DOMA - struck down

[Grim Reaper]

Supreme Court strikes down DOMA; rules it interferes with states, ‘dignity’ of same-sex marriages

The Supreme Court released two major decisions expanding gay rights across the country on Wednesday as hordes of cheering demonstrators greeted the news outside. The justices struck down a federal law barring the recognition of same-sex marriage in a split decision, ruling that the law violates the rights of gays and lesbians and intrudes into states' rights to define and regulate marriage. The court also dismissed a case involving California's gay marriage ban, ruling that supporters of the ban did not have the legal standing, or right, to appeal a lower court's decision striking down Proposition 8 as discriminatory.

The decision clears the way for gay marriage to again be legal in the nation's most populous state, even though the justices did not address the broader legal argument that gay people have a fundamental right to marriage.

The twin decisions throw the fight over gay marriage back to the states, because the court ruled the federal government must recognize the unions if states sanction them, but did not curtail states' rights to ban gay marriage if they choose.

Justice Anthony Kennedy, the court's conservative-leaning swing vote with a legal history of supporting gay rights, joined his liberal colleagues in the DOMA decision, which will dramatically expand the rights of married gay couples in the country to access more than 1,000 federal benefits and responsibilities of marriage previously denied them.

"The avowed purpose and practical effect of the law here in question 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," Kennedy wrote of DOMA. He concluded that states must be allowed by the federal government to confer "dignity" on same-sex couples if they choose to legalize gay marriage. DOMA "undermines" same-sex marriages in visible ways and "tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition."

Eighty-three-year-old New Yorker Edith Windsor brought the DOMA suit after she was made to pay more than $363,000 in estate taxes when her same-sex spouse died. If the federal government had recognized her marriage, Windsor would not have owed the sum. She argued that the government has no rational reason to exclude her marriage (she and her late partner, Thea Spyer, had been married since 2007, and together for more than four decades) from the benefits and obligations other married couples receive.

DOMA was signed into law by President Bill Clinton in 1996, and prevented the government from granting marriage benefits in more than 1,000 federal statutes to same-sex married couples in the 12 states and District of Columbia that allow gay marriage.

With this decision, Kennedy furthers his reputation as a defender of gay rights from the bench. He authored two of the most important Supreme Court decisions involving, and ultimately affirming, gay rights: Lawrence v. Texas (2003) and Romer v. Evans (1996). In Romer, Kennedy struck down Colorado's constitutional amendment banning localities from passing anti-discrimination laws protecting gays and lesbians. In Lawrence, Kennedy invalidated state anti-sodomy laws, ruling that gay people have a right to engage in sexual behavior in their own homes free from the fear of punishment.

Legal experts said the DOMA decision lays the foundation for a future Supreme Court ruling that could find a broader right for same-sex couples to marry.

The decisions mark the first time the highest court has waded into the issue of same-sex marriage. Just 40 years ago, the Supreme Court tersely refused to hear a case brought by a gay couple who wanted to get married in Minnesota, writing that that their claim raised no significant legal issue. At the time, legal opinions often treated homosexuality as criminal, sexually deviant behavior rather than involuntary sexual orientation. Since then, public opinion has changed dramatically on gay people and same-sex marriage, with a majority of Americans only just recently saying they support gay unions. Now, 12 states representing about 18 percent of the U.S. population allow same-sex marriage. With California, the percentage of people living in gay marriage states shoots up to 30.

With the Prop 8 decision, the Supreme Court refused to wade into the constitutional issues surrounding the California gay marriage case, dismissing the Proposition 8 argument on procedural grounds. The legal dodge means a lower court's ruling making same-sex marriage legal in California will most likely stand, opening the door to marriage to gays and lesbians in the country's most populous state without directly ruling on whether gay people have a constitutional right to marriage.

California voters passed Proposition 8 to ban same-sex marriage in 2008, after 18,000 same-sex couples had already tied the knot under a state Supreme Court decision legalizing gay marriage. A same-sex married couple with children, Kris Perry and Sandy Stier, sued the state of California when their six-month-old marriage was invalidated by the ballot initiative. They argued that Proposition 8 discriminated against them and their union based only on their sexual orientation, and that the state had no rational reason for denying them the right to marry. Two lower courts ruled in their favor, and then-California Gov. Arnold Schwarzenegger announced he would no longer defend Proposition 8 in court, leaving a coalition of Prop 8 supporters led by a former state legislator to take up its defense.

Chief Justice John Roberts joined with Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan to rule the defenders of Prop 8 did not have the standing to defend the ban in court. The unlikely coalition of liberals and conservatives argued that the Prop 8 supporters could not prove they were directly injured by the lower court's decision to overturn the ban and allow gay people to marry.

Same-sex marriage will most likely not be immediately legal in California, since the losing side may be given a few weeks to petition the courts.

The Prop 8 case was argued by two high-profile lawyers, Ted Olson and David Boies, who previously faced off against each other in Bush v. Gore. Olson, a conservative and Bush's former solicitor general, and Boies, a liberal, have cast gay marriage as the civil rights issue of our time.

Boies said on the steps of the Supreme Court Wednesday that the court had shown gay marriage does not harm society. "Today the United States Supreme Court said as much," Boies said. "They cannot point to anything that harms them because these two love each other.”

President Barack Obama also reportedly called Chad Griffin, the president of the Human Rights Campaign gay rights group, to congratulate him on the legal victory. "We're proud of you guys, and we're proud to have this in California," the president said, according to audio on MSNBC.

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

Olson made the argument that gay marriage should be a conservative cause in a recent interview with NPR. "If you are a conservative, how could you be against a relationship in which people who love one another want to publicly state their vows ... and engage in a household in which they are committed to one another and become part of the community and accepted like other people?" he asked.

The Bipartisan Legal Advisory Group (BLAG), a coalition of mostly Republican House lawmakers, defended DOMA since the Obama administration announced they believed the law was unconstitutional in 2011. (Chief Justice John Roberts criticized the president for this move during oral arguments in the case, saying the president lacked “the courage of his convictions” in continuing to enforce the law but no longer defending it in court.)

"While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances," House Speaker John Boehner (R-OH) said in a statement. "A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman."

States can still refuse to allow same-sex marriage, but now the federal government must abide by the states that do allow same-sex marriage.

[Sue U]

Interesting line-up of the justices in Hollingsworth v. Perry, which was decided not on whether Prop 8 was constitutional but on whether the Prop 8 supporters had the legal capacity (standing) to pursue the appeal, since the State of California had decided not to defend the law and it was thrown out by the trial court. Roberts wrote the opinion, with Scalia, Breyer, Ginsburg and Kagan signing on, saying there was no procedural basis to hear the appeal, with the result being that the Prop 8 marriage restriction remains dead and now Californians will have to gay-marry their dogs in polygamous Muslim relationships. Kennedy wrote the dissent, with Sotomayor, Alito and Thomas signing on, saying the Court should just go ahead and decide the case on the constitutional merits. I truly wonder what the result would have been (and the break-down of votes) had the Court met the issue head-on. The in-chambers squabbling to get to this result will make for a fascinating story.

[Long Run]

It does seem inconsistent that a majority thought they had the authority to decide Windsor but not Hollingsworth. In both cases, the government that was supposed to defend the law chose not to, meaning there is no actual dispute. I still think it is an avoidance of duty to not defend duly adopted laws, even if the current administration currently disagrees with the law.

With the ruling in Windsor that it violates equal protection to deny federal tax and other benefits to same sex married people, it is just a small step to arrive at the same conclusion for states and same sex marriage will be required. The lip service in the opinion given to the traditional right of state governments to define marriage is overwhelmed by the reasoning that DOMA created second-class citizens and thereby violated equal protection. Under this reasoning, States that do not provide for same sex marriage are similarly creating second class citizens and similarly violate equal protection.

[Lord Jim]

Sue, you're right, that's a very unusual 5-4 vote...

I doubt there's another single major case where you would see that line up in a 5-4 decision...

That suggests to me that the vote on this broke down more along judicial philosophy grounds, then on ideological ones....

[Lord Jim]

I truly wonder what the result would have been (and the break-down of votes) had the Court met the issue head-on.

The Court could have accepted the standing and still have issued a narrow "California only" verdict....

They could have issued a ruling based on the fact that California, once having established this right, could not withdraw it...

That would have had no effect on any other state, but it would have opened a larger can of worms that no majority on The Court was apparently prepared to have opened over this case...

[Lord Jim]

The Court also could have denied standing in DOMA..

But that would have created a really big separation of powers issue, since it was The House Of Representatives, which acted as one branch of the government, (that had passed DOMA) making the appeal...

The Court chose not to get into the weeds over that...


What The Court has basically said is this:

"We're not going to undo anything that the States have decided, and we're going to make federal law conform to State Law..."

"But we are not prepared to make a "Loving" type decision on this; you will have to address this state by state"

[rubato]

The Republicans lose (they funded the DOMA defense), Antonin Scalia makes a fool of himself. Not a bad day:

http://www.slate.com/blogs/weigel/2013/ ... _bans.html

By general agreement, the strangest read in the United States v. Windsor decision—the one that neuters the Defense of Marriage Act—comes at the start of Antonin Scalia's dissent.

(Scalia) 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 legislation. 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.

This comes literally 24 hours after the court really did invalidate legislation, nixing Section 4 of the Voting Rights Act. That law had been passed again in 2006; DOMA had been passed in 1996. No one who'd voted for the VRA had come to renounce his/her vote, but scores of representatives had apologized for DOMA. Scalia's not making sense, unless you read this as a cry for help from someone watching his colleagues validate social mores he deeply disagrees with. That's all over Anthony Kennedy's decision:

They punted on prop 8 but on many grounds I would prefer the voters to overthrow it so that it can be a positive expression of the will of the people of California to treat Homosexuals with fairness and dignity.


yrs,
rubato

[Lord Jim]

The Republicans lose (they funded the DOMA defense), Antonin Scalia makes a fool of himself. Not a bad day:

Now that's funny...

It's like watching a screaming baboon in a nature special...



My God, what an ignoramus...

That's our rube...

[Andrew D]

Congressional Republicans did spend millions of dollars to defend DOMA.

Scalia did make an ass of himself by describing the provisions of the Voting Rights Act as "racial entitlements".

But other than that, Lord Jim is, as always, spot on.

[Lord Jim]

But that would have created a really big separation of powers issue, since it was The House Of Representatives, which acted as one branch of the government, (that had passed DOMA) making the appeal..

Laying the whole gay rights thing aside, I think what's gone on here raises some troubling questions as a general principle...

If the executive branch of government, (A Presidential Administration, or a Governor on a state level) chooses not to defend a court challenge against a duly and legally constituted law, does that mean that the Executive can get rid of any law he or she doesn't like, simply by not appealing a lower court ruling against it?

Can the Executive say:

"I don't like this law, and I'm glad the lower courts ruled against it. So even though it was passed overwhelmingly by the legislature, (or in a referendum) none of that matters, because if I and the Attorney General don't appeal on behalf of the state we win automatically because no one else has standing"...

[Sue U]

If the executive branch of government, (A Presidential Administration, or a Governor on a state level) chooses not to defend a court challenge against a duly and legally constituted law, does that mean that the Executive can get rid of any law he or she doesn't like, simply by not appealing a lower court ruling against it?

Can the Executive say:

"I don't like this law, and I'm glad the lower courts ruled against it. So even though it was passed overwhelmingly by the legislature, (or in a referendum) none of that matters, because if I and the Attorney General don't appeal on behalf of the state we win automatically because no one else has standing"...

Yes, but that's the entire point of judicial review -- to act as a check on majoritarian action that conflicts with constitutional principles. The state shouldn't be forced to defend a law that both it and a reviewing court have determined is unconstitutional, running up taxpayer expenses in a futile legal campaign; nothing forces anyone to appeal an adverse decision. (Must every case be prosecuted through to a Supreme Court determination? That would be absurd.) The initial challenge to a law must be brought by someone who has actually suffered some identifiable harm to a protected interest -- that is the issue that is being litigated, not whether that harm was the will of the people as expressed by either referendum or the Legislature.

[Lord Jim]

that's the entire point of judicial review -- to act as a check on majoritarian action

Yes, but with this approach there is no proper, full judicial review...

Just an arbitrary decision by the Executive vacating majoritarian action...

(Must every case be prosecuted through to a Supreme Court determination?

Of course not.

But when you're talking about something as fundamental as the Constitutionality of a law duly and legally instated by a state or the federal government, then yes that determination should obtain.

Determining the Constitutionality of laws passed by state legislatures, (or adopted as laws through the legal referendum process of a state) or the Congress, is one of the primary things we pay them to do.

It's why we pick up their robe dry cleaning bill...

[Long Run]

The state shouldn't be forced to defend a law that both it and a reviewing court have determined is unconstitutional,

There are cases that might fit this description, where the unconstitutionality of a law is obvious. These two cases were not this type of case. DOMA Section 3 and Prop 8 were both very close cases. It was a clear refusal of duty to not defend these laws by the executive. Every year, the executive of state and federal governments defend laws they disagree with because that's part of the job they sign up for. It really is that simple. Their refusal to do their job led to exactly the opposite of a allowing the courts to decide on the merits (in the Prop 8 case, the majority agreed there was no dispute and hence no basis for the court to get involved; whereas in the DOMA case, a majority said they could decide the merits because Congress could defend the law).

And go ahead and bust on Scalia, but in yesterday's rulings he was consistent in his position that since the executives chose not defend the respective laws, there was no dispute and no case.

[Lord Jim]

This looks fairly straight forward to me:

I (Governor's name) do solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies foreign and domestic, that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California, that I take this obligation freely without any mental reservation or purpose of evasion and that I will well and faithfully discharge the duties upon which I am about to enter.

http://en.wikipedia.org/wiki/Governor_of_California

Seems to me that he, (and Schwarzenegger before him) clearly violated their oaths by failing to support and defend the Constitution of The State Of California...(Prop 8 was a duly passed Constitutional amendment, making it a part of the state Constitution)

I want to make clear that I'm not going into this because I've got a burr up my butt about gay marriage...

It's the larger issue I find interesting...

Moving on to a totally different digression topic...

My best friend from high school is gay, and he lives out here, (I believe I may have mentioned this before) and he wants me to be The Best Man at his wedding.(as he was at mine...)

I've got some issues with it, but I'll probably do it... he's been a part of our life out here for a number of years, (as has his Significant Other, who he's been with for more than 20 years) Tati is very fond of him... Even though he's a devout Atheist, he's her Godfather...

As contemptuous as he is of religion in general and Christianity in particular, (and Catholicism really in particular) he nevertheless fulfilled that role when I asked him because of our friendship...

So now he's told Tati that she can be The Flower Girl, but she wants to do more than that, and she's really into it...

She's helping him plan the thing; he's already reserved a location, but she's making calls to florists, and caterers and DJs...to help get the thing set up...(that doesn't bother me at all; 14 years old and wants to learn how to be an event planner... there are worse ways she could spend her summer vacation... )

She also thinks it would be really nice for Jimmy to be The Ring Bearer...

Jeff has not broached that topic with me...(He's not Jimmy's Godfather, Roman Craig is)

I don't know, that may be a bridge too far...

This is really a lot for me to process...

[Big RR]

Jim--in your discussion of the constitution, who are the "enemies" it needs to be defended against--those challenging the (US) constitutionality of the proposition/amendment. I would imagine that the California Constitution recognizes that California is part of the US and its laws are subject to US Constitutional requirements, so the enemies could just as easily be those attempting to thwart the statute on the public after the US courts (albeit not the Supreme Court), including the Appellate court for the circuit including California struck it down.

I do share your concern about how an executive can arbitrarily choose to end an appeal, but then this is what executives are paid to do, use the assets they have in the best interest of their constituency; they will be voted out if the constituency disagrees with their decisions. But I don't think it's a fight against any enemies of the constitution; just people expressing their opinions and seeking to have them confirmed.

[Lord Jim]

I think you're looking at the wrong part of the oath by focusing on the "enemies" part there, Big RR...

The "enemies" part is one section....(Though an argument can be made on "support and defend")

The next part is:

I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California,

If you are not opposing legal challenges to the Constitution of the state, (the amendment in this case) how can you be said to bearing "true faith and allegiance" to it? Regardless of your personal feelings towards the portion of the Constitution involved.

It seems to me that any Governor of California, who declines to use his office to defend a part of that Constitution, (not just any law; a part of the state Constitution) given the wording of the oath, is in violation of his oath of office, no matter how popular that decision may be.

[Gob]

Does this thread also come in English?

[Big RR]

Jim--ok, but again, does one stop bearing "allegiance" to the constitution by refusing to appeal a ruling confirming the district court's ruling that the amendment is unconstitutional under the supreme law of the land; must every case go to the Supreme Court? I don't think so. The state had its day in court-- 2 days actually--and lost. Must the executive waste valuable resources to bring the issue to the supreme court? And what if the state lost there; must the executive then begin a campaign to amend the US constitution so the proposition is permitted to remain? I think the state constitution is better served by giving the executive in how to commit state resources--that's what the executive is there for.

[Lord Jim]

Does this thread also come in English?

Yes, I understand this discussion may be a bit challenging for those of Welsh extraction...

So as an alternative I offer something that might be more up their street:

(It's actually The Pet Goat...an historical error that I fear will go forever uncorrected....)

THE PET GOAT

A girl got a pet goat. She liked to go running with her pet goat. She played with her pet goat in her house. She played with her pet goat in her yard.

But the goat did some things that made the girl's dad mad. The goat ate things. He ate cans and he ate canes. He ate pans and he ate panes. He even ate capes and caps.

One day her dad said, "That goat must go. He eats too many things."

The girl said, "Dad, if you let the goat stay with us, I will see that he stops eating all those things."

He dads said, "We will try it."

So the goat stayed and the girl made him stop eating cans and canes and caps and capes.

But one day a car robber came to the girl's house. He saw a big red car near the house and said, "I will steal that car."

He ran to the car and started to open the door.

The girl and the goat were playing in the backyard. They did not see the car robber.

A car robber was going to steal her dad's car. The girl and her goat were playing in the back yard.

Just then the goat stopped playing. He saw the robber. He bent his head down and started to run for the robber. The robber was bending over the seat of the car. The goat hit him with his sharp horns. The car robber went flying.

The girl's dad ran out of the house. He grabbed the robber. "You were trying to steal my car," he yelled.

The girl said, "But my goat stopped him."

"Yes," her dad said. "That goat saved my car."

The car robber said, "Something hit me when I was trying to steal that car."

The girl said, "My goat hit you."

The girl hugged the goat. Her dad said, "That goat can stay with us. And he can eat all the cans and canes and caps and capes he wants."

The girl smiled. Her goat smiled. Her dad smiled. But the car robber did not smile. He said, "I am sore."

THE END

Now if that's still too challenging for you Taffys, we could do Hop On Pop....

[Long Run]

Does this thread also come in English?

I think you may need to start a thread "As long as I live I'll never understand American government". What part of the discussion is not making sense? Fwiw, most of the discussion is procedural, who should decide the issue of gay marriage and how that should be done; and is not dealing with the merits of gay marriage.