Box Turtle Bulletin

DOMA SECTION 3 IS DEAD!

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

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

DOMA’s Doom Appears Likely

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:

 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.

The most powerful testimony in favor of equality

Today, former GOP Representative Lynne Osterman testified in favor of marriage equality. Her testimony is, in my opinion, the most powerful argument that can be made for why you must do what is right.

If you watch no other testimony on marriage, watch this.

300 Employers Urge SCOTUS to Declare DOMA Unconstitutional

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

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.

Boehner’s DOMA Pricetag Reaches $3 Million

The House’s so-called Bipartisan Legal Advisory Group (BLAG) has upped the cap for their defense of the Defense of Marriage Act (DOMA) to a cool $3 million. The reason that I’m calling BLAG the “so-called Bipartisan” group is that only one party is driving this train and keeping the other party completely out of the loop. On January 4, the House adopted its rules for the 113th Congress, parts of which authorizes BLAG to intervene in other cases challenging DOMA and to speak for the House before the Supreme Court. At that point, the disclosed price tag was still $2 million, a cap that was revealed in December.

But today it was revealed that the cap was secretly raised by a staggering 50% to $3 million soon after the rules were adopted on January 4. After news broke about the increase, House Minority Leader Nancy Pelosi (D-CA) and Minority Whip Steny Hoyer (D-MD), the only two Democratic members of the group, responded in a letter to House Speaker John Boehner (R-OH):

“We wish to strongly reaffirm our objections to the repeated actions by the Republican leadership to secretly and dramatically increase the contract between the House and outside counsel in arguing to uphold the discriminatory Defense of Marriage Act (DOMA) in more than a dozen cases,” reads the letter from House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.).

“It is the height of hypocrisy for House Republicans to waste public funds in one breath then claim the mantle of fiscal responsibility in the next,” the letter continues. “With Republicans willing to take our economy and our country to the brink of default in the name of deficit reduction, there is simply no excuse for any Member of Congress to commit taxpayer dollars to an unnecessary — and futile — legal battle.”

House GOP leaders took over the defense of DOMA in Federal Court last year after the Justice Department determined that the law merited heightened scrutiny and was unconstitutional under that standard.

DOMA Repeal Picks Up GOP Support

I missed this bit of news, coming as it did late on Friday afternoon before Christmas, but Rep. Richard Hanna (R-NY) announced that he would sign on as co-sponsor for the  Respect for Marriage Act, the proposed bill to overturn DOMA. Hanna, who was just elected to a second term, joins Rep. Ileana Ros-Lehtinen (R-FL) in backing DOMA’s repeal.

Meanwhile, a spokesperson for Rep. Charlie Bass (R-NH) confirmed that he has become the third Republican to sign on as co-sponsor of a bill to repeal the Defense of Marriage Act. Unfortunately, he waited until after he lost his bid for re-election last month to Democrat Annie Kuster. So, you know, whatever. Bass voted for DOMA in 1996.

DOMA gets a funding boost

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

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

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

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

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

But it is funny to watch.

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

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

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

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

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

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

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

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

A profile on Edie Windsor

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

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

Do read it.

Supreme Court to Hear Windsor Challenge to DOMA

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.

SCOTUS deliberates

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

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

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

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

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

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

The Daily Agenda for Friday, November 30

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

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

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

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

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

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

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

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

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

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

• Golinski vs. OPM. It is currently before the Ninth Circuit Court of Appeals, but the Justice Department asked the Supreme Court to consider the case. The lower court found Section 3 unconstitutional.
• Pedersen v. OPM. It is currently before the Second Circuit Court of Appeals. In August, Pedersen asked the Supreme Court to review the case before the Second Circuit decides it so it can be heard together with Gill, and Mass v. HHS. The lower court in this case also found Section 3 unconstitutional.

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

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

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

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

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

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

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

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

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