Box Turtle Bulletin

Marriage update – North America

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 So here is an update to help (which will probably be outdated by the time I hit “publish”).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• California – 2008, but rescinded that year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

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

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

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)

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

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

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

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

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

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

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

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

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

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

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

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

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

Another Republican judge weighs in on marriage

One of the things one regularly hears during election season are “Don’t vote for that Democrat, he’ll appoint pro-homosexual judges” and “Don’t vote for that Republican, she’ll appoint anti-gay judges.” But such simplistic assumptions are seldom accurate.

And in the fight for marriage rights in the courts, more often than not the judges finding that gay people are entitled to equal treatment under the law have been appointed by a Republican president or are themselves Republicans, sometimes quite conservative ones. And in this latest ruling – one that goes further than any to date – this pattern holds (LATimes)

“Homosexuals have suffered a history of discrimination,” Chief Judge Dennis Jacobs said for a 2-1 majority. And while gays have been winning political victories, he said, they are still subject to many discriminatory laws. Jacobs said courts should view all laws that discriminate based on sexual orientation with the same skepticism accorded to laws that discriminate based on gender.

Jacobs, who has a generally conservative reputation, was appointed to the court by former President George H.W. Bush. He was joined by Judge Christopher Droney, an appointee of President Clinton. In dissent, Judge Chester Straub, another Clinton appointee, said judges should not change the traditional definition of marriage. If it is to be changed, he wrote, “I believe it is for the American people to do so.”

It isn’t just disabusing us of silly memes that makes me appreciate this trend; I also think that it provides us with both a stronger position and greater hope. For one thing, it silences the screams about “liberal activist judges” and gives our neighbors assurance that our victories aren’t being awarded because of partisan legislation from the bench. Bipartisanship goes a long way towards cultural acceptance of judicial decisions.

But an even more important reason is the message it send to the Supreme Court. As Republican judges address this issue, they do so from a particular perspective with particular viewpoints on what the Constitution means. And when they write opinions, they do so utilizing language that reflects these perspectives and viewpoints. And as it is believed that the Supreme Court justices which will need to be swayed in our favor are all Republicans, these opinions can speak to them in the terms which best plead our case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court Declines Prop 8, DOMA Cases For Now

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

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

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

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

Someone dropped a house on DOMA – again

Okay by now it’s clear that DOMA is pretty much dead and it just doesn’t know it yet.

In the case of Edie Windsor, Federal Judge Barbara S. Jones has now informed the government that it cannot tax Windsor differently than any other widow. In Edie’s case, the ‘gay tax’ charged to her was $363,053.

When Edie’s wife died, Edie inherited her wife’s estate. Now normally, when a spouse inherits no inheritance tax is assessed. However, due to DOMA, gays get special treatment. We get the special right to pay more taxes than straight people (funny, anti-marriage conservatives never talk about this).

But Judge Jones said no. Nope. Nada. Nosireeee. No brainer.

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

Which makes this about, oh idunno, the fifth time that a Federal Judge has said that DOMA violated the US Constitution. And after that many whacks in the head by flying floorboards, it’s dead. Grab those shoes and look out for some really angry flying monkeys.

New York’s new role

One of the consequences of marriage equality that doesn’t get much attention in the debate is the way in which it impacts a state’s involvement in lawsuits. And yet, this is no small matter.

States have rights. Constitutionally, our nation has divided its powers between issues of national concern (such as defense) and issues of state autonomy (such as licensing of professionals). Family law, including the criteria for marriage, has been traditionally considered to be the purview of the state while the role of the federal government has been primarily limited in this area to interstate conflicts or civil rights protections.

But the Defense of Marriage Act (DOMA) is an exception. It presumes, in paragraph 3, that the federal government holds veto power over marriage and can – for any matter that impacts any federal program – replace the state’s criteria with its own. If the marriage criteria in Vermont doesn’t meet the approval of the Senator from Alabama or the Congressman from Mississippi, then by securing a bare majority of fellow legislators they can dictate to Vermont which of its citizens can be considered married for Social Security, taxation, and health care, and which are deemed by Alabama and Mississippi to be unworthy.

This encroachment into the territory of the states was likely in violation of the US Constitution from the start. But that didn’t really matter for so long as states were limiting marriage to opposite sex couples. Courts are not receptive to abstract victims or potential loss of theoretical rights; to present your case, you need to be an aggrieved party.

And when New York’s legislature enacted marriage equality, it became an aggrieved party. Having authorized same-sex marriages, the state not only assumed the burden of protecting these marriages, but became itself a victim of federal infringement through DOMA3, and assumed the burden of protecting itself.

Actually, New York is a bit unusual in that the state recognized – though through legal interpretation rather than legislation or judicial determination – out-of-state same-sex marriages prior to their vote. So there has been, for some time, a theoretical right (though perhaps not obligation) to protect such couples as were abiding in the state but married elsewhere. But the vote removed any ambiguity; marriage equality is now the public policy and interest of the state.

And so, New York State Attorney General Eric T. Schneiderman has begun to defend the state’s interests. In an amicus brief (pfd) filed in the case of Windsor v. United States, in which a widow was denied tax provisions granted to heterosexual widows, he said:

By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.

Schneiderman’s also objects to the discrimination of New Yorkers on the basis of sexual orientation and sex, and those objections are important. That is an obligation of a state and the brief is valuable in that matter. But Windsor’s lawyers can defend her interests and do so competently.

Where Schneiderman’s argument is invaluable is where it is unique, it’s defense of its own interests.

But DOMA departs from the tradition of federal respect for the States’ definition of marriage, flatly rejecting the definition of marriage in New York and five other States and thereby elevating the choices of some States above those made by other States. In doing so, DOMA threatens “the constitutional equality of the states [that] is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyne v. Smith, 221 U.S. 559, 580 (1911).

As Schneiderman implies, some State’s criteria for marriage is being applied, and it isn’t New York’s. To elevate Alabama’s laws to a national status and impose them on New York is precisely the sort of concern that consumed the constitutional convention and the US Constitution was written specifically to negotiate to what extent the separate autonomous states would act as one. Even individual rights were an afterthought.

From that time forward, Congress could not grant itself authority over matters belonging to the states. These are matters of the states alone, and the role of the federal government, congressional or judicial, has been interstate disputes and protecting the rights of the individual against the state. But Congress overstepped its bounds, and New York has joined that small club of states who have a cause to complain.

This position echoes and reinforces the position taken by Martha Coakley, the Attorney General for the Commonwealth of Massachusetts, in Commonweath v. HHS. Her lawsuit also seeks to defend the rights of Massachusetts to define the criteria for marriage for its citizens.

Politically, this issue is an area in which our opponents are awkward and in conflict. Long loud advocates for states’ rights and federalism and smaller centralized government, Republicans are uncomfortable talking about DOMA and its provisions. It is quite one thing to deny equality to gay people but the idea of championing the usurpation of a state right by Washington threatens not only party rhetoric, but a core principle which many Republicans hold dear.

Which is perhaps one reason why you don’t hear much from Congress or from party leadership in defense of DOMA. The presidential candidates, especially those who seem to be counting on the presumed stupidity of their base, try to simultaneously appeal to anti-gay prejudice and states right advocates by babbling nonsense about “respecting the decisions of the states” and also “supporting a constitutional amendment”.

But outside of the social-issue focused religious conservatives, you don’t hear many people defending the merits of DOMA. Even John Boehner, who has taken up the task of defending the law, talks more in terms of letting the courts rather than the President decide the law’s constitutionality and speaks only in the abstract about the nature of the law or defense of its merits. And even Texas Governor Rick Perry, a strong opponent to gay rights in Texas, surprised some conservatives with his take: (AP)

“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, Colo. “That is their call. If you believe in the 10th Amendment, stay out of their business.”

Ultimately, there need be (and will be) a Supreme Court decision that finds that discrimination on the basis of sexual orientation by the federal, state, and other government is in conflict with the US Constitution. But now that more than ten percent of the nation’s citizens live with conflicting state and federal marriage criteria, it may be the violation of the Tenth Amendment upon which DOMA is decided.

Report: DOMA Law Firm Backs Out

Politico’s Ben Smith says that King & Sanders, the law firm retained by House Speaker John Boehner (R-OH) to represent the House in defending the Defense of Marriage Act in federal court, is extricating itself from its contact. K&S Chairman Robert D. Hays, Jr. issued a statement through its spokesman:

Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal.

In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.

K&S Partner Paul Clement was to lead the defense in the case. It’s not clear exactly which issues didn’t pass muster with the Chairman. But given what we’ve learned about the blanket gag order imposed on all K&S employees barring all advocacy for DOMA’s legislative repeal (an issue which is not germane to the case itself), it does appear that the contract was very poorly vetted.

UPDATE: Clement has announced his resignation from K&S, and will  join Bancroft PLLC, a small Washington-based firm with former Bush Justice Department official Viet Dinh. I would not be surprised to encounter another announcement saying Bancroft will take up the case instead.

House To Spend $500K To Defend DOMA

Paul Clement

House Speaker John Boehner (R-OH) has announced that he has contracted with a law firm to defend the so-called Defense of Marriage Act in court, in response to the Obama Administration’s announcement that they consider DOMA’s defense as requiring heightened scrutiny. Former Bush Administration U.S. solicitor general Paul Clement was tapped to defend DOMA on behalf of the GOP-controlled House to the tune of $500,000, funds which Boehner says he will strip from the Justice Department’s budget.  Clement is a partner at the D.C.-based office for the firm King & Spalding where he manages the national appellate practice. Clement has argued more than 50 cases before the U.S. Supreme Court.

Metro Weekly has looked into the contract Boehner signed with King & Spalding, which specifies the firm’s defense in Windsor v. United States.  That case was brought by Edith Windsor, the widow of Thea Spyer, who had to pay a $350,000 estate tax that she would not have had to pay had their Canadian marriage been recognized by the federal government. The contract sets a cap of $500,000 to defend DOMA in Windsor v. United States, but the contract has a provision which suggests that the cap can be raised. The contract does not authorize the hiring of outside experts without approval from the House. Metro Weekly noticed a non-discrimination clause in the contract:

It also is notable that the nondiscrimination clause in the contract states that King & Spalding “will not discriminate in its performance of this Agreement because of race, color, religion, sex, national origin, age, disability or any other prohibited basis.” Neither sexual orientation nor gender identity are included. This despite the fact that the firm clearly does include such categories in its own nondiscrimination policy.

DOMA is currently being challenged in at least twelve separate court cases around the country.

Boehner Announces Defense of DOMA

TPM reports that House Speaker John Boehner (R-OH) has issued a statement announcing that the House will intervene as a third party defendant in court cases challenging the constitutionality of the Defense of Marriage Act. TPM quotes from the statement:

“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law,” Boehner said in the statement. “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”

Of course, the president didn’t determine the law’s unconstitutionally unilaterally. The administration instead determined that they could not defend the law’s constitutionality based on the facts and heightened scrutiny. The administration also threw some bait in Boehner’s direction, pointing out that the House was perfectly within its rights to argue in court that that the law did not result in discrimination against LBGT couples. Boehner dropped the “only interested in the budget” charade to take the challenge. This should be fun.

The Hill reports that the action was taken based on a party line vote following a thirty-minute meeting, with Boehner joining House Majority Leader Eric Cantor (R-VA) and House Majority Whip Kevin McCarthy (R-CA) supporting the move. House Minority Leader Nancy Pelosi (D-CA.) and House Minority Whip Steny Hoyer (D-MD) voted no.