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Posts for July, 2013

Justice Department Did NOT Step In As BLAG Pulls Out

Jim Burroway

July 19th, 2013

Report that the Justice Department filed a brief opposing a request by gay veterans and their spouses for judgment in their favor their challenge to veterans’ benefits statutes led to some confusion as to what the Justice Department’s objections really were. One interpretation was that the Justice Department was trying to take up the work of the GOP-controlled House Bipartisan Legal Advisory Group (BLAG) after BLAG announced that they would drop their efforts to prevent the veterans spousal and family benefits from being extended to married same-sex couples. But according to the actual filing by the Justice Department:

In light of the Supreme Court’s decision in Windsor, striking down Section 3 of DOMA, the Department of Defense will now construe the definitional provisions of “spouse” in Titles 10and 32 to include same-sex spouses See Extending Benefits to Same-Sex Domestic Partners of Military Members, Memorandum for Secretaries of the Military Departments, Feb. 11, 2013, available at http://www.defense.gov/news/Same-SexBenefitsMemo.pdf (“In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words ‘spouse’ and ‘marriage’ without regard to sexualorientation, and married couples, irrespective of sexual orientation, and their dependents, will begranted full military benefits.”). The Department of Defense intends to expeditiously make available benefits provided under Titles 10 and 32 to the same-sex spouses of servicemembers. To that end, the Department of Defense is currently working to revamp its Defense Enrollment Eligibility Reporting System (“DEERS”), a computerized database of military sponsors, families and others who are entitled to various military benefits. Indeed, the central claim in the Complaint is Plaintiffs’ inability to enroll in DEERS, which in turn has prevented Plaintiffs fromfiling claims for military benefits.

Because the Supreme Court has already struck down Section 3 of DOMA in Windsor, there is no need for this Court to grant any declaratory relief with respect to Section 3 of DOMA.There is also no need for this Court to grant declaratory or injunctive relief with respect to the definitional provisions of Titles 10 and 32. As noted above, the government will apply these provisions in light of Windsor to include same-sex spouses. There is no longer any dispute with respect to Defendants’ obligations to process and consider Plaintiffs’ claims for military benefits because the government agrees that it needs to do so, and is working to do so as it implements the Supreme Court’s decision in Windsor. Given the government’s agreement, there is no longer any case or controversy with respect to Plaintiffs’ Titles 10 and 32 claims.

The Justice Department then went on to argue that, with DOMA3 out of the way and the Defense Department moving to implement the Windsor decision, the court had no jurisdiction on procedural grounds. BLAG was seeking to block veterans spouses from accessing veterans benefits altogether, which is precisely the opposite of what this motion says.

Liberty Counsel’s Mat Staver: Recognizing People’s Marriages Is Just Like Slavery, Eugenics and the Japanese Internment

Jim Burroway

June 28th, 2013

They’re still chattering. Via Right Wing Watch:

I’m very dissapointed in this decision. I think this decision represents a line that the court has crossed into illegitimacy. We’ve seen this before in its history, where it decided the Dred Scott decision, which was an illigitimate decision; the Korematsu decision which was the Japanese interment decision; the Buck v. Bell decision that says its okay to force people to be sterilized, an illegitimate decision. All of which we say were dark spots in the Court’s history. I think today’s decision falls into that same category. This decision is by five justices that cut the tether between themselves and the Constitution. They are in their own fantasy world that there is somehow an equal protection right to mame-sex marriage.

Speaking of illegitimate: Mat Staver founder of Liberty Counsel. He’s also a vice president at Liberty university and the dean of its law school, which teaches his law students should ignore the law counsel their clients to break the law in favor of “God’s Law.” And according to a RICO lawsuit filed last year connecting his law school to the Miller-Jenkins kidnapping case, his law school practices what he teaches.

Christie Slams DOMA Ruling

Jim Burroway

June 27th, 2013

New Jersey GOP Gov. Chris Christie, whose name is often brought up as a potential 2016 presidential contender, blasted yesterday’s U.S. Supreme Court ruling declaring Section 3 of the Defense of Marriage Act unconstitutional:

“I don’t think the ruling was appropriate. I think it was wrong. They, the Court, without a basis in standing, substituted their own judgment for the judgment of a Republican Congress and a Democratic President. In the Republican Congress in the ‘90s and Bill Clinton. I thought that Justice Kennedy’s opinion was, in many respects, incredibly insulting to those people, 340-some members of Congress who voted for the Defense of Marriage Act, and Bill Clinton. He basically said that the only reason to pass that bill was to demean people. That’s heck of a thing to say about Bill Clinton and about the Republican Congress back in the ‘90s. And it’s just another example of judicial supremacy, rather than having the government run by the people we actually vote for. So I thought it was a bad decision.

Christie reiterated his vow to again veto a marriage equality bill in New Jersey, insisting instead that the rights of New Jersey LGBT couples be put to a vote.

Will The Real Rand Paul Please Stand Up

Jim Burroway

June 26th, 2013

Sen. Rand Paul (R-KY) has had quite a whipsaw of a day. This morning, he appeared on Glenn Beck’s radio program to talk about the Supreme Court marriage decisions. Beck said that today’s decisions opened up the possibility that “one man, three women. Uh, one woman, four men” can  get married. Paul took Beck’s lunacy a step further:

I think this is the conundrum and gets back to what you were saying in the opening — whether or not churches should decide this,” Paul said on Glenn Beck’s radio show Wednesday morning. “But it is difficult because if we have no laws on this people take it to one extension further. Does it have to be humans? You know, I mean. So there really are — the question is what social mores, can some social mores be part of legislation?”

“Historically, we did at the state legislative level, we did allow for some social mores to be part of it,” the Kentucky Republican continued. “Some of them were said to be for health reasons and otherwise, but I’m kind of with you, I see the thousands-of-year tradition of the nucleus of the family unit. I also see that economically, if you just look without any kind of moral periscope and you say, what is it that is the leading cause of poverty in our country? It’s having kids without marriage. The stability of the marriage unit is enormous and we should not just say oh we’re punting on it, marriage can be anything.”

Paul walk that statement back a couple of hours later in an interview on Fox News:

“I don’t think it will be with multiple humans, and I think it will be human and human,” Paul said on Fox News. “I didn’t mean that to mean anything other than that I think the government will still probably be involved in defining marriage to a certain aspect. I don’t think we’re going on towards polygamy or things beyond that.”

And a few hours after that, Paul’s transformation was complete when he told ABC that the Republican Party will simply have to “agree to disagree on some of these issues.”

DOMA Splits GOP Leadership and Rank-And-File

Jim Burroway

June 26th, 2013

House Speaker John Boehner (R-OH) issued this brief statement after the DOMA decision was announced:

Congress passed the Defense of Marriage Act on an overwhelmingly bipartisan basis and President Clinton signed it into law.  The House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally.  While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances.  A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman

As BTB’s Timothy Kincaid pointed out, many are seeing his statement and others from Sen. John Cornyn (R-TX) and Senate Minority leader Mitch McConnell (R_KY) as a sign that Republican leadership isn’t eager to take up opposition to marriage equality in the nation’s Capital. They can see the tea leaves as well as anyone. Well, almost anyone. One rank and file Congressman looked at Boehner’s statement and saw things differently:

Rep. Tim Huelskamp (R-Kan.), speaking at a Tuesday meeting between reporters and conservative lawmakers, said he will file a constituional amendment in Congress late this week to restore DOMA. Huelskamp said he will be joined by other conservatives.

“My response to this [decision] will be later this week to file a federal marriage amendment,” he said.

When asked if leadership is likely to support efforts to restore DOMA, Huelskamp said he was encouraged by the Boehner’s statement after the ruling. “I give tremendous credit to the Speaker of House,” Huelskamp said.

Whatever Huelskamp may think he saw in Boehner’s statement, I think it’s safe to say however that DOMA’s revival will be DOA as soon as it hits the House floor.

Meanwhile, Florida Senator and possible 2016 presidential contender Marco Rubio strikes a different tone:

I believe the Supreme Court made a serious mistake today when it overstepped its important, but limited role.  I do not believe that President Clinton and overwhelming bipartisan majorities of both houses of Congress acted with malice or intent to ‘demean’ a class of people when they adopted a uniform definition of marriage for the purposes of federal law.  The Court should not have second guessed the will of the American people acting through their elected representatives without firm constitutional justifications.  The sweeping language of today’s majority opinion is more troubling than the ruling itself as it points to further interference by the Court in the years to come.

For millions of Americans, the definition of marriage is not an abstract political question, or some remote legal debate.  It’s a deeply personal issue. It’s an issue that I have grappled with as well.

I believe that marriage is a unique historical institution best defined as the union between one man and one woman. In the U.S., marriage has traditionally been defined by state law, and I believe each state, acting through their elected representatives or the ballot, should decide their own definition of marriage. For the purposes of federal law, however, Congress had every right to adopt a uniform definition and I regret that the Supreme Court would interfere with that determination.

Dem Reps. Cheer Marriage Decisions

Jim Burroway

June 26th, 2013

A paraphrase of what they said:

Rep. Nancy Pelosi (D-CA): Oh happy day! Justice was done for thousands of LGBT families nationwide. Forty-four years after Stonewall. Supreme Court bent the arc of history toward justice. Equal protection is a promise kept. More work to be done. Applauds the inspiration of Harvey Milk, the courage of Edie Windsor.

Rep. Steny Hoyer (D-MD): Principles of equal justice under law. Maryland and other states wanted full marriage equality. Now they get it. A good day for every American. Fifty years ago, one of my first votes as state Senator was to repeal the miscegenation law in Maryland. Another step for equality, justice, inclusion.

Rep. Jerrold Nadler (D-NY): History of the U.S. can be read as an expanding of “all men are created equal.” Today is another step in that evolution. Breathes life into constitution’s promise of equal liberty for all. DOMA embodied contempt and animus. Work is not done. DOMA in its entirety must be wiped from the books. Reintroduction of Respect for Marriage Act later today.

Rep. Jared Polis (D-CO): Was on the steps of the Supreme Court when decision was handed down. Not a single anti-equality protester. This is the system working for families like mine. Americans are more than ready for this decision. Battle is far from done. People can still be fired, kids face bullying. Congress still has a critical role.

Rep. David Cicilline (D-RI): Applauds the simplicity of the court’s analysis and power of the decision. DOMA was designed to stigmatize and harm LGBT people. Decision helps to transform the lives of thousands of families. Gives meaning to our values.

Rep. Sean Patrick Maloney (D-NY): Called partner, Randy, of 21 years. Couldn’t get the words out. For families like mine, when I get the kids ready for school, etc., they aren’t growing up in a family that is less than someone else’s. (Holding back tears.) Brown v. Board of Ed., Loving v. Virginia, Lawrence v. Texas, and now we are even more American.

Rep. Mark Pocan (D-WI): 93 million people live in states with marriage equality. WE still face barriers. Make sure every single loving, committed relatinship can be recognized.

Rep. Mark Takano (D-CA): I challenge every California clerk to start issuing marriage licenses to every couple that desires one. “I feel jubilation, I feel fabulous, I feel every gay word I can think of.” Kennedy wrote beautiful sentences and reached for the poetic. Stirring words: DOMA humiliates the children of same-sex couples.

GOP Reps. React To Marriage Decisions

Jim Burroway

June 26th, 2013

In case you don’t want to watch the video, here’s a non-transcript rendition of what they said:

Rep. Steve Scalise (R-LA): Unelected judges.

Rep. John Fleming (R-LA): Popular laws = Constitutional. Unpopular laws = Unconstitutional.

Rep. Joe Pitts (R-PA): Thank you Boehner for defending it. Negative consequences for children.

Rep. Scott Garrett (R-NJ): We the people have final say, not unelected courts. Courts got Federalism wrong.

Rep. Tim Wahlberg (R-MI): Desires of adults not more important than needs of children. “Society itself is at risk and cannot continue.”

Rep. Doug LaMalfa (R-CA): Marriage has been debased. Why vote? It doesn’t stop here. Churches will be forced to do things they are against.

Rep. Randy Weber (R-TX): Court is in collusion with Obama at the expense of children. One more attack on religious institutions.

Rep. Louie Gohmert (R-TX): This is not a hateful group. We love the U.S.A. It’s all Obama’s fault. Holder lied. The Court (“the new holy quintet”) lied. Dishonesty, inconsistency. King Solomon!

Rep. Michele Bachman (R-MN): Limited government. Denied equal protection to every American in the United States. No more co-equal branches, but Supreme Court over all. Oligarchy of five. Limited government. Decision belies the constitution. “The people will have their sway.” Equal protection again. No jurisdiction. Foundational unit of society. Created by God. Supreme Court have not risen to the level of God.

Rep. Tim Huelscamp (R-KS): Narrow radical majority. Think of the children.

NOM: it’s a staining stench

Timothy Kincaid

June 26th, 2013

“There’s a stench coming from these cases that has now stained the Supreme Court. It’s imperative that Congress continue to protect the right of states to not recognize faux marriages in their state.” — Brian Brown

You already know what the National Organization for Marriage (theirs not yours) has to say, but here’s their message in short.

“… dismay and outrage … illegitimate … will be rejected by tens of millions of Americans … demanded … miscarriage of justice … overturn the perfectly legal action … over 7 million California voters … rewards corrupt politicians … preserve the right of states … refuse to recognize faux marriages … over 52% of the vote … homosexual groups and activists … a homosexual judge in San Francisco … Ninth Circuit Court of Appeals … liberal judge Stephen Reinhardt … stench … stained … corrupt … betray the voters … illegitimate decision … refuse … rogue decision … corruption … so-called gay marriages … vast majority of American voters … marriage as the union of one man and one woman … major victory for those defending Proposition 8, especially Chuck Cooper and his firm, along with the attorneys at the Alliance Defending Freedom, and Andy Pugno of the Prop 8 Legal Defense Fund.”

Clearly there’s a staining stench over there in nomian reality which leads to delusion.

Obama Administration Moves Quickly on DOMA’s Demise

Jim Burroway

June 26th, 2013

President Barack Obama issued the following statement:

I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.

This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better

So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.

On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.

The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.

Attorney General Eric Holder is responds to the President’s request:

Today’s historic decision in the case of United States v. Windsor, declaring Section 3 of the Defense of Marriage Act unconstitutional, is an enormous triumph for equal protection under the law for all Americans.  The Court’s ruling gives real meaning to the Constitution’s promise of equal protection to all members of our society, regardless of sexual orientation.  This decision impacts a broad array of federal laws.  At the President’s direction, the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision.  Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over.  Important, life-changing work remains before us.  And, as we move forward in a manner consistent with the Court’s ruling, the Department of Justice is committed to continuing this work, and using every tool and legal authority available to us to combat discrimination and to safeguard the rights of all Americans.

Secretary of Defense Chuck Hagel also issued a statement promising to “immediately begin the process” of ensuring all military spouses enjoy the same benefits “as soon as possible“:

The Department of Defense welcomes the Supreme Court’s decision today on the Defense of Marriage Act. The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies. The Department of Defense intends to make the same benefits available to all military spouses — regardless of sexual orientation — as soon as possible. That is now the law and it is the right thing to do.

Every person who serves our nation in uniform stepped forward with courage and commitment. All that matters is their patriotism, their willingness to serve their country, and their qualifications to do so. Today’s ruling helps ensure that all men and women who serve this country can be treated fairly and equally, with the full dignity and respect they so richly deserve.

DOMA SECTION 3 IS DEAD!

Jim Burroway

June 26th, 2013

In a 5-4 decision, the US Supreme Court struck down Section 3 of the Defense of Marriage Act, the part that bars the federal government from recognizing same-sex marriage, has been struck down as unconstitutional.

The opinion is here (PDF: 329KB/77 pages). Justice Kennedy, writing for the majority:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13–26.

(a) By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of NewYork, and of 11 other States, have sought to protect. Assessing the validity of that intervention requires discussing the historical and traditional extent of state power and authority over marriage.

Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384. Marriage laws may vary from State to State, but they are consistent within each State.

DOMA rejects this long-established precept. The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. New York’s actions were a proper exercise of its sovereign authority. They reflect both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.

(b) By seeking to injure the very class New York seeks to protect,DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413

U. S. 528, 534–535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments are just as candid about the congressional purpose.DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.

DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. Pp. 20–26.

The justices recognize the broad reach of DOMA:

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in person hood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others,the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. [Emphasis mine]

Chief Justice John Roberts dissented with Justice Antonin Scalia both on the question of standing and on the merits of the case. In Roberts’s dissent:

I agree with JUSTICE SCALIA that this Court lacks jurisdiction to review the decisions of the courts below. On the merits of the constitutional dispute the Court decides to decide, I also agree with JUSTICE SCALIA that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability am- ply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. Post, at 19–20 (dissenting opinion).

Scalia’s dissent, naturally, was much more pointed as to standing:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted leg- islation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

Scalia describes the court’s decision to hear the case “jaw drawing.” But since the court decided to hear the case on its merits, Scalia addressed them as well:

As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.

However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex),there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968). Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.

Scalia dismissed the animus behind DOMA:

But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “dis- parage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been questioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

…By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

The Family “Research” Council will undoubtedly be quoting Scalia extensively in the days to come.

Alito’s dissent is similar to Scalia’s, if not quite as entertaining, but he does manage to parrot FRC and NOM:

The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understand-ing of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage— have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.

We can expect something similar to take place if same sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.

 

DOMA Oral Arguments Released

Jim Burroway

March 27th, 2013

Audio and transcript of today’s oral arguments forWindsor v U.S. are available here.

DOMA’s Doom Appears Likely

Jim Burroway

March 27th, 2013

In contrast to yesterday’s Prop 8 hearing, where the Supreme Court looked like it was desperately seeking a way to avoid making a decision, today’s hearing for the Defense of Marriage Act was more focused, directly, or indirectly, on the statutes constitutionality itself. Like yesterday, Justices first tacked the issue of standing — should the House Bipartisan Legal Advisory Group (BLAG) be defending the statute instead of the Justice Department — but those arguments, it seemed to me, also centered on DOMA’s constitutionality:

Conservative justices sharply questioned why the Justice Department is refusing to defend DOMA as unconstitutional but yet enforcing the law and placing the gay-marriage question before the Supreme Court. Justices also questioned whether the case belonged before the court at all.

Chief Justice John Roberts told attorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

Justice Antonin Scalia cited the longstanding Office of Legal Counsel memorandum that requires the Justice Department to defend laws passed by Congress, except in rare circumstances. He called it a “new world” where Attorney General Eric Holder can decide a law is unconstitutional, but yet not so unconstitutional that the executive branch won’t enforce the law.

…Justice Anthony Kennedy cited the controversial and “questionable” practice of presidential signing statements as an example. He said if the president doesn’t think a law is constitutional then he shouldn’t sign it. And said the same principle perhaps applied in this case — meaning if the president believes the law is unconstitutional, he shouldn’t enforce it.

…Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

Justices set aside questions of standing for the second hour, which was set aside to examine the constitutionality of DOMA itself:

Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

…Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

…Justice Kagan said the House report that accompanied the legislation suggested at least some lawmakers had improper motives to enacting the law, such as for the purposes of voicing disapproval of homosexuality.  Mr. Clement said the high court has never invalidated a statute on that basis.

The issue of federalism and the Tenth Amendment limiting the powers of the Federal Government, arguments which have been mostly lacking in the case against DOMA, appear nevertheless to be the handle that the Justices will likely grasp rather than the Equal Protection clause:

But Chief Justice John Roberts immediately changes the subject to the more abstract question of federalism: If, as the administration argues, the federal government can’t refuse to recognize state-authorized gay marriages, can it redefine marriage to favor same-sex couples? That is, to define committed same-sex couples as married for federal purposes even if a state doesn’t recognize them?

Justice Kennedy also is interested in this issue: Does the federal government using its own definition of marriage raise any federalism issues by stepping on the states’ traditional prerogative of family law?

…Justice Kennedy, who has championed states’ rights at the court, says there’s no need to reach the equal-protection issue if the federal government had no authority to supersede state marriage laws in the first place.

 Josh Marhsall at Talking Points Memo notes the significance of the states rights arguments against DOMA:

If that’s the case, it would probably be the first time that “states rights” was ever used to vindicate any actual person or group’s rights. It’s almost always been bulwark behind which states hide to deprive citizens of rights. There are likely some marginal examples of the contrary. But the big verdict of history is unmistakable. It would be an ironic first.

300 Employers Urge SCOTUS to Declare DOMA Unconstitutional

Jim Burroway

February 27th, 2013

More than 200 businesses, a couple score of law firms, sixteen civic, professional and trade groups, seventeen cities and counties and the United States Conference of mayors — the short list of signatories runs six pages alone — have signed on to an Amicus brief urging the U.S. Supreme Court to declare Section 3 of the Defense of Marriage Act unconstitutional. The brief, filed in support of Edith Windsor in Windsor v. U.S. (which is now available online), argues that DOMA “impairs employer/employee relations and other business interests”:

Federal law provides to the working family many benefits and protections relating to health care, pro-tected leave, and retirement. These protections provide security and support to an employee grappling with sickness, disability, childcare, family crisis, or retirement, allowing the employee to devote more focus and attention to his work.

DOMA thwarts these employee expectations, to the direct detriment of some married employees of amici , and, by extension, of amici ourselves. As set forth below, DOMA forces amici to consider the gender of the spouses of our lawfully married employees when determining the scope and manner of benefits that may be extended to those spouses (and the chil-dren of those spouses). DOMA enforces discriminatory tax treatment of spousal retirement and health care benefits. In many other benefit-related matters,amici may incur the cost and administrative burden of “workarounds” (employer-created benefit structures attempting to compensate for the discriminatory effects of DOMA), or leave the married workforce in separate castes.

Having states recognizing same-sex marriages while the Federal government willfully ignores those legal marriage produces a costly burden to employers:

These dual regimes have spawned an industry of costly compliance specialists. Some amici have had to pay vendors to reprogram benefits and payroll systems, to add coding to reconcile different tax and benefit treatments, to reconfigure at every benefit and coverage level, and to revisit all of these modifications with every change in tax or ERISA laws for potential DOMA impact. Attorneys and ERISA advisors must be consulted. Human resources, benefits,and payroll personnel must be trained and retrained as tax or ERISA laws change. Plan documents, enrollment forms, and administrative procedures must be scoured for the word “spouse,” and amendments and disclosures drafted to try to explain the numerous implications and consequences of a given benefits decision on the personal tax situation of an employee with a same-sex spouse. Enrollment systems must be reprogrammed to account for different spousal circumstances, and linked to provider records to ensure the providers extend appropriate coverage. Benefits and human resources departments, facing questions from employees with same-sex spouses regarding workplace benefit selections and coverage, must be adequately trained and prepared to explain the disparate treatment to employees who may later realize (perhaps too late) that their benefits choices and decisions carried unanticipated and significant financial implications. The complexity and uncertainty saps critical time, focus, and energy from the human resources and benefits administration function.

The second part of the brief goes the heart of the matter, that DOMA forces employers to “become the face of its mandate that two separate castes of married persons be identified and separately treated.”:

In the modern workplace, the employer becomes the face of DOMA’s discriminatory treatment, and is placed in the role of intrusive inquisitor, imputer of taxable income, and withholder of benefits. The employer is thus forced by DOMA to participate in the injury of its own workforce morale. Yale University’s error in administering DOMA, and its implementation of unexpected tax withholding against employees married to same-sex spouses in 2011, cast the university as the antagonist to its own employees. Many amici, as employers, provide certain workarounds that attempt to address some of the disparate treatment of same-sex couples that DOMA requires. Many amici that are cities and counties have gone even farther, making substantial efforts to prevent discrimination against same-sex couples, up to and including passing anti-discrimination ordinances and amending city charters to outlaw discrimination against same-sex couples. Administering and implementing DOMA subverts efforts to eliminate obstacles to full legal recognition for employees who have lawfully entered into committed relationships with persons of the same sex.

…For many employers, DOMA does violence to the morale of the institution itself. Like other persons, legal and natural, amici are motivated by core principles. As of December 2012, 88% of Fortune 500 companies provided nondiscrimination protection for their gay and lesbian employees. …These principles spring from hard experience. Our organizations are engaged in national and international competition -— for talent, customers, and business. That competition demands teamwork, and teamwork thrives when the organization minimizes distracting differences, and focuses on a common mission. DOMA’s core mandate -— that we single out some of our married colleagues and treat them as a lesser class —- upsets this imperative.

Our principles are not platitudes. Our mission statements are not simply plaques in the lobby. Statements of principle are our agenda for success: born of experience, tested in laboratory, factory, and office, attuned to competition. Our principles reflect, in the truest sense, our business judgment. By force of law, DOMA rescinds that judgment and directs that we renounce these principles or, worse yet, betray them.

Earlier today, it was announced that more than sixty businesses have submitted a brief to the U.S. Supreme Court urging it to declare California’s Prop 8 unconstitutional. While I haven’t been able to find the full text of that brief, it appears that at least some of the arguments made there are repeated here. That brief argued that Prop 8 “leave(s) companies in the untenable position of being compelled implicitly to endorse the second-class status to which their gay and lesbian employees, clients, customers, and business associates are relegated. …Until the law no longer relegates same-sex couples to second-class status as inferior “domestic partnerships,” our adherence to the law compels us to abide by a distinction that stigmatizes and dehumanizes gay men and lesbians.”

Signatories to the Windsor brief includes many of America’s top companies and brands, including Aetna, Alaska Airlines, Amazon.com, AIG, Apple, A|X Armani Exchange, BNY Mellon, Bankers Trust, BlackRock, Caesars Entertainment, CBS, Cisco, Citigroup, The Corcoran Group, Coupons.com, Deutche Bank, eBay, Earnst & Young, Facebook, Goldman Sachs, Google, Horizon Air, Intel, Intuit, JetBlue, the Jim Henson Company, Johnson & Johnson, Levi Strauss, Liberty Mutual, Marriot International, Mars, McGraw-Hill, Microsoft, Moody’s, Morgan Stanley, New York Life, Nike, Oracle, Orbitz, Pfizer, Qualcomm, REI, salesforce.com, Starbucks, Thomson Reuters, Twitter, Viacom, Walt Disney, and Xerox. That is just a short list of the big names. There are about 300 more. I look forward to the American Family Association’s next boycott announcement.

Obama Administration Files Brief Asking SCOTUS To Strike Down DOMA Section 3

Jim Burroway

February 25th, 2013

Last Friday, President Obama’s Solicitor General, Donald Verrilli, filed this brief in United States v. Windsor, urging the Supreme Court to strike down Section 3 of the Defense of Marriage Act as unconstitutional. Section 3 is the portion of the law which bars the federal government from recognizing same-sex marriages which are lawfully performed by the states.

The brief argues that the case before the Supreme Court deserves heightened scrutiny due to the long history of discrimination that gays and lesbians have experienced throughout history. This argument is in keeping with the Justice Department’s announcement in 2011 that it would no longer actively defend DOMA in Federal Court. After laying out the reasons for examining the law under heightened scrutiny, Verrilli contends that DOMA fails that test.

But in an interesting twist, Verrilli also recognized that the Court has long been reluctant to apply heightened scrutiny. If the Court says that the proper standard for evaluating DOMA is the “rational basis” standard — which is highly deferential to Congress’ decision-making — then the Defense of Marriage Act would survive constitutional muster. But Verrilli also contends that the U.S. Supreme Court, in striking down state sodomy laws in 2003′s Lawrence v. Texas, the court already chose a standard that goes above “rational basis,” Justice Sandra Day O’Connor called “a more searching form of rational basis.” And under this view, DOMA would fail the test:

To the extent sexual orientation may be considered to fall short in some dimension [to apply  heightened scrutiny test], the history of discrimination and the absence of relation to one’s capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an“unpopular group.”

Section 3 would fail to satisfy any such analysis,largely for the reasons it fails heightened scrutiny.Like the law struck down in Romer (Romer v. Evans, which struck down a Colorado constitutional amendment prohibiting gays and lesbians from seeking anti-discrimination protections in state and local laws), Section 3 is “at once too narrow and too broad.” It imposes a “broad and undifferentiated disability” on the same narrow class of people at issue in Romer — gay and lesbian people — by denying effect to their state-recognized marital relationships across the entire spectrum of federal law. And the asserted rationales are sufficiently “far removed from” the effect of the law — particularly given its breadth — that they should not be credited as valid justifications.

The brief concludes:

 BLAG (Br. 58-59) makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.

Prop 8 Amicus Briefs, Brought to You by the Lunatic Fringe

Jim Burroway

January 30th, 2013

Dozens of organizations and individuals have filed Amicus Curiae briefs with the U.S. Supreme Court arguing either for or against California’s Proposition 8. A couple of them are worth looking at, if for no other reason than for their entertainment value. For example, there’s this brief filed by Margie Phelps for Westboro
Baptist Church. Amicus Curiae briefs are expected to follow several conventions, and the ways in which Westboro’s brief observes them is indicative of Westboro’s highly entertaining approach to things.

First, instead of being a brief in support of petitioners (the pro-Prop 8 side) or respondents (the side that wants to overturn Prop 8), Westboro’s brief is filed “in support of neither party.” Okay.

And then there’s the Table of Authorities. A typical brief will be loaded up with citations to case law, along with other citations to “other authorities,” which would include sources like studies, articles, books, speeches, transcripts, etc. Of Westboro’s 66 citations under “Other Authorities,” 36 of them are Bible quotes. Which means that there are several pages with nothing but reproduced bible passages, including five pages devoted to the entire story of Sodom and Gomorrah. (“This historical event described in Genesis 19:1-28, Holy Bible, must be considered at this hour…”) The brief also has a lengthy retelling of the Great Flood (“The description of the complete destruction of all mankind – a population as or bigger than today’s population…”).

And after all that, Westboro concludes:

Same-sex marriage will destroy this nation. If the leaders of this country treat what God has called abominable as something to be respected, revered,and blessed with the seal of approval of the government, that will cross a final line with God. The harm that will befall this nation, when the condign destructive wrath of God pours out on a nation that purposefully, in a calculating manner, institutionalizes marriage licenses for same-sex unions, is the ultimate harm to the health, welfare and safety of the people. The government is duty bound – in this Christian nation – to institute the standard of God on marriage, and pass and uphold laws that forbid same-sex marriage.

By the way, Westboro filed an identical brief for United States v Windsor, which challenges the constitutionality of the Defense of Marriage Act. If nothing else, I guess that ensures both consistency as well as economy.

Another interesting brief (PDF: 127KB/ 14 pages) calling for the court to uphold Prop 8 comes from a man by the name of David Benkoff. It’s been nearly four years since we last heard from him. Here’s how Timothy Kincaid introduced him to BTB readers in 2008:

David Benkof has been getting a bit of attention lately.

And at first glace David appears to be a young gay man who believes that there are better options for gay couples than marriage, that the community should join him in prioritizing other more pressing issues, that the marriage discussion is harming the efforts of gay couples in red states to get recognition for their unions, and that he wants to help. We’d also think that he’s a gay columnist, that he speaks for an influential collection of gay thinkers, and that he is part of the gay and lesbian community and shares our goals and dreams.

None of that is true.

During the Prop 8 campaign, he trotted out his gay/straight/bi/Idunno-guy-against-same-sex-marriage schtick with a web site called “Gays Defend Marriage,” in which he claimed to be a “gay columnist” who was against same-sex marriage. Timothy Kincaid exposed the charade, Benkoff doubled down, and then he abruptly left the scene, saying he “recently learned quite a bit of disturbing information that makes it impossible for me to continue supporting a movement I no longer respect.”

Well, he’s back now. And for this amicus brief, Benkof teamed up with Robert Oscar Lopez (described as a bisexual man who was raised by two lesbian mothers and who is currently heterosexually married), and Doug Mainwaring (a man who raised two teenage sons after separating from his wife and coming out gay.) Again, we see a familiar pattern: people with life credentials which are supposed to demonstrate their connection to the gay community but who are arguing that the gay community needs to be shown its second-class place in society. Lopez has been playing that schtick at the Witherspoon Institute, which sponsored the flawed Regneres paper claiming to study “gay parents.” Lopez contributed an anti-gay tract at the Witherspoon Institute’s web site praising Regnerus’s paper. Mainwaring is a NOM discovery, who wrote in opposition to same-sex marriage in a tea party newsletter and, more recently, in The Christian Post. Their brief includes all of the standard NOM talking points — watered down and polited up, like NOM might be when on its very best behavior — to try to make the impression that there is an undiscovered reservoir of gay people who oppose marriage equality:

Amici  come from a variety of families of origin, we have different religious beliefs and we differ among ourselves about whether legislature should redefine marriage to include same-sex couples. We all believe, however, that Americans ought not be labeled hateful bigots for opposing redefinition.

Our position is based on a shared commitment that marriage is society’s institutional expression of a child’s right to a mother and a father. We are not alone. The ongoing debate over marriage in France has prominently featured gay people who support keeping the understanding of marriage as a union of a husband and wife.

We, and they, believe gay people should be free to love and live as they choose but we also recognize that society has a right to express a rational preference for the kind of unions necessary to the survival of the whole society, and to the well-being of children. Some gay, lesbian and bisexual people will benefit from this preference as they marry a person of the opposite sex.

As you can well guess, Benkof and friends are utterly silent about how LGB people might “benefit from this preference.” They just kind of put that out there. The rest of the brief is basically 14 pages of concern trolling amidst a complete absence of actual facts. (Interestingly, they don’t even bother to mention the Regnerus paper.) It’s much like the Westboro brief that way. Birds of a feather…

Marriage update – North America

Timothy Kincaid

January 25th, 2013

It’s getting marriagey all over the place. And it’s also getting hard to keep track of what is going on where. So here is an update to help (which will probably be outdated by the time I hit “publish”).

North America:

Canada - Marriage has been equal since 2005.

Mexico - Marriage is equal in Mexico City, and marriages conducted there are recognize throughout the nation. However, in December, the Supreme Court unanimously found that an anti-gay marriage law in Oaxaca was unconstitutional. Due to Mexico’s complicated legal system, this means that marriages are highly likely to eventually be legal throughout the nation, but the process requires that five same-sex couples in each state file an amparo (civil rights claim) and that the court issue the same ruling on each. It may take some time for the legality of the state by state process to catch up, but the reality is that any Mexican couple wishing to marry probably can, either immediately or through petition.

United States - Several locales provide or have provided marriage equally:

  • Massachusetts – 2005 2003
  • California – 2008, but rescinded that year
  • Connecticut – 2008
  • Vermont – 2009
  • Iowa – 2009
  • New Hampshire – 2010
  • The District of Columbia – 2010
  • New York – 2011
  • Washington – 2012
  • Maryland – 2012
  • Maine – 2013

In addition, two Native American tribes, the Coquille in Oregon and the Suquamish in Washington provide marriage equally to their members.

Current and upcoming movement on the marriage front includes:

* DOMA3 – several federal courts have found the federal prohibition on recognition of legally married same-sex couples – the Defense of Marriage Act, Section 3 – to be unconstitutional on several grounds. The Supreme Court of the United States has agreed to hear one case, Windsor v. the United States, a case in which Edie Windsor was assessed in excess of $300,000 in inheritance tax from her wife’s estate, a tax that does not apply to heterosexuals. On Tuesday, the special counsel for the House Bipartisan Legal Advisory Group (at the direction of House Speaker John Boehner) filed its arguments in defense of the law (I’ll try to get an analysis up soon). It argued that BLAG has standing to support the law, that only rational basis should apply to anti-gay discrimination, that the nation needs uniform recognition, and that states should be allowed to decline to offer equality if they so choose (thus, I assume, vetoing other states in the name of uniformity). Today Professor Victoria C. Jackson will, at the court’s request, filing a brief insisting that BLAG has no standing and on February 26th, Windsor’s team will present arguments as to why she should not be discriminated against. Oral arguments before SCOTUS will be on March 27th, and the Court will likely release it’s ruling in June. Whichever way it goes, it will probably only impact couples in states which allow marriage.

* Proposition 8 - this is the highest profile case, but it could end up having the least legal effect. In 2008, the California Supreme Court found the state’s law prohibiting same-sex marriage to be a violation of the state’s constitution. For several months, same-sex couples could legally marry, but in November the voters approved Proposition 8 by 52%, ending marriage equality in the Golden State. In May 2009, Ted Olson, one of the most prominent Republican attorneys and David Boies, one of the most prominent Democratic attorneys, teamed up to fight for the legal overturn of that proposition. In January 2010, though cameras were banned from the courtroom, the nation was captivated by the reporting about the case – a trial not only on the legality of the proposition but also on its merits. Federal Judge Vaughn Walker eventually found the proposition to violate the US Constitution on broad grounds. The Ninth Circuit Court of Appeals upheld the decision, but on much narrower grounds: that a state cannot provide a right to all citizens and then take it away from a select few. Last month the Supreme Court agreed to hear the appeal, but added the question as to whether the proponents defending the law (the Governor and Attorney General declined to do so) have standing. On Tuesday the proponents of the law filed their brief (I’ll try to get an analysis up soon). Olson and Boies have until February 21st to respond, and oral arguments will be on March 26th with a likely result in June. While the Court could find that the US Constitution guarantees marriage equality across the land, it could also choose to narrow its ruling to the unique issues of the case and only impact Californians.

* Rhode Island - on Tuesday, the House Judiciary Committee unanimously approved the marriage bill. The full House voted in favor today 51-19. However, the Senate is less certain. Although Rhode Island is virtually a single-party state (the Senate has 32 Democrats, 5 Republicans, and 1 Independent), the Senate President, Teresa Paiva-Weed, is an opponent to equality. She has said that she will allow a committee to hear the matter, but in times past she has made certain that committees were selected to prevent equality.

I have started a petition at Change.org to request that should Paiva-Weed obstruct or block the passage of this bill, that Rhode Island State Senators remove her from power. Please go sign this petition.

* Illinois - a marriage bill was submitted during the first week of the year in a lame-duck session. Due to difficulty in corralling members returning from holiday, the vote never took place.

After the new legislature was is session, the bill was reintroduced. Currently the status is a bit in limbo as the bill is yet to be sent to committee.

However, that does not mean that there is no excitement, just that it’s happening outside the legislature and in an unexpected arena. The GOP chairman has come out in favor of marriage, which has angered social conservatives in the state. Bit though they are demanding his resignation and threatening ouster, the party insiders are lining up behind the chairman. At the moment it seem like the prevailing position may end up, “we may not support equality, but we support those who do.” In any case, this latest public squabble serves our community well.

* Minnesota - fresh off a victory in turning back an anti-marriage bill in November, Minnesotans for All Families is fighting on and will present a marriage bill to the legislature next month. The political strategist who generaled the battle is staying on to finish the war.

Polls are breaking even in the state and the DFL (Democratic) party has a slim lead in each house, so they will have their work cut out for them. But I would be surprised if the state did not take some movement towards couple recognition.

* Colorado - supporters filed an everything-but-the-name Civil Unions bill which is pretty much guaranteed to pass. More than half of each house has signed on as sponsors. This is as far as that state can go at present, as there is a state constitutional ban on equality.

* Wyoming - out of pretty much nowhere and flying way below the radar, lesbian Sen. Cathy Connolly has file both a domestic partnership bill and a marriage bill. Both have significant Republican support.

They may not be attracting much buzz on these bills due to party power; Republicans dominate both houses by overwhelming numbers. But Wyoming Republicans are traditionally pretty libertarian in their thinking and local papers are mostly quoting the bills’ Republican cosponsors. It may be early yet, but so far there doesn’t appear to be any visible organized opposition. I would not be altogether shocked if one of the bills passed or, at least, got a decent vote.

* New Jersey - the legislature of this state has already passed a marriage bill which was vetoed by the governor. However there are the paths to equality that might be achievable.

One is to take it to the people. But though a supporter brought such a bill, it was quickly dismissed due to the inherent insult of voting on a minority’s civil rights. (Personally, I’d rather win at the polls that fight over whether its an insult to do so.)

The second path, the one favored by equality leaders in the state, is to continue building support one by one until we have the numbers to override a veto. That would require substantial Republican support and this would be held off until after the next primary to minimize conservative backlash.

The third possibility doesn’t appear likely, but it shouldn’t be written off. Governor Chris Christie is a politician, and politicians are susceptible to evolution.

Christie made his mark in the Republican Party by being hard nose on fiscal issues but being more progressive on social issues. He was the poster boy for supporting civil unions, a position that made him seem ahead of the curve. As the Party moves away from anti-gay hostility, he may find it necessary to move as well. It’s not a bet I’d take, but it’s not outside the realm if possible for the Governor to hold to his views but still find some way to allow marriage to become law.

* Hawaii - I’ve no idea why marriage hasn’t already become law.

I think it can be hardest sometimes in states in which one party dominates. In mega-red states, we have little hope (though i just made a case for Wyoming). But in all-blue states, its not always much better. There’s no reason for Democrats to show the voters the difference between them and Republicans, so they fell less pressure to live up to their potential.

I’m sure I’ve missed some state in there. And, of course, you have to always expect that something completely unexpected will happen.

Tomorrow I’ll try to provide an update for Europe and South America.

UPDATE:

Yesterday, a state representative in Hawaii filed a bill for marriage equality. She had no cosponsors. Also yesterday, 15 representatives filed a bill calling for a constitutional amendment banning equality. It was also introduced in the senate. Additionally, a state senator filed a pair of ‘take it to the people’ bills which would have voters choose to either allow or ban marriage in the constitution (he’s an opponent of equality). All in all, it looks dire for marriage in Hawaii.

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.

Revisiting standing

A Commentary

Timothy Kincaid

December 10th, 2012

Some on-site discussion about the standing decision suggests that we revisit this issue. Here’s the background:

When Perry v. Schwarzenegger was decided for the plaintiffs (overturning Proposition 8), the Governor and Attorney General accepted the decision. They did not do so as Arnold and Jerry, but as the democratically elected representatives of the people of the State of California.

This put two democratic decisions at conflict: the people elected Schwarzenegger and Brown to act on their behalf, and the people voted for Proposition 8. But the elected representatives were choosing not to fully support the proposition for which the people voted.

This presented a problem for the Ninth Circuit Court of Appeals. Precedent suggested that unless the state had a provision for appointing an appellant other than the named defense, then there was no standing for appeal. Yet those who supported the Proposition were arguing that politicians were defying democracy.

The Ninth Circuit punted. They asked the California Supreme Court whether California law had a provision by which someone other than an elected representative could represent the state.

The California Supreme Court were worried that the will of the people in a direct vote might be somehow thwarted by their elected representative choosing not to appeal the court’s ruling. They saw this in terms of a greater threat: that politicians would torpedo voter initiated controls on their elected officials thus neutering the whole initiative process.

Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state‘s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.

But, as I see it, their ruling has four possible flaws.

First, if there is such a thing as “legislating from the bench”, this is it. They did not point to any statutes, code, or even the legislative will behind such. Rather they found “logic” and “reason” to be the factors under consideration. This was entirely an outcome driven conclusion.

Second, their decision can be seen as a stretch. It does seem reasonable to state that an initiative supported by popular vote must have a defense. But to say that an initiative stands apart from any other state interest and deserves appeal, whether with the support or opposition of an elected official, seems to be an answer that was driven too specifically by the emotions and through the prism of this very controversial moment.

Suppose that the voters of California supported an initiative that was endorsed by the Governor and Attorney General. And suppose that they fiercely defended the initiative in federal court only to be informed, in no uncertain terms and with unquestionable precedent and the weight of legal consensus, that the initiative was a violation of the US Constitution. Do they then have no right to accept the ruling? This ruling would suggest that no party ever has the right to any decision other than in favor of appeal.

The third possible flaw with the California ruling was that it was based on the presumption that the people of the state wanted the proposition to be supported on appeal. In protecting the will of the people, it presupposes the will of the people.

It might seem logical that the people want endless appeals. After all, they voted for this initiative. But that is not by necessity always true. It is also possible that the people of the state of California voted against same-sex marriage but, upon finding that it violated the US Constitution, accepted that decision and wished to move on with their lives.

Fourth, and perhaps the most questionable, is that the California Supreme Court selected who would be assigned standing in cases of this nature. Without any legislative or constitutional language suggesting that proponents – as opposed to an advocate or elected official or anyone at all – had some special advantage, the court just pointed and said “them”.

There is logic to the selection, up to a point. After all, as proponents for the bill, they might in this case be assumed to be best equipped to defend it.

However, this is a wild assumption. I’ve known a number of initiatives that received support from voters but whose proponents were loons. Sometimes the people can endorse an idea without for a moment endorsing the person who proposes it. And if there was a group less representative of the voters of California than the proponents of Proposition 8, I’d be hard pressed to find them.

But, nevertheless, the Ninth Circuit leaped on the opportunity not to make that decision and accepted the guidance of the California Supreme Court. Who better to direct as to who would represent the state?

But that does not mean that the Supreme Court of the United States will go along with that decision. Just as the California Supremes found a necessity of protecting the rights of the people from their elected representatives, the US Supremes may feel a need to protect the rights of the people from their unelected judiciary’s creative finding.

Or the SCOTUS may find that states may assign such lunatics as they like to their defense and through whichever means they prefer. At this point we don’t know.

But the decision to accept Perry AND to discuss standing indicates that the court wishes to rule on the matter one way or the other. And this ruling will greatly clear up what is an increasingly unclear area of federal law.

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):

12-307: UNITED STATES V. WINDSOR, EDITH S., ET AL.

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. 

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