Posts Tagged ‘doma’

The United States Supreme Court issued an order earlier today granting certiorari in two important same-sex marriage cases. The scheduling order will come later, but it’s expected that oral arguments will take place in March 2013. Decisions are usually published in June, regardless of when the cases are argued, and for these cases it will likely be the end of June when we get the decisions.

In the California Proposition 8 case (HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.), the Ninth Circuit Court decision ruling that Prop 8 is unconstitutional is being appealed. (Prop 8 amended the California state constitution to ban same-sex marriage after it had already been legal in the state. There are currently 18,000 married same-sex couples in California.) In addition to the question presented by the petition, the Court has asked for briefing and arguments on the question as to whether the petitioners have standing to appeal.

The petitioners in this case are the Proposition 8 proponents, the organization which put the amendment on the state ballot and campaigned for its success. The state itself declined to defend the case, so the backers of the initiative stepped in to defend it. Their standing (right to defend in federal court) has been at question throughout the process.

At each previous step they were granted standing, but the foundation for that is shaky. The Supreme Court apparently feels that it’s an important separate question they want to address, along with the merits of the case itself.

The Windsor case (UNITED STATES V. WINDSOR, EDITH S., ET AL.) concerns DOMA, the federal Defense of Marriage Act. It is one of only two DOMA cases on appeal to the Supreme Court that has gotten as far as being ruled on by a federal circuit court. The others petitioning for cert have only made it through the federal district court level and are currently still on appeal at circuit courts.

While the deliberations on which cases to grant cert to are not made public, it’s likely that Windsor was chosen over the Gill v. OPM case because Justice Kagan had indicated her intention to recuse herself from the Gill case. The Windsor case allows the full court to hear and decide the case.

Like in the Prop 8 case, the Court increased the complexity of what is being argued by adding two questions it wants addressed in briefing and argument. One is whether the Supreme Court has jurisdiction in the case, and the other is whether BLAG (the House Republicans who are defending the case) have standing to do so.

The first of those two questions is the more interesting one, and the one less easily understood. Why wouldn’t the Supreme Court have jurisdiction? The question arises because the Department of Justice is the petitioner, even though the circuit court ruled in the DOJ’s favor and struck down DOMA. It’s unusual for the winner to appeal a decision.

At issue, from the DOJ’s point of view, is the fact that the executive branch of the federal government is still responsible for enforcing a law that it deems to be unconstitutional until it is struck down by the Supreme Court. The decision by the Second Circuit that DOMA is unconstitutional applies only to the states within the second circuit, so the DOJ is seeking a final high court opinion to settle the matter of constitutionality and enforcement once and for all.

Apparently the Supreme Court believes this point of jurisdiction under these circumstances is an important one to decide, in addition to the merits of the case itself.

The Court’s order can be read here.

Details about these cases and several others can be found at prop8trialtracker.com.


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As I’ve mentioned in the past, I’ve been following several court cases dealing with same-sex marriage over the last couple years. Aside from the Proposition 8 case from California, there are several DOMA (Defense of Marriage Act) challenges making their way through the courts.

At least one of them will likely be taken up by the Supreme Court in its next session. (The session starts in November and runs through June.) My prediction is that this time next year DOMA will be dead, declared unconstitutional by the Supreme Court.

There are several interesting aspects of these cases, primarily centering around equal treatment under the law and level of scrutiny due gay and lesbian American citizens. But there is another aspect that should be of interest to a broader range people. That topic is federalism.

For the entire history of the United States, domestic law has been the domain of the states, including regulating what constitutes a legal marriage and who can legally marry. The federal government has always accepted state definitions, allowing for differences from state to state. It didn’t matter that there was a lack of uniformity, if a marriage was legal in the state, it was legal for federal purposes.

In the case of DOMA, the federal government took the unprecedented action of overriding state authority.  Under DOMA, a same-sex couple can be legally married in the eyes of their state, but they become unmarried in the eyes of the federal government. The two spouses are considered legal strangers. Aside from the messy and precarious legal situations this engenders for individual couples, this constitutes a federal challenge to state sovereignty.

This is important to our nation as a whole, because if the US Congress is allowed to intrude in this area that is normally off limits, there is nothing stopping them from intruding elsewhere in the future. So putting aside equality considerations, it would be dangerous for the Supreme Court to allow DOMA to stand for this reason alone.

What is ironic and confounding is that maintaining state sovereignty is normally an issue of great importance to conservatives. Yet it’s mostly conservatives who are throwing away one of their key values in favor of their desire to impose their version of morality on the nation.

Three states (New York, Vermont, and Connecticut) have filed an amicus brief in the Windsor case that very nicely lays out the federalism concern. It’s excellent reading for anyone even the least interested in the topic, and quite educational. I highly recommend giving it a look.

If you’re interested in following the court cases and other equality issues,  I recommend bookmarking prop8trialtracker.com. They post frequent updates, and it’s convenient to get all the important information in one spot on the web.

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President Obama has been heavily criticized by many LGBT rights activists since taking office. A lot of queers helped make him President, including me. He made various campaign promises and there have been a lot of public statements that he has been much too slow in acting on them.

I’ve always felt kinda bad about that, that he was unnecessarily targeted too soon. It’s important to keep the pressure on of course, but I think people need to be pragmatic.

I’ve also felt kinda bad about voting for Obama, in the sense that by voting for him I was partly responsible for handing him an almost impossible task. During the 2008 campaign I despaired, thinking that no matter who was elected as President they’d be lucky in the extreme to come out of their term looking good. The Bush administration made a huge mess of this country and Americans have been expecting Obama to quickly clean it all up ever since. (Or what really grates my cheese, blaming him for problems that already existed when he took office!)

In that light I was very willing to be patient. Queer rights are immensely important to me. But I think it’s a bit self-centered to make them more important than issues that were of more immediate concern because of their critical nature to our country and to all Americans. I promised that I would only have fits and shout betrayal if nothing significant was accomplished by the end of Obama’s first term.

My patience and pragmatism is paying off. President Obama is coming through for us.

As one of his first acts in support of gay rights Obama extended what benefits were allowed under existing laws to same-sex partners of federal employees in June 2009. (DOMA prohibits some rights and benefits from being included.)

In April 2010 Obama directed the Secretary of Health and Human Services to require all hospitals that receive federal Medicare and Medicaid funding (which is most of them) to prohibit discrimination in visitation based on many factors, including sexual orientation and gender identity. This was in response to the tragic situation a lesbian couple faced in Florida where a dying woman’s partner and children were prevented from seeing her, despite all their legal documents.

After stating in the 2010 State of the Union address that he would do so, Obama helped with the final push for the repeal of the Don’t Ask, Don’t Tell policy in the military. He signed the legislation into law at the end of last year. On July 22nd he certified that the repeal requirements of the legislation have been met and starting on September 20th, 2011 queers will be able to openly serve in the United States armed forces.

In February of this year President Obama instructed the Justice Department to cease defending DOMA (the Defense of Marriage Act), citing as the reason that it is unconstitutional. There are several cases winding their way up through the courts right now, some or all probably headed for the Supreme Court. Obama could have just let things take their natural course, but instead he was proactive, taking a clear stand for equal rights.

On July 19th this year Obama endorsed the Respect for Marriage Act, which would repeal DOMA. This one is huge because it’s extremely rare for a President to endorse legislation that hasn’t been passed in one of the Houses yet. In this case it hasn’t even come out of committee, the first hearing was just held this last week.

Yes, it’s frustrating that Obama has not come out and clearly stated that he supports marriage equality. He praised the recent New York state law that grants same-sex couples the right to marry, but stopped short of endorsing same-sex marriage himself.

The pragmatic part of me understands that. He’s got an election year coming up. So I’m willing to put up with a little wishy washy political dancing around. Would Obama making that statement be worth the potential price of a socially conservative Republican replacing him?

In his two and a half years as President, Obama has done more for queer rights than any other President in history. We still have a long way to go, but Obama has done a lot for us and I thank him for that. Grassroots movements are vitally important, but it also takes the leadership of people in power at the top to truly effect change, both in terms of policy/laws and in terms of public opinion.


For a detailed listing of what the Obama Administration has done see this page at the HRC website.

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