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Posts for January, 2013

Boehner’s DOMA Pricetag Reaches $3 Million

Jim Burroway

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

Jim Burroway

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.

DOMA gets a funding boost

Timothy Kincaid

December 14th, 2012

As I have said before, I think that House Speaker Boehner’s defense of DOMA is not inappropriate. The law was passed through legal process and the members of the House at least nominally support the law and thus should be entitled to defend a law that the Executive branch refuses to defend, should they wish to do so. Even one that is so clearly in violation of the Constitution.

But what amuses me about the defense that Speaker Boehner is conducting is that it is, at best, a hangdog averted eyed mumbling defense. There is no “defending the family” or “protecting the sanctity of marriage” here. In the rare rare instance that DOMA’s legal defense gets a comment, it’s about “enforcing the law” or stopping the President from making unilateral decisions about which of Congress’ laws to uphold.

I agree. We don’t want Presidents just ignoring the law. We have checks and balances.

On the other hand, the Justice Department was also correct to find the law indefensible and unconstitutional. Nor do I fault the Senate for refusing to participate in the defense, as it was clearly not the will of that body.

This whole process has been, to me, an illustration of representative democracy at its best, respecting the roles that each other holds.

But it is funny to watch.

I might be less amused if we were losing the argument. Had virtually every DOMA case not gone our way, I be less sanguine about the House’s role.

But I have found it to be a regular reminder that we are not only winning the legal struggle, but the public argument and even the political one. Each victory has triumphal declarations in the press from lawyers and advocates for equality and an echoing silence from Boehner or other Republican leadership.

And now we have one more anecdote to illustrate the extent to which social and political support for DOMA has evaporated. (Rollcall)

House Republicans have quietly raised the value of a contract with a private law firm that is handling the chamber’s Supreme Court defense of a 1996 federal law that defines marriage as the union between a man and a woman.

House Administration Chairman Dan Lungren, R-Calif., signed off in September on a $500,000 increase in the maximum value of the contract with the firm, Washington-based Bancroft. Republicans have raised the cap of the contract twice: first on Sept. 29, 2011, from its original maximum of $500,000 to $1.5 million, and again on Sept. 28 to its new maximum of $2 million.

House Minority Leader Pelosi has conjured up some indignation over the raise but she must have been chuckling as she did so. Two million dollars for a multi-case, multi-state, multi-year defense is chump change, a piffle. The Justice Department budget is tens of billions of dollars per year.

And you have to laugh that a notion which was integral to a presidential campaign less than a decade ago, a bill that passed with overwhelming bipartisan support just two decades past, is now defended in secrecy and silence.

: I prepared this on my phone and failed to include the link. It is now included above. Also, if anyone failed to make the connection, “have quietly raised” means that they didn’t inform the Democratic leadership.

A profile on Edie Windsor

Timothy Kincaid

December 13th, 2012

Perhaps the best profile I’ve seen to date on the plaintiff in the upcoming Supreme Court challenge comes from USAToday:

“People asked,’What could be different? You’ve lived together for over 40 years – what could be different about marriage?’” Windsor said. “And it turned out that marriage could be different.”

Do read it.

Supreme Court to Hear Windsor Challenge to DOMA

Jim Burroway

December 7th, 2012

The Supreme Court announced that it has agreed to hear  U.S. v Windsor which challenges the constitutionality of Section 3 of the Defense of Marriage Act. The American Civil Liberties Union brought the case on behalf of Edith “Edie” Windsor, who was billed $363,000 in federal estate taxes after her wife died in 2009. The New York couple had married in Canada in 2007, and their marriage was recognized in the state of New York.

According to this afternoon’s Order List that was issued by the Supreme Court (PDF: 48KB/2 pages):


The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

The Bipartisan Legal Advisory Group (BLAG) took over the active defense of DOMA after the Justice Department announced that they did not believe that DOMA could survive a constitutional challenge under heightened scrutiny, the standard by which the Department argued that DOMA should be judged. Both the Federal District Court judge and the Second Circuit Court Appeals agreed with the Justice Department on both accounts: that DOMA should be examined under heightened scrutiny, and that under that level of scrutiny DOMA fails constitutional muster by violating the Equal Protection clause under the Fifth Amendment.

The added question about BLAG’s standing in the case is something of a surprise. As with the Prop 8 case — Timothy Kincaid has more on that here – the court has given itself an escape hatch to rule on standing without having to rule on the merits. As Lyle Denniston at SCOTUSblog explains:

It is obvious now why the Court took as much time as it did: the selection process must have been rather challenging, and the compositon of the final orders equally so. The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues.

The court is expected to hear arguments sometime in March, with a final decision in June.

Supreme Court Silent On Marriage Cases (Updated)

Jim Burroway

December 3rd, 2012

The U.S. Supreme Court issued its Orders this morning, with none of the marriage-related cases making the list. This likely means that at least some of those cases will be scheduled for another Conference on Friday morning. It is not unusual for the Court to require several Conferences before deciding whether to take a case. The delay for some of the cases — the Prop 8 appeal could be one candidate — could also mean that the court has denied certiorari for one or more of the cases and is awaiting a dissent from one of the justices.

Update:  Hollingsworth v. Perry (the Prop 8 case), Windsor v US, US vs Windsor, BLAG v Gill, HHS v Massachusetts, OPM v Golinskey, Pedersen v OPM, OPM v Pedersen, (the DOMA cases) and Brewer v Diaz (the Arizona domestic partnership benefits case) have all been moved to the December 7 conference according to their respective docket pages. (Note: Some of the DOMA cases have two dockets because representatives from both sides have appealed to the Supreme Court.) Chris Geidner says that if they don’t make up their minds on December 7, the next scheduled Conference is January 4.

Update: Lambda Legal’s Jon W. Davidson explains the complexity facing the Supreme Court, with each case bringing with it its own unique set of arguments and prcedural questions:

Justice Kagan needs to decide whether to recuse herself from GLAD’s Gill v. OPM case. The ACLU’s Windsor v. United States case involves the additional wrinkle of how New York treats marriages entered in Canada. Lambda Legal’s Golinski v. OPM case, GLAD’s Pedersen v. OPM case, and Windsor, all came to the Supreme Court in an unusual way—with requests for review having been filed before decisions from the intermediate appellate courts were issued. And there have been questions raised about the right of various parties to ask for Supreme Court review because of who the party asking is or because that party won below.

The Supreme Court has to decide not only which challenge to DOMA to hear, but also whether to hear the Perry or Diaz cases now, or wait until after a DOMA case is decided. Although the questions in these two cases are different from the DOMA challenges, a decision in a DOMA case that laws that discriminate based on sexual orientation should be given heightened scrutiny by the courts and presumed unconstitutional could make the Perry and Diaz cases easier to decide, and the Court might choose to hold one or both of those cases for that reason. If Perry is to be considered now, the justices may direct the parties to brief only the narrow ground decided by the Ninth Circuit that involves the unusual circumstances of California’s marriage ban or broader grounds as well, in addition to the question of whether or not the proponents of Prop 8 have the right to appeal. In Diaz, the Court needs to consider whether to get involved at this point (wading in on whether a preliminary injunction was properly issued keeping insurance coverage in place while the case proceeds), when the case is not yet fully resolved at the trial court. 

“The Most Significant Cases These 9 Justice Have Ever Considered, And Probably Will Ever Decide”

Jim Burroway

November 30th, 2012

That’s according to SCOTUSblog’s publisher Tom Goldstein:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

While the cases are historic, the justices are being called upon to judge them today:

Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now.

You’ve got to read the whole thing. He’s right: this is history before our eyes, whether it winds up being Dred Scott or Loving v. Virginia.

SCOTUS deliberates

Timothy Kincaid

November 30th, 2012

Today the Supreme Court of the United States will meet and discuss a number of cases of importance to our community. The two highest profile cases are California’s Proposition 8 (currently called Hollingsworth v. Perry), and the collective challenges to the Third Clause of the Defense of Marriage Act.

Today they will decide whether to hear challenges in those cases or to let them stand. For a case to be heard, four justices must agree that they wish to deliberate the appeal. Their decisions will be announced Monday.

It’s all guesswork at this time, but my prediction (a common one) is that the judges will refuse to hear the appeal to the overturn of Proosition 8, agreeing with the Ninth Circuit Court of Appeals that once a right has been granted to citizens, it then cannot be taken away from one group of people based on dislike or disapproval, thus returning marriage equality to California. Thus the Court can, for now, delay a decision on the larger question about the constitutionality of anti-gay marriage bans.

Should they decide to hear Perry, it may mean that the court is prepared to decide whether heterosexual and homosexual citizens have equal standing under the law.

As for DOMA3, that is clearly unconstitutional. It is almost certain to get a writ of certiorari. The cases will probably be clumped, but common wisdom suggests that the Edie Windsor case will be the vehicle through which the challenge is argued. On the face of it “gay couples should pay higher taxes than straight couples” is and argument that does not sit comfortably with pro-gay liberals or anti-tax conservatives. Also going against DOMA3 is that it is a federal usurpation of an area of law that has traditionally been left to the states.

Of course, there is a chance that the court will not even hear DOMA3 but will simply agree that this is an unconstitutional law and let it be stricken next week. Monday will be exciting no matter the decisions made today.

The Daily Agenda for Friday, November 30

Jim Burroway

November 30th, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Calendar shift for DOMA and Prop 8

Timothy Kincaid

November 13th, 2012

The Supreme Court has announced a shift in their calendar. They were scheduled to meet on November 20 to decide whether to hear the challenges to Proposition 8 and the Defense of Marriage Act. Now they will conference on Friday, November 30 and likely announce their decision on Monday, December 3.

Second Appeals Upholds Lower Court Decision Striking Down DOMA’s Section 3

Jim Burroway

October 18th, 2012

The Second Court of Appeals in Manhattan has affirmed a lower court’s decision (PDF: 199KB/83 pages) which held that Section 3 of the Defense of Marriage Act is unconstitutional. The case, Windsor v. US. was brought by Edie Windsor, who is being forced to pay an inheritance tax of $363,053 after her legally married wife passed away, a tax that she would not have to pay if she had been married to a man. Last June, Federal District Judge Barbara S. Jones ruled that the tax was unconstitutional when she granted a motion for summary judgment last June.

The Second Court of Appeals’ ruling today is important for two reasons: First, the court find that heightened scrutiny is justified in evaluating DOMA:

Instead, we conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

According to the ACLU which brought the case on behalf of Edie Windsor, this is the first federal appeals court ruling to hold that government discrimination against gay people deserves heightened scrutiny. This means that the government must demonstrate that the law serves an important governmental interest in order to justify such discrimination. The bottom line for the court is this:

DOMA’s classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

The court’s ruling was 2-1 (the dissenter was Clinton-appointee Judge Chester Straub), and the second reason this ruling is so important is that Chief Judge Dennis Jacobs wrote the majority opinion. Judge Jacobs is a very conservative judge and a favorite of the Federalist Society. As ThinkProgress notes:

He joined a court decision effectively declaring corporations immune to international human rights law — even when they “trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy.” And he once gave a speech to the conservative Federalist Society decrying the “anti-social effects” of attorneys providing free legal services to the less fortunate.

This is the second Appeals court ruling striking down Section 3 of DOMA. The First Court of Appeals in Boston also “ruled last May against DOMA in two cases involving same-sex couples in Massachusetts. The U.S. Supreme Court may elect to consider all three of these cases sometime after the November election.

No Supreme Court Action on Prop 8, DOMA Cases; NOM’s Finance Disclosure Appeal Denied (Again)

Jim Burroway

October 1st, 2012

The orders page is out for today, with no mention of the Prop 8 case (Hollingsworth v. Perry) or the Defense of Marriage Act Challenge (Windsor v. US). Which means that the court has neither denied nor granted cert to review the cases. There is increasing speculation that the court may not take action on these cases until November when at least three more cases challenging DOMA will be available for review by the Justices.

There are two other LGBT related cases before the court. Diaz v. Brewer, challenging Arizona Gov. Jan Brewer’s attempt to withdraw domestic partner benefits from state employees. The court has taken no action on that case yet

But in National Organization for Marriage v. McKee, in which NOM is again trying to get the Supreme Court’s attention in its efforts to circumvent Maine’s finance disclosure laws, the supreme court denied NOM’s request for certiorari. The Supreme Court refused to hear an earlier similar challenge from NOM in February.


Supreme Court Declines Prop 8, DOMA Cases For Now

Jim Burroway

September 25th, 2012

The U.S. Supreme Court has issued its Orders List (PDF: 136KB/10 pages) following yesterday’s conference session in which it was scheduled to consider whether to hear four LGBT-related cases. Today’s Order list indicates that the Supreme Court has agreed to accept six pending case, but the appeal of Hollingsworth v. Perry — the new name for Perry v. Brown, which itself was previously Perry v. Schwarzenegger, challenging the constitutionality of California’s Proposition 8 — was not on the list.

It’s not clear yet though that this means that the Prop 8 case was rejected by the court. We won’t learn that until next Monday, when the Supreme Court will issue a list of cases it has decided not to hear this term. If Hollingsworth v. Perry is on that list, then the Ninth Circuit Court of Appeals’ decision striking down Proposition 8 as unconstitutional will stand and California’s same-sex couples will have their marriage rights restored. But if Hollingsworth v. Perry is not on that list, then it means that the Supreme Court is still weighing whether to accept the case. It takes four justices to agree on hearing a case before it is accepted by the court.

The court also held off accepting the appeal of Windsor v. USA, which challenges the constitutionality of Section 3 of the Defense of Marriage Act. This case was brought by the American Civil Liberties Union on behal of Edie Windsor, who is required to pay $363,000 in federal estate taxes following the death of her legally-wedded wife in 2007. If she had been in an opposite-sex marriage, her estate tax bill would have been zero. Four other DOMA challenges are making their way through the Appeals courts, and the U.S. Department of Justice has asked the Supreme Court to hear three of those cases along with Windsor for a more comprehensive look at DOMA’s constitutionality.

The court has also, so far, declined to accept two other LGBT-related cases. In Diaz v. Brewer, the Ninth Circuit Court of Appeals decided that Arizona’s Republican Gov. Jan Brewer cannot withdraw domestic parner benefits from state employees without violating the Constitution’s Equal Protection clause. And in National Organization for Marriage v. McKee, NOM is again trying to get the Supreme Court’s attention in its efforts to circumvent Maine’s finance disclosure laws. The Supreme Court refused to hear an earlier challenge from NOM in February.

$325K gift to Minnesota’s marriage efforts

Timothy Kincaid

August 7th, 2012

From Pioneer Press:

A Michigan philanthropist has donated $325,000 to a group opposing a proposed constitutional ban on gay marriage in Minnesota.

Jon Stryker of Kalamazoo, Mich., gave the money to Freedom to Marry Minnesota’s political action committee on Tuesday, Aug. 7. according to state campaign finance records.

The numbers are starting to get big. I think that reflects an awareness that this time, we have a good chance at success.

DOMA3 ruled unconstitutional in Pedersen et al v. Office of Personnel Management

Timothy Kincaid

July 31st, 2012

Oh yes. Another one of those “liberal militant activist judges” has “ruled from the bench” and struck down DOMA3. Again. This particular “liberal militant activist judge” is a George W. Bush appointee and happens to be a black Republican who is active in her church. Again.

The ruling by Judge Vanessa L. Bryant, an appointee of President George W. Bush, stems from the lawsuit Pedersen et al v. Office of Personnel Management et al, filed by Gay & Lesbian Advocates & Defenders (GLAD) in November 2010 in the Federal District Court in Connecticut.

“Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition,” Judge Bryant wrote, “thereby resulting in an inconsistent distribution of federal marriage benefits as all marriages authorized by certain states will receive recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits.”

Poor National Organization for Marriage. What slurs will they have for Ms. Bryant? How can they spin her as out of touch or a radical? It’s enough to make a NOMer want to eat a quart of ice cream. Or two.

Democratic Platform To Include Support for Marriage Equality

Jim Burroway

July 30th, 2012

Outgoing Rep. Barney Frank (D-MA), who sits on a Democratic National Committee 15-member Platform Drafting Committee, told The Washington Blade that the committee has unanimously adopted a plank endorsing marriage equality:

“I was part of a unanimous decision to include it,” Frank said. “There was a unanimous decision in the drafting committee to include it in the platform, which I supported, but everybody was for it.”

Frank emphasized that support for marriage equality is a position that has been established for the Democratic Party, from the president, who endorsed marriage equality in May, to House Democratic lawmakers who voted to reject an amendment reaffirming the Defense of Marriage Act earlier this month.

Another staffer reportedly confirmed the development and added that the draft platform also rejects the Defense of Marriage Act and supports the Employment Non-Discrimination Act. The final draft will go before the full Platform Commitee from August 10 to 12 where it may undergo further revision.

The Federal Government already does recognize your marriage in Los Angeles

Timothy Kincaid

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

Jim Burroway

June 7th, 2012

So says House Minority Leader Rep. Nancy Pelosi:

“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

Timothy Kincaid

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.

As in “Plaintiff’s motion for summary judgment is granted“.

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

Timothy Kincaid

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.

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