The Federal Government already does recognize your marriage in Los Angeles
June 7th, 2012
In the spate of DOMA challenges, I think it might provoke thought to rehash a DOMA case from last year. One in which the Federal Government conceded that – at least in some cases – same-sex married couples are, indeed, married.
February 24, 2011 – Gene Balas and Carlos Morales jointly filed for Chapter 13 Bankruptcy (a cooling down time to allow them to come up with a repayment plan).
March 28, 2011 – the attorney representing the Office of the United States Trustee at their initial hearing, noted that both Balas and Morales were male and therefore could not file a joint petition.
April 15, 2011 – the Trustee’s objection was formalized by Motion to Dismiss.
May 11, 2011 – this was the date set for hearing. The Bipartisan Legal Advisory Group (Paul Clement, under the direction of House Speaker Boehner) requested an extension until June 13, 2011.
June 13 2011 – BLAG filed no objections to the statements and arguments of Balas and Morales. Finding the the government’s “non-response to the Debtors’ challenges” to be noteworthy, Federal Bankruptcy Judge Thomas Donovan sided with the Debtors.
The Debtors have demonstrated that DOMA violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution, either under heightened scrutiny or under rational basis review. Debtors also have demonstrated that there is no valid governmental basis for DOMA. In the end, the court finds that DOMA violates the equal protection rights of the Debtors as recognized under the due process clause of the Fifth Amendment.
In a rather unusual action, 20 of the 24 Central California Bankruptcy Court judges signed the ruling.
June 27, 2011 – the US Trustee appealed the decision.
June 30, 2011 – seven Trustees (that serve cases under the US Trustee) requested immediate certification of appeal to the Ninth Circuit, expressing concern that there was no certainty at the level on which it was decided (I know and work with several of these Trustees and they most certainly are supportive of marriage equality).
July 6, 2011 – noting that the President and Justice Department would no longer defend DOMA3 the US Trustee requested to withdraw his appeal.
The Department of Justice has advised the House Bipartisan Legal Advisory Group (the “BLAG”) of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA. The BLAG is actively participating in litigation in several other courts in which the constitutionality of Section 3 has been challenged. In light of the decision by the BLAG not to participate in this appeal and the availability of other judicial fora for resolution of the constitutional question, the United States Trustee has determined that it is not a necessary or appropriate expenditure of the resources of this Court and the parties to continue to litigate the appeal.
July 11, 2011 – the appeal was dismissed. Balas and Morales continued with their joint bankruptcy as the married couple that they are.
So how, exactly, does this play into the whole scheme of DOMA challenges? It would appear that if you file for bankruptcy in Los Angeles, then the Federal Government considers your marriage to be valid. It would be most curious if Balas and Morales were to make a social security claim based on marriage; how could the government object? It has already conceded that they are married.
Pelosi: If Dems Win The House, DOMA Defense Goes Away
June 7th, 2012
“First of all, we can expect something to go away, like stop spending taxpayer dollars on the Defense of Marriage of Act, which is a waste of money and not the right thing to do,” Pelosi said.
…She said she thinks Republicans believe DOMA is unconstitutional because when they controlled the House under the Bush administration, they tried to pass court-stripping provisions denying judicial review for the anti-gay law and others.
“They had to know that there was a weakness constitutionally in that bill, if they would want to put court-stripping provisions in relating to DOMA and the rest,” Pelosi said. “So, we think they know it’s weak constitutionally.”
Someone dropped a house on DOMA – again
June 6th, 2012
Okay by now it’s clear that DOMA is pretty much dead and it just doesn’t know it yet.
In the case of Edie Windsor, Federal Judge Barbara S. Jones has now informed the government that it cannot tax Windsor differently than any other widow. In Edie’s case, the ‘gay tax’ charged to her was $363,053.
When Edie’s wife died, Edie inherited her wife’s estate. Now normally, when a spouse inherits no inheritance tax is assessed. However, due to DOMA, gays get special treatment. We get the special right to pay more taxes than straight people (funny, anti-marriage conservatives never talk about this).
But Judge Jones said no. Nope. Nada. Nosireeee. No brainer.
Which makes this about, oh idunno, the fifth time that a Federal Judge has said that DOMA violated the US Constitution. And after that many whacks in the head by flying floorboards, it’s dead. Grab those shoes and look out for some really angry flying monkeys.
Some thoughts on the Massachusett and Gill appeals ruling
May 31st, 2012
Some initial thoughts upon reading the ruling (supplemental to Jim’s excellent write-up)
1. “…the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.”
You can almost hear the sarcasm dripping off the page of the ruling. Basically, he’s saying that it’s hard to assess the rationale when there was little rationale at all. Later Boudin rejects the presumption of ill intent, but it’s clear that he was not impressed by the thoughtless way in which the bill was enacted.
The rush to pass DOMA coupled with the premise that “everyone knows marriage is a man and a woman” plus the wisdom of some legislators not to go on record with any legal arguments in its favor may have proven to be its downfall. Having almost no hearing on the matter limited the number of possible benefits of the bill that were proposed.
2. It’s a bit interesting that the court tossed out the rational v. heighten review analysis. Instead they found a new methodology of thinking which applies intensified scrutiny to “historically disadvantaged and unpopular” groups, whether or not they have been assigned suspect classification.
This is fascinating and (political junkies, this is for you) an interesting take on the Republican think tank arguments that law and policy ought to be blind to group politics. (This sounds contradictory, so stick with me). It sounds a bit like Boudin is saying that matters should not be based on whether the group before him is a traditionally recognized minority as approved by court precedent, but whether they are a group that has experienced disadvantage.
If so, this is a rather significant legal shift. If this stands, it could be a huge legal precedent to any group that experiences hostility based discrimination.
3. This is the first time that courts have addressed Federalism in relation to DOMA. I’ve long thought this was the strongest line of argument, but the First Circuit did not see it those terms. It may not have been as compelling to the court as I have thought, but it is nevertheless a consideration and increases the intensity of the review.
“…but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”
4. Evidently some of you have been invading Judge Boudin’s dreams because the following statement is quite similar to comments made here with regularity:
The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
Darn those radical activist judges for using straight-forward logic.
5. I learned a new word: encomia.
n. pl. en·co·mi·ums or en·co·mi·a
1. Warm, glowing praise.
2. A formal expression of praise; a tribute
6. The court lays out the only way in which DOMA is permissible: blind deference.
If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.
7. And again the matter is stayed.
Yes, this is the correct and proper action when a case is unquestionably going to be appealed up the ladder. But it truly is frustrating and is a hardship on real families. And I rather doubt that it will be any time soon that DOMA finally reaches its (rather likely) death.
Federal Appeals Court Rules DOMA Unconstitutional
May 31st, 2012
The First Circuit Court of Appeals has ruled that Section 3 of the Defense of Marriage Act, the section that bars federal recognition of legal marriages granted by the states, is unconstitutional. The three-judge panel ruled unanimously to upholds Federal District Judge Joseph Tauro’s 2010 decision.
The decision is in response to two separate cases which were combined by the lower court. The first case, Gill v. Office of Personnel Management, was brought on behalf of several same-sex married couples who are denied specific benefits which are routinely granted to opposite-sex married couples. The second case, Commonwealth of Massachusetts v US Dept. of Health and Human Services, was brought by the state of Massachusetts which argued that because of DOMA, the state was caught in a bind between discriminating against legally married same-sex couples or forfeiting federal funding for programs and benefits that married couples are otherwise entitled to. The appeals court heard oral arguments for the two cases in April.
Judge Michael Boudin, a President George H.W. Bush appointee, wrote for the court:
This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
The court found that the plaintiff’s (Gill, Commonwealth) equal protection claims cannot stand up to rational basis. The Justice Department urged elevating the considerations of the case to a suspect class, but the Appeals court made clear that they were unwilling to establish that precedent in this case. They also found that doing so was unnecessary:
Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions–not classic rational basis review–that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).
In a move that is reminiscent of the Ninth Circuit Court’s ruling that Prop 8 was unconstitutional, The First Circuit was also careful not to consider claims that they felt were unnecessary, and thus narrowed the basis of the ruling. But in a departure from the Ninth Circuit Court, the first Circuit said that while they found DOMA unconstitutional, they did not rest any part of their ruling on claims of hostility to homosexuality:
In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. …The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity–not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
As is customary, the First Circuit panel stayed its ruling in anticipation of an appeal to the U.S. Supreme Court.
House Approves Amendment Barring Justice Dept From Opposing DOMA
May 10th, 2012
The U.S. House of Representatives voted last night to add an amendment to the Commerce, Justice, Science and Related Agencies Appropriations Act to prohibit the Obama administration from taking any action that could be seen as violating the Defense of Marriage Act. Specifically, the amendment prohibits the Justice Department from spending any money to oppose the Defense of Marriage Act. Sixteen Democrats joined the Republican caucus in approving the measure in a 245-171 vote. Seven Republicans opposed the measure: Reps. Mary Bono Mack (CA), Richard Hanna (NY), Nan Hayworth (NY), Steven LaTourette (OH), Jerry Lewis (CA), Ileana Ros-Lehtinen (FL), and Rep. Lee Terry (NE).
Rep. Tim Huelskamp (R-KS) said he introduced the amendment in response to Vice President Joe Biden’s expression of support for marriage equality on Sunday. “Stating his position is fine, Huelskamp said, “but you tie that together with the issues with the lawsuit in California in which, essentially, the attorney general walked away from DOMA and said, ‘I’m not going to defend that.’”
The amendment was also introduced after President Barack Obama announced his support for same-sex marriage.
The sixteen Democrats supporting the amendment were: John Barrow (GA), Sanford Bishop (GA), Dan Boren (OK), Ben Chandler (KY), Jerry Costello (IL), Mark Critz (PA), Henry Cuellar (TX), Tim Holden (PA), Larry Kissell (NC), Dan Lipinski (IL), Jim Matheson (UT), Mike McIntyre (NC), Collin Peterson (MN), Nick Rahall, (WV), Mike Ross (AR), and Heath Shuler (NC).
Federal Appeals Court Hears Arguments on DOMA’s Constitutionality
April 4th, 2012
“Historic” is the word being tossed around as the First Circuit Court of Appeals hears oral arguments today in Boston on the constitutionality of the Defense of Marriage Act, the first time the question of DOMA’s constitutionality has been brought to the Appeals Court level.
The case before the First Circuit Court is actually the appeals of two cases which were combined at the trial court level, where DOMA was declared unconstitutional. The first case, Gill v. Office of Personnel Management, was brought on behalf of several same-sex married couples who are denied specific benefits which are routinely granted to opposite-sex married couples. The second case, Commonwealth of Massachusetts v US Dept. of Health and Human Services, was brought by the state of Massachusetts which argued that because of DOMA, the state was caught in a bind between discriminating against legally married same-sex couples or forfeiting federal funding for programs and benefits that married couples are otherwise entitled to.
Because oral arguments before the court involved two cases, and because the Obama administration announced that the Justice Department would not defend DOMA under heightened scrutiny, there were actually four sets of lawyers:
- Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto, representing the plaintiffs in the Gill case.
- Massachusetts Attorney General Civil Rights Division chief Maura Healey, representing Massachusetts in the Commonwealth case.
- Paul Clement, representing the House Republican leadership-controlled Bipartisan Legal Advisory Group which picked up the task of defending DOMA when the Justice Department announced that they would no longer do so.
- Acting Assistant Attorney General Stuart Delery, on behalf of the U.S. Justice Department.
Metro Weekly’s Chris Geidner attended the hearing and describes a surprise move from the Justice Department:
In a somewhat surprising move, the Department of Justice went a step further than it has in the past when Acting Assistant Attorney General Stuart Delery told the U.S. Court of Appeals for the First Circuit today that DOJ would not be defending the constitutionality of the 1996 law regardless of the level of scrutiny the court found appropriate for reviewing a law like DOMA that classifies people based on sexual orientation. [Emphasis added]
When the Justice Department made their announcement in 2011, they argued that DOMA should be evaluated under heightened scrutiny, and under that standard, DOMA was indefensible because it discriminates against gay people. Now they are saying it is indefensible regardless of the level of scrutiny the court wishes to apply.
On Clement’s part, he made a rather startling argument before the court:
Although DOJ, the Commonwealth of Massachusetts and GLAD argues that DOMA was motivated by anti-gay sentiment — “animus,” in court lingo — Clement argued that the impact of DOMA was not all bad.
“In some cases,” he said, “it’s a net financial benefit to the same-sex couple; in some, it’s not.”
Is he actually arguing that DOMA, in some cases, is in the best interests of same-sex couples? Because if he is, he’s taking a rather paternalistic stance. The issue is quite simple: that if straight couples have the option of deciding for themselves whether marriage is in their best interests, that same option should be applied to same-sex couples as well. Clement appears to have argued that only Congress can decide that for same-sex couples, while opposite-sex couples are granted the autonomy for making that decision themselves — even if it is to decide to enter a marriage only lasting 55-hours.
Washington Blade’s Chris Johnson, who also attended today’s hearing, added this observation about Clement’s arguments:
Clement offered for many reasons for why DOMA should be upheld — among them was saying the opposite-sex marriages advance governmental interests because they can produce “unplanned offspring” unlike same-sex couples.
…But Delery blasted the notion that procreation is a necessary component for any marriage — whether the union is opposite-sex or same-sex — saying straight couples can marry even if they don’t want and can’t have children.
“On the flip side, there are many children — hundreds of thousands, I think is the best estimate — who are being raised by same-sex parents in this country, and DOMA has the effect of denying those children the stability and protection that many of the federal benefits that we’re talking about in these cases would provide,” Delery said.
Those were just three of the issues argued today that really jumped out at me as significant. Chris Geidner’s write-up along with Chris Johnson’s both are worth reading to get the full measure of today’s oral arguments.
The Daily Agenda for Wednesday, April 4
April 4th, 2012
First Circuit Court of Appeals Hears Oral Arguments in DOMA Challenges: Boston, MA. Two cases will be argued today before a three-judge panel of the First Circuit Court of Appeals. The first case, Gill v. the Office of Personnel Management, was brought by several same-sex couples married in Massachusetts arguing that Section 3 of DOMA, which bars the Federal government from recognizing their marriage, violated their equal protection rights under the US Constitution. That case was combined with a second case, Commonwealth of Massachusetts v. United States Department of Health and Human Services, in which the state of Massachusetts sued the US government alleging that the state was placed in a position of either discriminating against a group of married residents on one hand or losing federal funding for programs in which the federal government dictates who is legally married on the other. On July 8, 2010, Federal District Judge Joseph Tauro ruled in both cases that section three of DOMA was unconstitutional. The Justice department then filed appeals to those decisions, but that was before President Barack Obama determined in 2011 that Section 3 of DOMA was unconstitutional and stopped defending the law in court. The House Republican leadership, with their 3-2 majority on the Bipartisan Legal Advisory Group (BLAG), decided to take up DOMA’s defense instead.
Participating in today’s oral arguments will be BLAG’s attorney, Paul Clement, who will try to defend DOMA’s constitutionality on behalf of Congress. Also participating will be the Justice Department’s Civil Division’s acting chief Stuart Delery, who will support the Justice Department’s finding that DOMA is unconstitutional under heightened scrutiny. Gay & Lesbian Advocates and Defenders (GLAD) Civil Rights Project Director Mary Bonauto will argue on behalf of the Gill v OPM plaintiffs, and Massachusetts Attorney General’s Civil Rights section head Maura Healy will represent the commonwealth in their case. Oral arguments get underway at 10:00 a.m. before a three judge panel consisting of Chief Judge Sandra Lynch (a Clinton appointee), Judge Michael Boudin (appointed by George H.W. Bush) and Judge Juan Torruella (appointed by Ronald Reagan).
TODAY IN HISTORY:
Anita Bryant Endorses Imprisoning Gays For 20 Years: 1978. Newspapers across the country got a bit of a tease from Playboy, which released a few tantalizing tidbits from an interview with anti-gay activist Anita Bryant that would appear in the May 1978 edition. In a small preview released to the wire services, Bryant was quoted as suggesting that sending gays to prison for 20 years “might make them think twice, especially the young ones. Any time you water down the law, it just makes it easier for morality to be tolerated.” She went on: “Why make it easier for them? I think it only helps to condone it and make it easier for kids who wouldn’t be so concerned if it was a misdemeanor, whereas a felony might make them think twice, especially the younger ones.” When asked whether prison life might not be conducive to homosexuality, she answered, “They’ll have plenty of time to think. Just because prisons are corrupt and not doing the right thing in rehabilitation because they don’t have enough emphasis on spiritual emphasis doesn’t mean there should not be a strong punishment for that.”
Anthony Perkins: 1932. Best known for his role as the sexually-ambiguous Norman Bates in the Alfred Hitchcock classic Psycho, Perkins’s own sexuality was the subject of rumors throughout his career. He shared a long-term relationship with fellow 1950s teen idol Tab Hunter (who discussed their time together in his 2005 memoir Tab Hunter Confidential) and another six-year relationship with dancer/choreographer Grover Dale before Perkins finally married Berry Berenson in 1973 in a bid to keep his name out of the scandal sheets. His gay friends though the marriage was bizarre, but Perkins seemed to have made the best of the situation, and by all accounts he was devoted to Berenson and their two children. But whether Perkins remained sexually faithful during the marriage, however, is doubtful. He died on September 12, 1992 from complications of AIDS with his wife by his side, two years after the National Enquirer outed him both as gay and as a person with AIDS. His public acknowledgment of his disease came posthumously in a statement dictated to his sons and released to the public. His private acknowledgement of his sexuality, he took with him to his grave. In a strange twist of fate, his widow died on September 11, 2001, on American Airlines flight 11 when it was hijacked and crashed into the North Tower of the World Trade Center.
If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).
And feel free to consider this your open thread for the day. What’s happening in your world?
House Republican Leaders Appeal DOMA Ruling
February 24th, 2012
As expected, Congressional Republican leaders have appealed Wednesday’s ruling striking down Section 3 of the Defense of Marriage Act as unconstitutional to the Ninth Circuit Court of Appeals. The Bipartisan Legal Advisory Group (BLAG), under the direction of House Speaker John Boehner, stepped in to defend DOMA when the Obama administration’s Justice Department found that DOMA was unconstitutional. Wednesday, U.S. District Court Judge Jeffrey S. White, a George W. Bush appointee, agreed, saying that there is no rational basis for the provision which bars the federal government from granting employment benefits to legally married spouses of gay employees.
Chris Geidner at Metro Weekly notices that the appeal filing includes this statement: “The Democratic Leader and the Democratic Whip decline to support the filing of this notice of appeal.”
Federal Court Strikes Down Section 3 of DOMA
February 22nd, 2012
Chris Geidner at Metro Weekly has the breaking news that Federal District Court Judge Jeffrey S. White found that Section three of the Defense of Marriage Act is unconstitutional. Karen Golinski is suing the Office of Personnel Management for denying her request for equal health insurance benefits for her wife:
In part, U.S. District Court Judge Jeffrey S. White today found that Section 3 of DOMA violates the equal protection rights of Golinski, finding that heightened scrutiny applies — as urged by the DOJ — and noting that it might not even pass rational basis — the lowest — legal scrutiny:
The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.
Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.
This finding exceeds the Justice Department’s determination that DOMA, section 3, which prohibits the federal government from recognizing fully-legal same-sex marriages, requires heightened scrutiny and is unconstitutional at that level. Because of the Justice Department’s finding, the Obama administration has stopped defending Section 3 in court. The Bipartisan Legal Advisory Group (BLAG), led by the Republican leadership in the House of Representatives, is defending DOMA in the case.
Judge White, a Bush administration appointee, cited a 2001 US Supreme Court discrimination case in finding that DOMA unconstitutionally discriminates against same-sex couples.
Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:
Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.
BLAG has the option of appealing the decision to the Ninth Circuit Court of Appeals. Two other similar cases in Massachusetts resulted in DOMA’s Section 3 being declared unconstitutional there. Those cases are now on appeal with the First Circuit Court of Appeals.
One Third of US Senators sponsor repeal of DOMA
December 21st, 2011
Senator Dianne Feinstein is the chief sponsor of Senate Bill 598, which would remove from Federal law the following language:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
And replace the following language in the code:
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.
with this language:
‘Sec. 7. Marriage
‘(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
‘(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.’.
At present, Senator Feinstein has the following 30 co-sponsors. Visually, this looks like the following, with light green representing one US Senator from that state and dark green representing both. Currently there are no Republicans who have signed on as co-sponsors of the bill, but there is reason to hope that some may sign on and more may vote for the bill.
Daniel Akaka [D-HI]
Michael Bennet [D-CO]
Jeff Bingaman [D-NM]
Richard Blumenthal [D-CT]
Barbara Boxer [D-CA]
Sherrod Brown [D-OH]
Maria Cantwell [D-WA]
Benjamin Cardin [D-MD]
Chris Coons [D-DE]
Richard Durbin [D-IL]
Al Franken [D-MN]
Kirsten Gillibrand [D-NY]
Thomas Harkin [D-IA]
Daniel Inouye [D-HI]
John Kerry [D-MA]
Amy Klobuchar [D-MN]
Herbert Kohl [D-WI]
Frank Lautenberg [D-NJ]
Patrick Leahy [D-VT]
Carl Levin [D-MI]
Jeff Merkley [D-OR]
Barbara Mikulski [D-MD]
Patty Murray [D-WA]
Bernard Sanders [I-VT]
Charles Schumer [D-NY]
Jeanne Shaheen [D-NH]
Mark Udall [D-CO]
Tom Udall [D-NM]
Sheldon Whitehouse [D-RI]
Ron Wyden [D-OR]
In addition, Senator Bob Menendez (D-NJ) has announced his intention to join the list.
Judge in Golinski asks uncomfortable questions for those who favor discrimination
December 16th, 2011
Today Justice Jeffrey White heard testimony as to whether the federal Defense of Marriage Act (DOMA) was in violation of the US Constitution when it was applied to deny spousal benefits to Karen Golinski, a legally married federal employee. In advance, White, a George W. Bush appointee, provided a list of questions that he wanted addressed. It can’t have been a happy day for Paul Clement when he saw them.
The list of ten questions began with:
1. The passage of Section 3 of the Defense of Marriage Act (“DOMA”) marks a unique departure from the recognition the federal government historically has afforded to State marital status determinations.
It quickly trotted on to such inquiries as “What is the authority for the position that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?” and “How does BLAG distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?” and “How does BLAG’s argument about the tradition of heterosexual marriage differ from the miscegenation context?”
And surely when he came to number 9 Clementi must have cringed:
9. To the extent the Court decides the issues presented on the motion for summary judgment…
This does not mean that White will rule in Golinski’s favor or that the ruling will apply broadly should he do so. But it does suggest that White has no concerns about the arguments made by Golinski’s counsel but is finding the arguments presented by DOMA’s defense to rely on assumptions that White was not willing to make.
Adding sway to Golincki’s case, the head of the civil division of the Department of Justice showed up to argue in her behalf. This is but the second time that Assistant Attorney General Tony West has personally appeared in court to represent the Government and his appearance signaled the significance with which the Obama Administration has begun to take the issue of marriage equality.
Of course one can never tell how a judge will make their determination. But, at this point, things look encouraging.
Booed Soldier Shares His Reaction
November 21st, 2011
It was unprecedented in the annals of presidential politics: on September 23, an active-duty American soldier stationed on the front lines was loudly booed by audience members with nary an admonishment from any of the GOP presidential candidates on stage, and none of the Commander-In-Chief wannabees offer a word of thanks for his service. Now nearly two months later, Army Capt. Stephen Hill described to the Associated Press his reaction to that shocking display of disrespect:
“When the actual booing occurred, my gut dropped out, because my first inclination was, did I just do something wrong?” he said. “The answer, obviously, wasn’t very supportive of gay people, and there was a lot of fear of how the Army would take the question.”
He did not have to wait long to find out. At breakfast later that morning, the segment was playing on the chow hall television. Hill immediately tracked down his commander, who told him she had no problem with what he’d done but that she would need to run it up the chain of command. She later relayed the response.
“She said, ‘What the military’s most concerned with is that you are OK, because it’s a lot of pressure on you and we want to make sure if there is anything we can do to help,’” he recalled.
Hill also remembered that Santurum’s answer was solely about sex. Hill, who is married, found Santorum’s answer as adding to the insults.
“This is not about sex,” Hill said. “A special privilege is not hiding pictures in my house or God forbid, taking mortar fire again and not knowing if Josh will be recognized. I’m fighting every day to protect everyone’s rights as human beings, and it seems counterintuitive for me to be fighting for those rights and not have them.”
Capt. Hill and his husband, Joshua Snyder, have joined other same-sex military couples in suing the federal government for the same benefits as straight military couples.
What if there were a god named Fred who hated lies?
November 16th, 2011
Now I know that here at BTB we have readers from diverse places and a wide variety of beliefs. Some, like me, have a belief system that includes the divine while others are skeptical or dismissive about claims of supernatural beings that cannot be substantiated. From orthodoxy to atheism to skepticism and uncertainty, BTB accepts us all.
But let’s try a thought experiment. Let’s all suppose that there is one god, and that his name is “Fred”. (Fred either has six arms or two and is either inordinately fond of fried chicken livers or finds chicken repulsive – depending on which Order of Fred you ask. The ascetic monks of Outer Urboo even claim that Fred has tentacles and flies. But none of that is material to our story.)
We also assume that Fred is omniscient and that he has established a code of behavior. And, for sake of our experiment, let’s assume that within that code, Fred highlights ten specific things that humans are forbidden to do. And finally, let’s agree that in this hypothetical situation, that one of the ten forbidden behaviors is “bearing false witness”.
To be clear: often for simplicity’s sake, people talk about deities banning lying. But Fred is very specific. He forbids any instances in which you present yourself to others as a witness about a matter (as one who has information that others lack) and then give testimony about that matter that is false or intended to deceive. That is a really big no-no in Fred’s book.
With me so far?
Okay, now – within that context – consider a hypothetical email message sent out by Fred’s Followers in response to the effort to repeal the Federal Defense of Marriage Act (which prohibits the Federal Government from recognizing same sex marriages). They warn their readers, as FF tracks such things and are better informed, of what the consequences would be of this bill passing. They are, in the words of our deity, “bearing witness” about the bill.
The repercussions are enormous:
- States laws protecting marriage as between “one man, one woman” will become null and void – including the 31 states who have voted on constitutional amendments.
- The military will be thrown into complete chaos and disarray, as Department of Defense leaders try to figure out housing, benefits, and “same-sex spouse” sensitivity training regimens.
- Churches will come under fire from radical homosexual activists. Ministers and churches will be sued for “religious discrimination” for refusing to perform or allow gay “marriages.”
- Public schools will be forced to indoctrinate our children, teaching them that homosexual marriage is both natural and acceptable.
Let’s take a quick look at these claims to see if Fred would approve. The relevant language from S 598 is as follows:
Sec. 7. Marriage
(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
So how do the claims of Fred’s Followers match up to reality? How did FF do?
Claim 1. As we can see, nothing in S 598 addresses state laws at all. Not only are they not made “null and void”, they aren’t even up for consideration.
This bill only would define the federal government’s rules of recognition and further would actually recognize and honor the restrictions on marriage imposed by those 31 states. While a soldier in Alabama might have her marriage recognized on base, it must have been conducted in one of the states in which she could marry and there’s no requirement that the Fred-fearing people of Alabama not point at her and scream “single, single, single brazen hussy of the leeeeesbian variety” if they so choose.
Now it is possible, even likely, that the various state DOMA amendments will be found by the United States Supreme Court to be in violation of the US Constitution. But until such time as the Supreme Court steps in and reminds the states that “any person” does not have an asterisk, states will be free to continue to be as exclusionary and unfair as AFA’s readers wish them to be.
Conclusion: claim 1 has no truth whatsoever.
Claim 2. Currently the Department of Defense leaders are experiencing a small amount of disarray as they try and comply with the provisions of DOMA that prohibit them from treating gay service personnel the same as straight personnel. Like most employers, they would prefer to just have one set of rules that apply to everyone.
But recent efforts to simplify (e.g. applying chaplain marriage structure equally) resulted in outcry from folks like Fred’s Followers and congressional meddling and a lot of back-peddling to please those who do not wish for gay people to be accorded the same rights and privileges as heterosexuals. And Defense officials are still not entirely certain how to apply (or, actually, deny) benefits for gay soldiers. Ironically, rather than throw them into disarray, it would be a tremendous relief for the military if DOMA to no longer intruded into their obsession for procedure and order and equal application of rules.
Conclusion: not only is claim 2 false, the opposite is true.
Claim 3. This claim is deceptive in its wording and deliberately so.
The US Constitution provides churches with the freedom to conduct such rites as they choose and to set whatever parameters they like for refusal. That is not in question. So FF says that churches will be “under fire”. And, indeed, they will. From their own members.
Gay and Lesbian and equality-loving heterosexual Presbyterians will pressure the Presbyterian Church (USA) to allow clergy to conduct same-sex weddings and to establish standard language by which to do so. But that has nothing at all to do with S 598. They are already doing so. In denomination after denomination and congregation after congregation, churches are seeking wisdom and discernment over how same-sex attracted congregants fit into the body of faith and “radical activists” of all inclinations are telling their stories and sharing their insight.
And the idea of gay couples suing churches over “religious discrimination” is so obviously false as to be laughable. The whole point of denominational autonomy – and surely there is no one who does not acknowledge that the First Amendment protects denominational autonomy – is to discriminate between rites, beliefs, and practices. The Church of Fred has no obligation to provide a venue for marriage ceremonies to anyone and the Fredite priests have no obligation to perform them. And nothing in that will change with S 598.
Conclusion: claim 3 has no kernel of truth whatsoever.
Claim 4. This one is similar to Claim 1. Schools and their curriculum are under state and local control; nothing in S 598 will or could force public schools to teach anything at all about marriage – gay, straight, natural, acceptable, or in accordance with the Ancient and Most Holy Broom-Jumping, Hora Dancing, Egg Stomping, Henna Painting, Dowry Gifting Rites of Connubial Bliss established by the Good and Gracious Fred, himself.
Conclusion: not only is claim 4 a flat out lie, it’s a rather obvious one as well.
Fred’s followers may be fools who lack the intellectual capability of distinguishing between an apple and a pineapple. They may be so mind-numbingly stupid, so tragically impeded, or so hopped up on Delphic vapors that they actually believe what they wrote.
And Fred, being gracious, just might look at his followers sadly and wonder, “how did I end up as the god of a bunch of idiots?” Perhaps their simple-mindedness would incline Fred towards mercy. And being fictional, after all, Fred’s Followers aren’t hurting anyone.
But, as I’m sure you guessed, this story isn’t really fiction. And the American Family Association, the real organization who crafted the above email and sent it out to all of those on their email list, is hurting people. And they are not fools. The AFA knew that they were disseminating false witness. Those who receive and respond to an AFA Action Alert may be so divorced from the law and how it works that they could believe that S 598 will result in their pastors being sued or the Military devolving into chaos, but the Wildmon family and their employees are not.
So this raises a most peculiar conundrum.
The American Family Association claims that they believe in a deity. They state that they believe in God and promote virtue by upholding in culture that which is right, true and good. The god they talk about is a holy and righteous god that cannot abide sin. Their god has provided forgiveness but he also demands repentance and change. Their god intends to throw all liars into a lake of eternal punishment for willfully breaking his commandments.
And yet the American Family Association has borne false – blatantly, inarguably, false – witness. Again.
So how can this be? If the God that holds you over the pit of hell, much as one holds a spider, or some loathsome insect over the fire, abhors you, and is dreadfully provoked, then how can you, one of his followers, flagrantly and repeatedly defy a commandment so important to God that it made it into his top ten list?
If Don and Tim Wildmon and the others who pay their bills though anti-gay activism at the American Family Association believe in the god they preach, why then don’t they fall on their knees in fear and trembling and beg their god for mercy? Why don’t they dedicate their remaining days to recanting their lies and healing the damage they have caused?
Because they don’t believe. They couldn’t. And that’s their biggest lie of all.
DOMA Repeal Bill Passes Out Of Senate Committee
November 10th, 2011
The Senate Judiciary Committee passed the Respect for Marriage Act (RMA) this morning on a 10-8 vote after two hours of debate. The RMA would not only repeal the Defense of Marriage Act (DOMA), it would also require the federal government to recognize the marriage of any couple “valid in the state where the marriage was entered into.” This provision would also apply even if the couple lived in a state where the marriage wasn’t recognized.
The Washington Blade reported yesterday that three amendments had been proposed to the bill. But in today’s hearing, ranking minority committee member Sen. Chuck Grassley (R-IA) said, “We know where the votes are,” and declined to offer the amendments.
A similar bill to repeal DOMA has been introduced in the House, but the GOP-controlled chamber is not expected to take up the bill.
Update: Here’s a video of Sen. Al Franken (D-MN) fact-checking Sen. Chuck Grassley (R-IA) on the supposedly unchanging definition of marriage:
The Daily Agenda for Thursday, November 10
November 10th, 2011
Senate Judiciary Committee to Hold Markup for DOMA Repeal: Washington, D.C. The Senate Judiciary Committee will hold an Executive Business Meeting this morning to go over, among other things, Senate Bill 598, known as the Respect for Marriage Act, which would repeal the Defense of Marriage Act. This bill was scheduled to be marked up last week, but Republicans on the panel forced a delay for a week. The Washington Blade has obtained copies of three proposed amendments:
Of the three amendments, only one is germane: a measure that would strike Section 2 of the Respect for Marriage Act. That portion of the bill enables federal benefits to flow to married gay couples even if they live in states that don’t recognize marriage equality. Under the bill as it currently stands, a couple could marry in a state such as New York, where same-sex marriage is legal and still receive federal benefits if they move to a state such as Michigan, which doesn’t recognize same-sex marriage. The other two have no relevance to the Respect for Marriage Act, but still can be offered under Senate rules, which allow non-germane amendments to legislation.
The committee, chaired by Sen. Patrick Leahy (D-VT) will meet at 10:00 a.m. in Hart Senate Office Building, room 216, and will be webcast here. The House version of the Respect for Marriage Act has 128 co-sponsors, but because the House is under Republican control, it is extremely unlikely it will take action on the bill.
Frank Mugisha to Receive the Robert F. Kennedy Human Rights Award: Washington, D.C. Ugandan LGBT advocate Frank Mugisha will be presented the prestigious human rights award in a ceremony at the Kennedy Caucus Room of the Russell Senate Office Building. The award will be presented by Kennedy’s widow, Ethel Kennedy, and Senator John Kerry, Chairman of the Senate Foreign Relations Committee.
United States Conference on AIDS: Chicago, IL. Billed as the largest AIDS-related gathering in the U.S., the conference organized by the National Minority AIDS Council will kick off today, bringing together over 3,000 workers, including case managers, physicians, public health workers, advocates, people living with HIV/AIDS, and policy makers, to build national support networks, exchange the latest information and learn cutting-edge tools to address the challenges of HIV/AIDS. The three day conference begins today at the Sheraton Chicago Hotel and Towers.
Phyllis Lyon: 1924. The Oklahoma native earned a degree in journalism from the University of California at Berkeley in 1946 and worked as a reporter for a California paper before moving to Seattle to work at a magazine in 1950. That’s where she met the love of her life, Del Martin. They became a couple in 1953 when they moved to San Francisco together. “We really only had problems our first year together,” she later told The Washington Post. “Del would leave her shoes in the middle of the room, and I’d throw them out the window.” Del responded “You’d have an argument with me and try to storm out the door. I had to teach you to fight back.” Their life together was all about fighting back. In 1955 Phyllis and Del, along with six other women, formed the Daughters of Bilitis, the first national lesbian organization in the U.S. Phyllis was the first editor of the DOB’s groundbreaking newsletter, The Ladder from 1956 to 1960, when Del took over. Pseudonyms were common then, and Phillis edited The Ladder as “Ann Ferguson” for the first few months, but she dropped it to encourage their readers not to hide. By October 1957, they had 400 subscribers across the country. In 1964, they helped found the Council on Religion and the Homosexual, bringing together national religious leaders and gay and lesbian activists for a national discussion of gay rights. Phyllis was also the first open lesbian to serve on the board of the National Organization for Women in 1973. Phyllis and Del were also active in San Francisco’s Alice B. Toklas Democratic Club.
On February 12, 2004, Phyllis and Del married for the first time when San Francisco mayor Gavin Newsom ordered that marriage licenses be granted to same-sex couples. That marriage lasted until August 12, but not because the couple split up. That was when the California Supreme Court voided several thousand marriage licenses given to same-sex couples. Del and Phyllis were deeply dissapointed. “Del is 83 years old and I am 79,” she said. “After being together for more than 50 years, it is a terrible blow to have the rights and protections of marriage taken away from us. At our age, we do not have the luxury of time.”
But they had the luxury of just enough time. They were married again on June 16, 2008 after the California Supreme Court ruled that prohibiting same-sex marriage was against the state constitution. Del and Phyllis were given the honor of being the first same-sex couple to be married, and they wore the same outfits in which they were first married in 2004. Del passed away two months later, on August 27, 2008.
If you know of something that belongs on the Agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).
As always, please consider this your open thread for the day.
Boehner Triples Outlay For Defending DOMA
October 5th, 2011
Despite an era of massive cost cutting in Congress, U.S. House Speaker John Boehner (R-OH) has tripled the original $500,000 cost cap for the legal defense of the Defense of Marriage Act to $1.5 million:
According to recently approved contract modification dated Sept. 30, House General Counsel Kerry Kircher has agreed to pay Bancroft LLC private attorney Paul Clement a sum not to exceed $750,000 to defend DOMA, but this cap may be raised to $1.5 million under written notice.
“It is further understood and agreed that, effective October 1, 2011, the aforementioned $750,000.00 cap may be raised from time to time up to, but not exceeding, $1.5 million, upon written notice of the General Counsel to the Contractor specifying that the General Counsel is legally liable under this Agreement for a specific amount,” the contract modification states.
Democrats on the Committee of Administration have blasted the increase, and charged that the contracting process lacked “any semblance of transparency.”
Obama Blasts GOP For Failure To “Stand Up For the Men and Women Who Wear The Uniform”
October 2nd, 2011
In remarks before a gathering of the Human Rights Campaign, President Barack Obama blasted Republicans for standing silently on stage while audience members booed a gay American soldier during a GOP debate last week. Six candidates — Former Massachusetts Gov. Mitt Romney, Texas Gov. Rick Perry, Texas Rep. Ron Paul, pizza magnate Herman Cain, Minnesota Rep. Michele Bachmann, and former House Speaker Newt Gingrich — have maintained their silence for more than a week. Obama called them out:
We don’t believe in a small America. We don’t believe in the kind of smallness that says its okay for a stage full of political leaders, one of whom could end up being the President of the United States, being silent when an American soldier is booed. We don’t believe in that. We don’t believe in standing silent when that happens. We don’t believe in them being silent since.
You want to be commander in chief? You can start by standing up for the men and women who wear the uniform of the United States, even when it’s not politically convenient.
We don’t believe in a small America. We believe in a big American, a tolerant America, a just America, an equal America that values the service of every patriot. We believe in an America where we’re all in it together and we see the good in one another. And we live up to a creed that is as old as our founding, “E Pluribus Unum” — out of many, one. And that includes everybody. That’s what we believe. That’s what we’re going to be fighting for. I am confident that’s what the American people believe in. I’m confident because of the changes we’ve achieved these two and a half years, the progress that some folks said was impossible.
Obama recounted his accomplishments since taking office: the passage of the Matthew Shepard Hate Crimes Act, the lifting of the HIV travel ban, the enactment of regulations requiring hospitals to allow gay partners to see and make decisions for their loved ones, and the repeal of “Don’t Ask, Don’t Tell.” He also reiterated his support for repealing the Defense of Marriage Act:
I vowed to keep up the fight against the so-called Defense of Marriage Act. There’s a bill to repeal this discriminatory law in Congress, and I want to see that passed. But until we reach that day, my administration is no longer defending DOMA in the courts. I believe the law runs counter to the Constitution, and it’s time for it to end once and for all. It should join “don’t ask, don’t tell” in the history books.
Effort to Repeal DOMA Picks Up Republican Support
September 23rd, 2011
Rep. Ileana Ros-Lehtinen (R-FL) has signed on as cosponsor of the Respect for Marriage Act, a proposed bill that would repeal the Defense of Marriage Act. Ros-Lehtinen’s consponsorship now give the RMA bipartisan support:
“I voted against the constitutional amendment defining marriage [in 2006] so I’m pleased to cosponsor the repeal of DOMA and work with my colleagues on marriage equality,” said Ros-Lehtinen, who represents Florida’s 18th district, which includes South Beach, most sections of Miami, and the Florida Keys.
Though the south Florida representative has a long history of voting in favor of LGBT rights, her decision to join 124 House Democrats in cosponsoring the Respect for Marriage Act nevertheless is a bold move, given the Republican House leadership’s defense of DOMA in multiple legal challenges after the Obama administration announced in February it would no longer defend the law.
Rep. Ros-Lehtinen is vice-chair of the House LGBT Equality Caucus, where she has been supportive of anti-discrimination measures, equal access to adoption and foster parenting, and changes to the tax code to level the playing field for employer-sponsored health care.
New York’s new role
July 26th, 2011
States have rights. Constitutionally, our nation has divided its powers between issues of national concern (such as defense) and issues of state autonomy (such as licensing of professionals). Family law, including the criteria for marriage, has been traditionally considered to be the purview of the state while the role of the federal government has been primarily limited in this area to interstate conflicts or civil rights protections.
But the Defense of Marriage Act (DOMA) is an exception. It presumes, in paragraph 3, that the federal government holds veto power over marriage and can – for any matter that impacts any federal program – replace the state’s criteria with its own. If the marriage criteria in Vermont doesn’t meet the approval of the Senator from Alabama or the Congressman from Mississippi, then by securing a bare majority of fellow legislators they can dictate to Vermont which of its citizens can be considered married for Social Security, taxation, and health care, and which are deemed by Alabama and Mississippi to be unworthy.
This encroachment into the territory of the states was likely in violation of the US Constitution from the start. But that didn’t really matter for so long as states were limiting marriage to opposite sex couples. Courts are not receptive to abstract victims or potential loss of theoretical rights; to present your case, you need to be an aggrieved party.
And when New York’s legislature enacted marriage equality, it became an aggrieved party. Having authorized same-sex marriages, the state not only assumed the burden of protecting these marriages, but became itself a victim of federal infringement through DOMA3, and assumed the burden of protecting itself.
Actually, New York is a bit unusual in that the state recognized – though through legal interpretation rather than legislation or judicial determination – out-of-state same-sex marriages prior to their vote. So there has been, for some time, a theoretical right (though perhaps not obligation) to protect such couples as were abiding in the state but married elsewhere. But the vote removed any ambiguity; marriage equality is now the public policy and interest of the state.
And so, New York State Attorney General Eric T. Schneiderman has begun to defend the state’s interests. In an amicus brief (pfd) filed in the case of Windsor v. United States, in which a widow was denied tax provisions granted to heterosexual widows, he said:
By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.
Schneiderman’s also objects to the discrimination of New Yorkers on the basis of sexual orientation and sex, and those objections are important. That is an obligation of a state and the brief is valuable in that matter. But Windsor’s lawyers can defend her interests and do so competently.
Where Schneiderman’s argument is invaluable is where it is unique, it’s defense of its own interests.
But DOMA departs from the tradition of federal respect for the States’ definition of marriage, flatly rejecting the definition of marriage in New York and five other States and thereby elevating the choices of some States above those made by other States. In doing so, DOMA threatens “the constitutional equality of the states [that] is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyne v. Smith, 221 U.S. 559, 580 (1911).
As Schneiderman implies, some State’s criteria for marriage is being applied, and it isn’t New York’s. To elevate Alabama’s laws to a national status and impose them on New York is precisely the sort of concern that consumed the constitutional convention and the US Constitution was written specifically to negotiate to what extent the separate autonomous states would act as one. Even individual rights were an afterthought.
From that time forward, Congress could not grant itself authority over matters belonging to the states. These are matters of the states alone, and the role of the federal government, congressional or judicial, has been interstate disputes and protecting the rights of the individual against the state. But Congress overstepped its bounds, and New York has joined that small club of states who have a cause to complain.
This position echoes and reinforces the position taken by Martha Coakley, the Attorney General for the Commonwealth of Massachusetts, in Commonweath v. HHS. Her lawsuit also seeks to defend the rights of Massachusetts to define the criteria for marriage for its citizens.
Politically, this issue is an area in which our opponents are awkward and in conflict. Long loud advocates for states’ rights and federalism and smaller centralized government, Republicans are uncomfortable talking about DOMA and its provisions. It is quite one thing to deny equality to gay people but the idea of championing the usurpation of a state right by Washington threatens not only party rhetoric, but a core principle which many Republicans hold dear.
Which is perhaps one reason why you don’t hear much from Congress or from party leadership in defense of DOMA. The presidential candidates, especially those who seem to be counting on the presumed stupidity of their base, try to simultaneously appeal to anti-gay prejudice and states right advocates by babbling nonsense about “respecting the decisions of the states” and also “supporting a constitutional amendment”.
But outside of the social-issue focused religious conservatives, you don’t hear many people defending the merits of DOMA. Even John Boehner, who has taken up the task of defending the law, talks more in terms of letting the courts rather than the President decide the law’s constitutionality and speaks only in the abstract about the nature of the law or defense of its merits. And even Texas Governor Rick Perry, a strong opponent to gay rights in Texas, surprised some conservatives with his take: (AP)
“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, Colo. “That is their call. If you believe in the 10th Amendment, stay out of their business.”
Ultimately, there need be (and will be) a Supreme Court decision that finds that discrimination on the basis of sexual orientation by the federal, state, and other government is in conflict with the US Constitution. But now that more than ten percent of the nation’s citizens live with conflicting state and federal marriage criteria, it may be the violation of the Tenth Amendment upon which DOMA is decided.