Box Turtle Bulletin

Calendar shift for DOMA and Prop 8

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

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)

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

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

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

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

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

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

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

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

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.

en·co·mi·um
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

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

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

“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

TODAY’S AGENDA:
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).

Celebrations This Weekend: Spring Diversity, Eureka Springs, AK; Mr. Gay World, Johannesburg, South Africa; White Party, Palm Springs CA

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.”

TODAY’S BIRTHDAY:
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?