Box Turtle Bulletin

Olson asks for Prop 8 stay to be lifted – references Obama’s DOMA decision

Ted Olson has filed a motion that the Ninth Circuit Court of Appeals lift the stay on Judge Walker’s decision overturning Proposition 8.

Olson notes that the Ninth Circuit indicated a desire to expedite the case but that the California Supreme Court’s timetable for addressing the issue of standing for the Proponents delays the case by at least nine months and thus greatly harms gay Californians.

On February 16, 2011, the Supreme Court of California granted the request for certification but set a schedule for briefing and argument that will permit the case to be heard “as early as September, 2011,” meaning that this case will be extended from the December argument date in this Court for at least nine additional months, and per- haps longer, just for oral argument, and perhaps up to three additional months for a decision from the California Supreme Court, after which the case would presumably return to this Court for yet further deliberations.

He further notes that the Administration’s new position on the level of scrutiny to be assigned to anti-gay discrimination is a game-changer.

Recent events have confirmed that, even if they could establish standing to appeal, proponents would not have a likelihood of success on the merits of plaintiffs’ constitutional challenge to Proposition 8. Today, the Attorney General of the United States announced that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny” and that “Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.” Attorney General Letter at 5. The President has therefore instructed the Department of Justice “not to defend the statute.”

The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest. Indeed, proponents have made no serious attempt to defend Proposition 8 under that exacting standard.

Even though the federal government is not a party to this case, today’s decision surely carries a great deal of weight with the justices. They will not likely wish to measure the merits of Proposition 8 on a rational basis only to have the CALPERS case appear before them with the defendant being an administration that is on record as supporting enhanced scrutiny.

Breaking – Justice Dept. drops defense of DOMA

From AP

The Obama administration says it will no longer defend the constitutionality of a federal law that bans recognition of same-sex marriage.

In a statement Wednesday, Attorney General Eric Holder says President Barack Obama has concluded that the administration can no longer defend the federal law that defines marriage as only between a man and a woman.

It’s a bit early, but here is my assessment: [NOTE: this is an early assessment and I’ll likely provide a revised assessment at more information appears.]

In July 2010, Federal Court Judge Tauro found that the Defense of Marriage Act (DOMA) violated the US Constitution in two ways. 1) Congress cannot usurp the rights of states to define marriage for their citizens (the Commonwealth case) and 2) The federal government cannot treat gay married individuals differently from straight married individuals (the Gill case). It appears that the DOJ will now drop its appeal of Tauro’s decision.

This would immediately impact the First Federal Court District (Maine, Massachusetts, Puerto Rico, New Hampshire, Rhode Island) and would mean that same-sex marriages in Massachusetts and New Hampshire would be given full federal recognition. But by accepting the court’s determination that these provisions of DOMA are unconstitutional, the Obama Administration is signaling either that the federal government will immediately recognize all state’s same-sex marriages or that it will not oppose suits that seek such recognition in other court districts (such as the case already progressing in California).

This has an immense effect on those couples. This provides for equal federal taxation, spousal recognition for immigration (congratulations Tim and Junior), social security, and many many other rights and obligations. And perhaps as importantly, it removes the last barrier to “really married” that set same-sex couples apart.

But this also changes the political playing field tremendously.

Supporters of marriage equality have been given a powerful new message. It is now no longer a matter of nomenclature where states grant all the rights of marriage but not the name.

The federal government has no provision by which to recognize civil unions or domestic partnerships. So “protecting marriage” by reserving that title for heterosexuals now means denying gay citizens access to federal rights. This is, almost certainly, to tip the scales on the Perry v. Schwarzenegger case. The Proponents – assuming they are granted standing – are now required to argue that the state has a rational basis for granting all state marriage rights and denying all federal marriage rights that can meet heightened scrutiny. That is unlikely to be an easy task.

Further, this will impact the decisions of politicians who want to straddle the fence and make both sides happy. They can no longer say, “well I support your rights” when they are blocking access to social security or other federal benefits.

And this change puts anti-gay Republicans in a difficult position. The provisions of DOMA that allow Alabama to ignore Iowa’s marriages were not challenged. And they can hardly call for a Constitutional Amendment to disallow the citizens or representatives of a state to determine their own laws and still pretend to believe in local control or federalism. They can rant about Obama “usurping Congress’ role,” but they run the risk of alienating part of their own base if they insist that they should dictate to states what their laws should be.

This is a very significant day.

Justice Dept. Drops Defense of DOMA Lawsuits

The Justice Department today announced that they will no longer defend the so-called “Defense of Marriage Act” in two lawsuits that had recently been filed in Federal District Court challenging the law. 

In a letter sent to House speaker John Boehner, Attorney General Eric Holder wrote that Section 3 of the statute which bars the federal government from recognizing legal marriages of same-sex couples is a violation of the equal protection clause of the Fifth Amendment. Holder wrote that in response the the lawsuit which had been filed recently (Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.)). These lawsuits challenge whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny, which represents a new type of challenge:

Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.   As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.  

The administration and justice department determined that heightened scrutiny is appropriate for sexual orientation, citing three factors. The first is an acknowledgement that LGBT people have faced a history of discrimination, a position that is shared not just by LGBT advocates, but also by anti-gay activists who have defended the very nature of discrimination against LGBT people in the past. The second factor is a growing consensus that sexual orientation is immutable by outside factors for most people. But the third factor I found more interesting: it is based on historical and legal precedent:

…the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.”   Cleburne, 473 U.S. at 445.   And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.”   Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).  

Heightened scrutiny trumps “rational basis” in a very key way:

…under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review.   Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.   The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.   See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).  

The Justice Department will remain a party to the case, but will inform the court that heightened scrutiny is the appropriate standard for those cases. But it appears that Congress, if it so chooses, can intervene. “Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.” But as to the DOJ’s participation in this and other cases before the Federal Court:

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

Other pending DOMA cases include Gill v OPM and Commonwealth v HHS.

Click here to read the full letter from Attorney General Holder to House Speaker John Boehner

A quiet little very important victory

A little over a week ago our community gained a significant step forward in our quest for marriage equality, and few noted it. The briefs filed in the challenge to DOMA in Massachusetts caught attention, but there is also a DOMA challenge in California. (Chronicle)

In a victory for gay rights advocates, a federal judge has ruled that state employees in California can sue for discrimination over the federal government’s exclusion of their same-sex spouses from a long-term health care program.

U.S. District Judge Claudia Wilken of Oakland denied an Obama administration request to dismiss the suit Tuesday and signaled that she is likely to overturn provisions of the 1996 Defense of Marriage Act, which denies federal benefits to same-sex couples.

Wilken has rejected, in advance, the notions usually put forward by anti-gay activists.

She also rejected arguments that the law’s sponsors put forth in 1996, that the legislation was necessary to promote procreation and preserve heterosexual marriage.

“Marriage has never been contingent on having children,” Wilken said, and denying federal benefits to same-sex couples “does not encourage heterosexual marriage.”

Wilken has not indicated whether she will allow her suit to cover domestic partners as well as spouses. If she does not, then this could have a significant impact on the Perry v. Schwarzenegger case. It would create a very significant difference between domestic partnerships and marriages (the possibility of federal recognition) and could torpedo the opposition.

The DOJ’s buddies – Part I

There is an old saying that you are known by the company you keep. So the Obama Administration’s Department of Justice must be mortified by who has filed amicus briefs in support of their defense of the federal Defense of Marriage Act.

In July, 2010, First Circuit Federal Court Judge Joseph Tauro ruled that the federal Defense of Marriage Act violated the constitutional rights of states to define marriage and of the rights of same-sex couples to have their legal marriages recognized. This ruling did not touch on rights outside of Massachusetts.

The Department of Justice appealed that decision and are arguing for the constitutionality of Congress to deny rights based on sexual orientation. They are joined by a Who’s Who of anti-gay activists such as National Organization for Marriage, NARTH and the Eagle Forum.

Considering that the administration officially wishes to repeal DOMA – or at least that portion found unconstitutional – the decision to defend DOMA is one of legal principle (though I’m not convinced of its necessity) that then of ideology. So, sensing that no one from the DOJ is likely to stand on the table and scream, “they’re filthy sinners full of perversion and disease who are defying God and should be punished,” they have plenty of friends to make that point for them.

GLAD, who is arguing the Gill case on the side of equality, had collected these amicus briefs on their website for your perusal and delight. But, on the off chance that you may not find defense of discrimination and heterosexual superiority to be delightful – or that you may not wish to lose your lunch – I’ll give you a synopsis and save you the effort.

The National Organization for Marriage was the first out of the gate. In an argument that surely would have impressed George Orwell, they declare that allowing the states to define marriage – as they have always done – would be a violation of the Tenth Amendment.

Whatever the origin of the misunderstanding of the scope of the Tenth Amendment, the court below turned the Tenth Amendment on its head. Rather than protecting against federal usurpation of powers reserved to the states, the ruling below would allow each state to impose its own definition of marriage on the federal government in a sort of reverse Supremacy Clause.

Well, I’ll say that at least it is a novel argument.

They ramble a bit about censuses and other matters under federal definition, but basically they call for a newspeak approach to federalism whereby it is best achieved by centralized federal control. Listing all of the ways in which the federal government violates the rights of same-sex couples, they present this as evidence of the government’s right to do so. They rant about bigamy and Think of the Children. This was not their best effort.

The certified hate group, Family Research Council, was up next. Nothing new or interesting here, just the same ol’ “no strict scrutiny required” and “them homos in’t got no rights”. But I’ll give Tony and crew props for perhaps the single most meaningless sentence ever entered into public record:

And no court has ever held that marriage, traditionally understood, extends to same-sex couples. [emphasis in original]

George I. Goverman, “a citizen and resident of Massachusetts and a member of the bar of the Commonwealth since 1970”, chimed in to bring up Baker v. Nelson. Perhaps he intended to file his amicus with Perry, but got confused.

He also has a unique presentation style; his argument is in Times New Roman but for case references he appears to have selected an Arial italics font. They are also different font size and don’t quite line up, leaving a rather jarring effect.

But having read countless “procreative activity” amici during Perry, this peculiar presentation was not quite enough to keep me interested. I was, however, amused that he appealed to George Orwell at his conclusion. I guess he didn’t read NOM’s paper.

Judge Roy Moore (of Ten Commandments fame) was here with his Foundation for Moral Law to “defend the unalienable right to acknowledge God as the moral foundation of our laws.”

After he informed the court that “the views of the American people as a whole from the beginning of American history through the present, have held that homosexual conduct has always been and continues to be immoral and should not be protected or sanctioned by law,” I assume that the judge will just toss this one on the pile marked “raging loons.” It seems that Moore hasn’t read a poll or opened a newspaper in the past decade or so.

But I hope the court does read Moore’s rantings. For this paragraph, if for no other:

From Biblical law and other ancient law, through English and American common law and organic law, to recent times, homosexual conduct has been abhorred and opposed; the idea of a “marriage” based on such conduct never even entered the legal mind until very recent times. Congress’s passage of the federal definition of marriage in DOMA had the force of that history behind it and several present-day interests that were asserted when DOMA was enacted in 1996, such as an interest in defending marriage and an interest in defending traditional notions of morality.

The Supreme Court has found that defending “traditional notions of morality” is not an adequate reason for enacting law. In fact, to do so would be to invite judicial rejection.

So it is definitely to our advantage to remind the court that the sole purpose of anti-gay laws – including anti-marriage laws – is based in a desire on the part of one segment of society to impose their religious beliefs upon others. It also helps that Moore quotes the Bible about abominations and such and makes a bestiality comparison. I’m surprised he didn’t channel Jonathan Edwards.

Thank you, thank you, thank you, Judge Moore for writing in and making it perfectly clear that opposition to same-sex marriage is based in religious doctrine, antipathy to gay people, and – at least in your case – baldfaced bigotry.

Republican Chair Michael Steele: The GOP and NOM Are “On The Same Page”

Republican Party Chairman Michael Steele’s job is up for grabs, even though he very much wants to keep it. And so he’s pulling out the issue that nearly all conservative politicians turn to when they want to shore up a base of support: marriage equality.

During the campaigns for midterm elections, the GOP and the Tea Party embarked on a concerted effort to downplay LGBT-related issues in order to reassure LGBT people and their allies that the GOP was no longer interested in fighting the culture war. But now that the elections are over and there are signs of growing discontent in the GOP over Steele’s numerous gaffs as party chief, Steele agreed to sit down with the National Organization for Marriage’s Frank Cannon for an in depth interview on the party’s plan to fight same-sex marriage.

In particular, Steele celebrated the GOP gains in the governorships and state legislative seats where “the battle is going to be, my friend.” He also praised the GOP’s partnership with NOM “and others in the movement to make very clear that this is a line that we want to draw.” He added:

For us, going forward, we’ll look to the leadership in Washington, yes, for any legislative or federal efforts to address the issue of marriage, between man and woman, traditional marriage. But most especially at the state level where I think the battle is really going to be fought over the next couple years, and we want to be in partnership through our state party organizations working with state legislative leadership to stand firmly and squarely behind the defense of marriage.

But Cannon disputed that marriage was just a state issue, and asked Steele what he would do to  “extend the branding, if you would, of the Republican Party platform’s support of marriage out in the public domain.” Steele answered:

You and I are actually on the same page here. I did not want to give the inference that somehow one side of this fight is less important than the other or less effective than the other. We’re going to have to come at this as a pincer move from the federal and the state level because that’s exactly how it’s being played out nationally. It’s not just what we’re seeing happening at the state level at the state legislatures, but it’s also a national move afoot to block attempts to, for example, to get the Defense of Marriage Act passed [sic] in Congress or to propose some of the legislation at the federal level that weakens the efforts by pro-family movements at state legislatures from being effective. So we’re on the same page there.

My only point was that really is the front line right now because that’s where we see the battle being won and lost, if you will, on a day to day basis.

Steele then goes on to defend his position by saying that not only is it not anti-gay, but it is also not exclusionary. And in incredible Animal Farm fashion, Steele intends to reconcile that fallacy by controling the terms of debate. “How we approach people and how we let others approach us really defines how this debate is going to unfold,” he explained. Which means that it’s alright to talk about marriage, as long as we only talk about marriage on his terms, and no one else’s. So he’s not only being exclusionary in his position on marriage, he also intends to be exclusionary on the very parameters of the debate.

But was terms does Steele want to debate marriage? This is where it gets to be the most insulting.

My father died as a young man from alcoholism. So my family, from a very, very early age when I was four years old, was broken. My father was an alcoholic. He was abusive. I saw what he did to my mother, and I saw  what he did to our family over time. So I have this understanding of family and how it’s held together and why it’s so important. And despite the shortcomings of my father, despite the difficulties and his own personal demons that he had to go through, he was still a very important part of my life. And my mother would share with me that while he may have been difficult with her, he was gentle with me and he understood at least, through some mechanism in his brain, that this child that he was holding was of some value. And so he would then impart to me certain things and tell me certain things about himself. And so the reality of it is, that cohesion is important.

Steele then goes on to say that as Maryland’s Lt. Governor, he met with many young men in jail who did not have “the definitional structure” of a one-man-one-woman family — not even one as dysfunctional as his family. And after having met so many criminals who violated the law,  he believes that it is vitally important for children of LGBT couples to be denied the societal support that families headed by straight families receive. In Steele’s view, if teen gang members and petty criminals who grow up without a father represent some sort of second class existence, then teenage boys and girls who grow up in LGBT families are third class — behind everyone else, including families headed by the gold standard of fathers who drink themselves to death.

And so his fight, then, is to preserve that order, and he is happy to modify the Federal Constitution in the process:

Oh, absolutely. Without hesitation or doubt. In fact we would partner with our leadership in the House and certainly our governors and leadership in the state legislatures to create a very very strong front line if you will, on that issue. I can’t again stress how important that is for how we will lead as a people, and how we will see ourselves as a nation down the road. And again, that is not to the exclusion of anyone, it’s not anti- anyone, or any group. It is just so fundamental and foundational, I think it needs to be protected.

At least three others are vying with Steele for the GOP chairmanship. But before you pin your hopes on Steele’s downfall, consider this: they, too, agreed to interviews with NOM. Former RNC political director Gentry Collins said that same-sex marriage “devalues” his marriage, Wisconsin GOP Chairman Reince Priebus vows to protect “the sanctity of marriage given to us by God,” former Missouri Republican Chairwoman Ann Wagner calls efforts to ban same-sex marriage “a pillar of our Republican party and our platform,” and that the GOP should not shy away from it, and the Tea Party-aligned Save American Jobs Project Chairman Saul Anuzis — you know, he leads the people who really only care about economic issues — says that defending one-man-one-woman marriage is “part of our faith.”

Obama Administration appeals DOMA ruling

From NPR:

The U.S. Department of Justice on Tuesday defended the federal law defining marriage as between a man and a woman by appealing two rulings in Massachusetts by a judge who called the law unconstitutional for denying federal benefits to gay married couples.

In two separate cases, U.S. District Judge Joseph Tauro in July ruled the federal Defense of Marriage Act, known as DOMA, is unconstitutional because it interferes with a state’s right to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The notice of appeal filed Tuesday did not spell out any arguments in support of the law. The appeals eventually will be heard by the 1st U.S. Circuit Court of Appeals in Boston.

According to GLAD, briefs will be filed before First Circuit Court of Appeals probably between now and next spring, with oral arguments likely to be heard in the fall of 2011.

The Department of Justice had an obligation to defend the law. But there is no legal obligation to appeal the rulings of the court.

Fierce advocate in action.

Will DOJ respond today in appeal of DOMA?

By my counting, today is the day that the Department of Justice must file an appeal to the court ruling which found that portions of the Defense of Marriage Act to violate the US Constitution. If not challenged, this decision would allow residents of Massachusetts who are in a same-sex marriage to have federal recognition of their marriage.

More Tea Partiers not upset about the overturn of DOMA

Last week the NY Times interviewed leaders of various Tea Party factions, noting that many found Judge Tauro’s decision that marriage is a state decision rather than a federal decision to be consistent with their own views. Now the Washington Times has interviewed more and found much the same.

“I do think it’s a state’s right,” said Phillip Dennis, Texas state coordinator for the Tea Party Patriots. The group does not take a position on social issues, he said, but personally, “I believe that if the people in Massachusetts want gay people to get married, then they should allow it, just as people in Utah do not support abortion. They should have the right to vote against that.”

Everett Wilkinson, state director for the Florida Tea Party Patriots, agreed: “On the issue [of gay marriage] itself, we have no stance, but any time a state’s rights or powers are encouraged over the federal government, it is a good thing.”

Why the Obama Administration Must Appeal DOMA Rulings

I know. That headline is heresy. But there’s the thing: the two rulings declaring the “Defense of Marriage Act” unconstitutional only apply to Massachusetts. It’s a great win for LGBT couples living in the Bay State, but it’s meaningless everywhere else.

As it stands, there are only three ways to get rid of DOMA nationwide. Barring appeals by Obama’s Department of Justice, the first option is to get another forty-nine sets of similar rulings by federal judges in forty-nine more states. While it’s true that these Massachusetts rulings would serve as a precedent for subsequent rulings by other federal judges, those judges aren’t bound by them in the same way they would be a Supreme Court ruling. So the practical message the Obama administration would be sending if they chose not to appeal this case would be, “Congratulations, now go win 49 more. (And keep going if you want D.C., Puerto Rico and the other territories.)” I just don’t see that happening.

The second option is to overturn DOMA in Congress. I think that would be the preferable solution, but we know how controversial that would be. As archaic as everyone thought anti-sodomy laws were, they were still in force in 14 states just seven years ago before Lawrence v. Texas finally struck them down. Hate crimes legislation and repealing “Don’t Ask, Don’t Tell” are also non-controversial according to public opinion polls, but we still see how difficult that has proven to be in the most LGBT-friendly Congress in history. We hardly need to remind ourselves that same-sex marriage is in a whole different league of contentiousness, as every single public referendum on the issue has painfully shown us time and time again. With the next Congress likely to be much more hostile to LGBT issues as this Congress, I’ve got lottery tickets with better odds than Congress repealing DOMA.

So that leaves the U.S. Supreme Court as the best option. Not a great option, but the best one. The path is still tricky, and it’s unclear how a majority might be put together to support these decisions. But these decisions are the marker against which future appeals will be decided, and that will happen only if those appeals are heard. The next step is the 1st Court of Appeals, then the Supreme Court, with the hope that the Supreme Court agrees to hear the cases should the Appeals Court overturn the lower court’s decisions. This could be Bowers vs. Harwick all over again, or it could be another Lawrence. But wherever it goes, the train has left the station. We’re either on board or not.

Update (Jul 11): Gay and Lesbian Advocates and Defenders (GLAD), the folks behind Gill v OPM has released a thorough set of FAQs (PDF: 264KB/8 pages) answering many of the questions asked by BTB readers in comments.

NOM Is Furious — Just Furious!

Reading this press release from the National Organization for Marriage made my spit my beer through my nose:

“Under the guidance of Elena Kagan’s brief that she filed when she was Solicitor General, Obama’s justice department deliberately sabotaged this case,” charged Brian Brown, President of NOM, referring to the Justice Department’s brief which described DOMA as discriminatory. Despite the explicit language in DOMA that the law was designed to protect children’s right to their mothers and fathers, the judge disavowed that DOMA has anything to do with responsible procreation. “With only Obama to defend DOMA, this federal judge has taken the extraordinary step of overturning a law passed by huge bipartisan majorities and signed into law by Pres. Clinton in 1996. A single federal judge in Boston has no moral right to decide the definition of marriage for the people of the United States,” Brown continued.

“Does this federal judge want to start another culture war?” asked Maggie Gallagher, Chairman of NOM. “Does he really want another Roe. v. Wade? The simple fact is that the right of the federal government to define marriage for the purposes of its federal law and federal territories has been clear since the late 19th century, when Congress banned polygamy. Only an incompetent defense could have lost this case. We expect to win in a higher court.”

Another Republican Activist Judge

One of the election cries of conservatives is “Protect our courts, elect Republicans who won’t appoint activist judges.”

Judge Joseph Tauro, who just found DOMA unconstitutional, was the chief legal counsel to Republican Massachusetts Governor John Volpe until he was nominated for Federal Judge by President Richard Nixon.

It kinda takes the wind out of the “liberal activist judge” claim, doesn’t it.

Observations about DOMA Cases

As we noted, Federal Court Judge Tauro of the United States District Court for the District of Massachusetts (First Federal Court District) announced rulings today in two different cases which found the Federal Defense of Marriage Act to be unconstitutional. This, my friends, is a WOW moment.

In reviewing the cases, I noted the following:

* The cases deal with two distinct sets of rights, the rights of individuals (i.e. Gill: the rights of gay married individuals to be treated like any other married individuals), and the rights of states (i.e. Commonwealth: the rights to define marriage for the residents of that state). In both cases and for different reasons, the judge found that the Federal Government had trampled rights.

* Both cases were found on summary judgment, in other words on matters of law not disputed fact.

* In Commonwealth, the judge noted that state control of marriage existed prior to the Constitution, during its enactment and ever since. Indeed, many times between the 1880’s and 1950’s there were an attempts to unify state marriage law and it the method understood to be required – and which was unsuccessfully attempted each time – was by means of a federal constitutional amendment.

* In Commonwealth, the state sued not on behalf of its residents but as an aggrieved party who has to pay taxes unfairly and loses revenue to which it is entitled. Massachusetts argued that it is both forced to discriminate against AND to be cheated by same-sex couples. It provided an example of the Federal Government disallowing the state to offer burial in a state-owned veterans cemetery without losing tens of millions of dollars and also an example of how being forced to treat married gay couples as single would result in the state paying medical benefits to individuals who would not qualify as part of a couple (while this may seem like harsh reasoning, it’s smart to point out that marriages include not only benefits but also obligations). Further, the federal government requires that the state pay taxes on its citizens’ income which should be exempt.

* In Commonwealth, the Judge found that the definition of marriage was not delineated as belonging to the Federal Government and was, therefore, the purview of the states. Further it relied on unconstitutional demands (as found in Gill) and thus does not come under the spending provision exceptions allowed for the federal government.

* The judge in the Gill case did not address issues of strict scrutiny. He found that he could make his determination based on the rational basis (lower level of scrutiny).

As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective.

In Perry v. Schwarzenegger, the opposing counsel argued that under the rational basis test, anything however bizarre or peculiar which ever could possibly be rationalized (what a rational person could believe) must be accepted as a justification for establishing different treatment for equally situated people. Judge Tauro – in this case – did not accept the wide breadth of such argument and this more narrowly insisting on a connection between stated goal and method which is not “arbitrary or irrational” may – at least in the short term – allow for a commonality of thinking and wording.

* In Gill, as in Perry, the plaintiffs defendants (the federal government) tried to distant themselves from the arguments used to enact the legislation and replace these arguments with other, more legally compatible, arguments. Judge Tauro did not allow them to be dismissed entirely.

And as some of the previous arguments were the same as the current arguments in Perry, the finding by Tauro may be relevant to that case. He soundly dismissed the notions that banning gay marriage benefitted children (of anyone), further encouraged heterosexual marriage (“this court cannot discern a means by
which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex”), or protected the prestige of marriage (because the only tactic used to enhance heterosexual marriage was to harm gay people).

* In Gill the plaintiffs had offered “consistency” as a justification for not recognizing Massachusetts’ marriages – don’t have some states with some recognition and others with different recognition. They argued that the Feds have a right to “go slow” and wait for consensus. Basing his decision on the Commonwealth case, Tauro found that no such federal right exists.

Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter.

Further, the judge notes that DOMA actually contradicts the government’s criteria for distinguishing between who and who does not get benefits. If the government says that marital status is a legitimate basis for offering benefits to some and not to others, then denying it as a basis for same-sex couples challenges the legitimacy of marital status as a basis at all.

* These cases do not discuss whether states may deny marriage equality, only whether the federal government may do so. If it is constitutionally permissible to discriminate against gay people in matters of marriage, only states may enact that discrimination.

* Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.

Defense of Marriage Act Declared Unconstitutional

We have just received word that a Federal Court Judge has ruled the Defense of Marriage Act unconstitutional.

According to a press release issued by Gay & Lesbian Advocates & Defenders (GLAD):

This afternoon, a federal court judge issued a decision in Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders’ lawsuit challenging Section 3 of the Defense of Marriage Act (DOMA).

The judge also issued a decision in Commonwealth v. United States Department of Health and Human Services, Attorney General Martha Coakley’s lawsuit challenging Section 3 of DOMA, which is separate from GLAD’s lawsuit and based on a different legal theory.

 One Tweet has it that GLAD’s case was decided on “equal protection principles.” Of course, we eagerly await the text of the ruling itself, which I presume will not be in the form of thousands of tweets.

This is an important first step in the long slog to the Supreme Court. Given that the U.S. Justice Department is likely to appeal the ruling, it’s unclear what immediate affect this ruling might have.

Update 1: Bay Windows has more information:

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

Both cases were argued separately last May, although both decisions were handed down simultaneously today. Bay Windows notes that this is an extremely quick turn for a decision like this.

Update 2: Reporter Rex Wocknoer sent out this key snippet from the Commonwealth vs US HHS decision:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

Update2  3 and 4: The Gill decision has been uploaded here. The Commonwealth decision is here. I’m pretty busy right now, so feel free to discuss them in the comments.

Gay, Inc., vs Gay Advocavy

Two fierce advocates: The HRC’s Joe Solmonese defends the Administration while Cleve Jones defends the LGBT community.

I’m amazed that after Solmonese protests that repealing Don’t Ask Don’t Tell is tricky and will be time-consuming, he decides to shift gears over the administration’s inaction on repealing the Defense of Marriage Act. Out of nowhere Solmonese comes to life and declares that “the most significant thing the President can do is overturn the Defense of Marriage Act. That is immediately within his power.” Which, of course, it isn’t. It’s a law that Congress has to overturn. But after seven minutes sitting next to a real advocate, I guess he had to say something.