodied contempt and animus. Work is not done. DOMA in its entirety must be wiped from the books. Reintroduction of Respect for Marriage Act later today.
Rep. Jared Polis (D-CO): Was on the steps of the Supreme Court when decision was handed down. Not a single anti-equality protester. This is the system working for families like mine. Americans are more than ready for this decision. Battle is far from done. People can still be fired, kids face bullying. Congress still has a critical role.
Rep. David Cicilline (D-RI): Applauds the simplicity of the court’s analysis and power of the decision. DOMA was designed to stigmatize and harm LGBT people. Decision helps to transform the lives of thousands of families. Gives meaning to our values.
Rep. Sean Patrick Maloney (D-NY): Called partner, Randy, of 21 years. Couldn’t get the words out. For families like mine, when I get the kids ready for school, etc., they aren’t growing up in a family that is less than someone else’s. (Holding back tears.) Brown v. Board of Ed., Loving v. Virginia, Lawrence v. Texas, and now we are even more American.
Rep. Mark Pocan (D-WI): 93 million people live in states with marriage equality. WE still face barriers. Make sure every single loving, committed relatinship can be recognized.
Rep. Mark Takano (D-CA): I challenge every California clerk to start issuing marriage licenses to every couple that desires one. “I feel jubilation, I feel fabulous, I feel every gay word I can think of.” Kennedy wrote beautiful sentences and reached for the poetic. Stirring words: DOMA humiliates the children of same-sex couples.
GOP Reps. React To Marriage Decisions
June 26th, 2013
In case you don’t want to watch the video, here’s a non-transcript rendition of what they said:
Rep. Steve Scalise (R-LA): Unelected judges.
Rep. John Fleming (R-LA): Popular laws = Constitutional. Unpopular laws = Unconstitutional.
Rep. Joe Pitts (R-PA): Thank you Boehner for defending it. Negative consequences for children.
Rep. Scott Garrett (R-NJ): We the people have final say, not unelected courts. Courts got Federalism wrong.
Rep. Tim Wahlberg (R-MI): Desires of adults not more important than needs of children. “Society itself is at risk and cannot continue.”
Rep. Doug LaMalfa (R-CA): Marriage has been debased. Why vote? It doesn’t stop here. Churches will be forced to do things they are against.
Rep. Randy Weber (R-TX): Court is in collusion with Obama at the expense of children. One more attack on religious institutions.
Rep. Louie Gohmert (R-TX): This is not a hateful group. We love the U.S.A. It’s all Obama’s fault. Holder lied. The Court (“the new holy quintet”) lied. Dishonesty, inconsistency. King Solomon!
Rep. Michele Bachman (R-MN): Limited government. Denied equal protection to every American in the United States. No more co-equal branches, but Supreme Court over all. Oligarchy of five. Limited government. Decision belies the constitution. “The people will have their sway.” Equal protection again. No jurisdiction. Foundational unit of society. Created by God. Supreme Court have not risen to the level of God.
Rep. Tim Huelscamp (R-KS): Narrow radical majority. Think of the children.
Obama Administration Moves Quickly on DOMA’s Demise
June 26th, 2013
President Barack Obama issued the following statement:
I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.
This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better
So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.
On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.
The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.
Attorney General Eric Holder is responds to the President’s request:
Today’s historic decision in the case of United States v. Windsor, declaring Section 3 of the Defense of Marriage Act unconstitutional, is an enormous triumph for equal protection under the law for all Americans. The Court’s ruling gives real meaning to the Constitution’s promise of equal protection to all members of our society, regardless of sexual orientation. This decision impacts a broad array of federal laws. At the President’s direction, the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision. Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over. Important, life-changing work remains before us. And, as we move forward in a manner consistent with the Court’s ruling, the Department of Justice is committed to continuing this work, and using every tool and legal authority available to us to combat discrimination and to safeguard the rights of all Americans.
Secretary of Defense Chuck Hagel also issued a statement promising to “immediately begin the process” of ensuring all military spouses enjoy the same benefits “as soon as possible“:
The Department of Defense welcomes the Supreme Court’s decision today on the Defense of Marriage Act. The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies. The Department of Defense intends to make the same benefits available to all military spouses — regardless of sexual orientation — as soon as possible. That is now the law and it is the right thing to do.
Every person who serves our nation in uniform stepped forward with courage and commitment. All that matters is their patriotism, their willingness to serve their country, and their qualifications to do so. Today’s ruling helps ensure that all men and women who serve this country can be treated fairly and equally, with the full dignity and respect they so richly deserve.
DOMA SECTION 3 IS DEAD!
June 26th, 2013
In a 5-4 decision, the US Supreme Court struck down Section 3 of the Defense of Marriage Act, the part that bars the federal government from recognizing same-sex marriage, has been struck down as unconstitutional.
The opinion is here (PDF: 329KB/77 pages). Justice Kennedy, writing for the majority:
DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13–26.
(a) By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of NewYork, and of 11 other States, have sought to protect. Assessing the validity of that intervention requires discussing the historical and traditional extent of state power and authority over marriage.
Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384. Marriage laws may vary from State to State, but they are consistent within each State.
DOMA rejects this long-established precept. The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. New York’s actions were a proper exercise of its sovereign authority. They reflect both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.
(b) By seeking to injure the very class New York seeks to protect,DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413
U. S. 528, 534–535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments are just as candid about the congressional purpose.DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.
DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. Pp. 20–26.
The justices recognize the broad reach of DOMA:
DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in person hood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others,the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. [Emphasis mine]
Chief Justice John Roberts dissented with Justice Antonin Scalia both on the question of standing and on the merits of the case. In Roberts’s dissent:
I agree with JUSTICE SCALIA that this Court lacks jurisdiction to review the decisions of the courts below. On the merits of the constitutional dispute the Court decides to decide, I also agree with JUSTICE SCALIA that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability am- ply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. Post, at 19–20 (dissenting opinion).
Scalia’s dissent, naturally, was much more pointed as to standing:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted leg- islation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
Scalia describes the court’s decision to hear the case “jaw drawing.” But since the court decided to hear the case on its merits, Scalia addressed them as well:
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex),there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968). Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
Scalia dismissed the animus behind DOMA:
But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “dis- parage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been questioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
…By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.
The Family “Research” Council will undoubtedly be quoting Scalia extensively in the days to come.
Alito’s dissent is similar to Scalia’s, if not quite as entertaining, but he does manage to parrot FRC and NOM:
The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understand-ing of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage— have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
We can expect something similar to take place if same sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.
DOMA Oral Arguments Released
March 27th, 2013
Audio and transcript of today’s oral arguments forWindsor v U.S. are available here.
DOMA’s Doom Appears Likely
March 27th, 2013
In contrast to yesterday’s Prop 8 hearing, where the Supreme Court looked like it was desperately seeking a way to avoid making a decision, today’s hearing for the Defense of Marriage Act was more focused, directly, or indirectly, on the statutes constitutionality itself. Like yesterday, Justices first tacked the issue of standing — should the House Bipartisan Legal Advisory Group (BLAG) be defending the statute instead of the Justice Department — but those arguments, it seemed to me, also centered on DOMA’s constitutionality:
Conservative justices sharply questioned why the Justice Department is refusing to defend DOMA as unconstitutional but yet enforcing the law and placing the gay-marriage question before the Supreme Court. Justices also questioned whether the case belonged before the court at all.
Chief Justice John Roberts told attorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.
Justice Antonin Scalia cited the longstanding Office of Legal Counsel memorandum that requires the Justice Department to defend laws passed by Congress, except in rare circumstances. He called it a “new world” where Attorney General Eric Holder can decide a law is unconstitutional, but yet not so unconstitutional that the executive branch won’t enforce the law.
…Justice Anthony Kennedy cited the controversial and “questionable” practice of presidential signing statements as an example. He said if the president doesn’t think a law is constitutional then he shouldn’t sign it. And said the same principle perhaps applied in this case — meaning if the president believes the law is unconstitutional, he shouldn’t enforce it.
…Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.
Justices set aside questions of standing for the second hour, which was set aside to examine the constitutionality of DOMA itself:
Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.
…Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.
…Justice Kagan said the House report that accompanied the legislation suggested at least some lawmakers had improper motives to enacting the law, such as for the purposes of voicing disapproval of homosexuality. Mr. Clement said the high court has never invalidated a statute on that basis.
The issue of federalism and the Tenth Amendment limiting the powers of the Federal Government, arguments which have been mostly lacking in the case against DOMA, appear nevertheless to be the handle that the Justices will likely grasp rather than the Equal Protection clause:
But Chief Justice John Roberts immediately changes the subject to the more abstract question of federalism: If, as the administration argues, the federal government can’t refuse to recognize state-authorized gay marriages, can it redefine marriage to favor same-sex couples? That is, to define committed same-sex couples as married for federal purposes even if a state doesn’t recognize them?
Justice Kennedy also is interested in this issue: Does the federal government using its own definition of marriage raise any federalism issues by stepping on the states’ traditional prerogative of family law?
…Justice Kennedy, who has championed states’ rights at the court, says there’s no need to reach the equal-protection issue if the federal government had no authority to supersede state marriage laws in the first place.
Josh Marhsall at Talking Points Memo notes the significance of the states rights arguments against DOMA:
If that’s the case, it would probably be the first time that “states rights” was ever used to vindicate any actual person or group’s rights. It’s almost always been bulwark behind which states hide to deprive citizens of rights. There are likely some marginal examples of the contrary. But the big verdict of history is unmistakable. It would be an ironic first.
The most powerful testimony in favor of equality
March 12th, 2013
Today, former GOP Representative Lynne Osterman testified in favor of marriage equality. Her testimony is, in my opinion, the most powerful argument that can be made for why you must do what is right.
If you watch no other testimony on marriage, watch this.
300 Employers Urge SCOTUS to Declare DOMA Unconstitutional
February 27th, 2013
More than 200 businesses, a couple score of law firms, sixteen civic, professional and trade groups, seventeen cities and counties and the United States Conference of mayors — the short list of signatories runs six pages alone — have signed on to an Amicus brief urging the U.S. Supreme Court to declare Section 3 of the Defense of Marriage Act unconstitutional. The brief, filed in support of Edith Windsor in Windsor v. U.S. (which is now available online), argues that DOMA “impairs employer/employee relations and other business interests”:
Federal law provides to the working family many benefits and protections relating to health care, pro-tected leave, and retirement. These protections provide security and support to an employee grappling with sickness, disability, childcare, family crisis, or retirement, allowing the employee to devote more focus and attention to his work.
DOMA thwarts these employee expectations, to the direct detriment of some married employees of amici , and, by extension, of amici ourselves. As set forth below, DOMA forces amici to consider the gender of the spouses of our lawfully married employees when determining the scope and manner of benefits that may be extended to those spouses (and the chil-dren of those spouses). DOMA enforces discriminatory tax treatment of spousal retirement and health care benefits. In many other benefit-related matters,amici may incur the cost and administrative burden of “workarounds” (employer-created benefit structures attempting to compensate for the discriminatory effects of DOMA), or leave the married workforce in separate castes.
Having states recognizing same-sex marriages while the Federal government willfully ignores those legal marriage produces a costly burden to employers:
These dual regimes have spawned an industry of costly compliance specialists. Some amici have had to pay vendors to reprogram benefits and payroll systems, to add coding to reconcile different tax and benefit treatments, to reconfigure at every benefit and coverage level, and to revisit all of these modifications with every change in tax or ERISA laws for potential DOMA impact. Attorneys and ERISA advisors must be consulted. Human resources, benefits,and payroll personnel must be trained and retrained as tax or ERISA laws change. Plan documents, enrollment forms, and administrative procedures must be scoured for the word “spouse,” and amendments and disclosures drafted to try to explain the numerous implications and consequences of a given benefits decision on the personal tax situation of an employee with a same-sex spouse. Enrollment systems must be reprogrammed to account for different spousal circumstances, and linked to provider records to ensure the providers extend appropriate coverage. Benefits and human resources departments, facing questions from employees with same-sex spouses regarding workplace benefit selections and coverage, must be adequately trained and prepared to explain the disparate treatment to employees who may later realize (perhaps too late) that their benefits choices and decisions carried unanticipated and significant financial implications. The complexity and uncertainty saps critical time, focus, and energy from the human resources and benefits administration function.
The second part of the brief goes the heart of the matter, that DOMA forces employers to “become the face of its mandate that two separate castes of married persons be identified and separately treated.”:
In the modern workplace, the employer becomes the face of DOMA’s discriminatory treatment, and is placed in the role of intrusive inquisitor, imputer of taxable income, and withholder of benefits. The employer is thus forced by DOMA to participate in the injury of its own workforce morale. Yale University’s error in administering DOMA, and its implementation of unexpected tax withholding against employees married to same-sex spouses in 2011, cast the university as the antagonist to its own employees. Many amici, as employers, provide certain workarounds that attempt to address some of the disparate treatment of same-sex couples that DOMA requires. Many amici that are cities and counties have gone even farther, making substantial efforts to prevent discrimination against same-sex couples, up to and including passing anti-discrimination ordinances and amending city charters to outlaw discrimination against same-sex couples. Administering and implementing DOMA subverts efforts to eliminate obstacles to full legal recognition for employees who have lawfully entered into committed relationships with persons of the same sex.
…For many employers, DOMA does violence to the morale of the institution itself. Like other persons, legal and natural, amici are motivated by core principles. As of December 2012, 88% of Fortune 500 companies provided nondiscrimination protection for their gay and lesbian employees. …These principles spring from hard experience. Our organizations are engaged in national and international competition -— for talent, customers, and business. That competition demands teamwork, and teamwork thrives when the organization minimizes distracting differences, and focuses on a common mission. DOMA’s core mandate -— that we single out some of our married colleagues and treat them as a lesser class —- upsets this imperative.
Our principles are not platitudes. Our mission statements are not simply plaques in the lobby. Statements of principle are our agenda for success: born of experience, tested in laboratory, factory, and office, attuned to competition. Our principles reflect, in the truest sense, our business judgment. By force of law, DOMA rescinds that judgment and directs that we renounce these principles or, worse yet, betray them.
Earlier today, it was announced that more than sixty businesses have submitted a brief to the U.S. Supreme Court urging it to declare California’s Prop 8 unconstitutional. While I haven’t been able to find the full text of that brief, it appears that at least some of the arguments made there are repeated here. That brief argued that Prop 8 “leave(s) companies in the untenable position of being compelled implicitly to endorse the second-class status to which their gay and lesbian employees, clients, customers, and business associates are relegated. …Until the law no longer relegates same-sex couples to second-class status as inferior “domestic partnerships,” our adherence to the law compels us to abide by a distinction that stigmatizes and dehumanizes gay men and lesbians.”
Signatories to the Windsor brief includes many of America’s top companies and brands, including Aetna, Alaska Airlines, Amazon.com, AIG, Apple, A|X Armani Exchange, BNY Mellon, Bankers Trust, BlackRock, Caesars Entertainment, CBS, Cisco, Citigroup, The Corcoran Group, Coupons.com, Deutche Bank, eBay, Earnst & Young, Facebook, Goldman Sachs, Google, Horizon Air, Intel, Intuit, JetBlue, the Jim Henson Company, Johnson & Johnson, Levi Strauss, Liberty Mutual, Marriot International, Mars, McGraw-Hill, Microsoft, Moody’s, Morgan Stanley, New York Life, Nike, Oracle, Orbitz, Pfizer, Qualcomm, REI, salesforce.com, Starbucks, Thomson Reuters, Twitter, Viacom, Walt Disney, and Xerox. That is just a short list of the big names. There are about 300 more. I look forward to the American Family Association’s next boycott announcement.
Obama Administration Files Brief Asking SCOTUS To Strike Down DOMA Section 3
February 25th, 2013
Last Friday, President Obama’s Solicitor General, Donald Verrilli, filed this brief in United States v. Windsor, urging the Supreme Court to strike down Section 3 of the Defense of Marriage Act as unconstitutional. Section 3 is the portion of the law which bars the federal government from recognizing same-sex marriages which are lawfully performed by the states.
The brief argues that the case before the Supreme Court deserves heightened scrutiny due to the long history of discrimination that gays and lesbians have experienced throughout history. This argument is in keeping with the Justice Department’s announcement in 2011 that it would no longer actively defend DOMA in Federal Court. After laying out the reasons for examining the law under heightened scrutiny, Verrilli contends that DOMA fails that test.
But in an interesting twist, Verrilli also recognized that the Court has long been reluctant to apply heightened scrutiny. If the Court says that the proper standard for evaluating DOMA is the “rational basis” standard — which is highly deferential to Congress’ decision-making — then the Defense of Marriage Act would survive constitutional muster. But Verrilli also contends that the U.S. Supreme Court, in striking down state sodomy laws in 2003′s Lawrence v. Texas, the court already chose a standard that goes above “rational basis,” Justice Sandra Day O’Connor called “a more searching form of rational basis.” And under this view, DOMA would fail the test:
To the extent sexual orientation may be considered to fall short in some dimension [to apply heightened scrutiny test], the history of discrimination and the absence of relation to one’s capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an“unpopular group.”
Section 3 would fail to satisfy any such analysis,largely for the reasons it fails heightened scrutiny.Like the law struck down in Romer (Romer v. Evans, which struck down a Colorado constitutional amendment prohibiting gays and lesbians from seeking anti-discrimination protections in state and local laws), Section 3 is “at once too narrow and too broad.” It imposes a “broad and undifferentiated disability” on the same narrow class of people at issue in Romer — gay and lesbian people — by denying effect to their state-recognized marital relationships across the entire spectrum of federal law. And the asserted rationales are sufficiently “far removed from” the effect of the law — particularly given its breadth — that they should not be credited as valid justifications.
The brief concludes:
BLAG (Br. 58-59) makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.
Boehner’s DOMA Pricetag Reaches $3 Million
January 15th, 2013
The House’s so-called Bipartisan Legal Advisory Group (BLAG) has upped the cap for their defense of the Defense of Marriage Act (DOMA) to a cool $3 million. The reason that I’m calling BLAG the “so-called Bipartisan” group is that only one party is driving this train and keeping the other party completely out of the loop. On January 4, the House adopted its rules for the 113th Congress, parts of which authorizes BLAG to intervene in other cases challenging DOMA and to speak for the House before the Supreme Court. At that point, the disclosed price tag was still $2 million, a cap that was revealed in December.
But today it was revealed that the cap was secretly raised by a staggering 50% to $3 million soon after the rules were adopted on January 4. After news broke about the increase, House Minority Leader Nancy Pelosi (D-CA) and Minority Whip Steny Hoyer (D-MD), the only two Democratic members of the group, responded in a letter to House Speaker John Boehner (R-OH):
“We wish to strongly reaffirm our objections to the repeated actions by the Republican leadership to secretly and dramatically increase the contract between the House and outside counsel in arguing to uphold the discriminatory Defense of Marriage Act (DOMA) in more than a dozen cases,” reads the letter from House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.).
“It is the height of hypocrisy for House Republicans to waste public funds in one breath then claim the mantle of fiscal responsibility in the next,” the letter continues. “With Republicans willing to take our economy and our country to the brink of default in the name of deficit reduction, there is simply no excuse for any Member of Congress to commit taxpayer dollars to an unnecessary — and futile — legal battle.”
House GOP leaders took over the defense of DOMA in Federal Court last year after the Justice Department determined that the law merited heightened scrutiny and was unconstitutional under that standard.
DOMA Repeal Picks Up GOP Support
December 30th, 2012
I missed this bit of news, coming as it did late on Friday afternoon before Christmas, but Rep. Richard Hanna (R-NY) announced that he would sign on as co-sponsor for the Respect for Marriage Act, the proposed bill to overturn DOMA. Hanna, who was just elected to a second term, joins Rep. Ileana Ros-Lehtinen (R-FL) in backing DOMA’s repeal.
Meanwhile, a spokesperson for Rep. Charlie Bass (R-NH) confirmed that he has become the third Republican to sign on as co-sponsor of a bill to repeal the Defense of Marriage Act. Unfortunately, he waited until after he lost his bid for re-election last month to Democrat Annie Kuster. So, you know, whatever. Bass voted for DOMA in 1996.