Justin's Political Corner
Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.
— SCOTUSblog (@SCOTUSblog) March 27, 2013
Hooray!
The Supreme Court will today hear oral arguments in the case against the Defense of Marriage Act, the 1996 law that denies equal federal benefits to couples who are legally married under state law and also burdens families and the federal government.
The Congressional Budget Office estimates that DOMA increases the deficit by roughly$1 billion a year, and while that amount is small, striking it down would save far more than ending subsidies to NPR or some of the other “deficit reduction” ideas Republicans have pursued in the past.
Those savings would come from numerous sources. Tax revenues would rise by more than $400 million a year, and though costs on programs like Social Security and federal benefits would increase, costs for safety net programs like Medicare, Supplemental Security Income, Medicaid, and other programs would go down.
That’s significant, because the largest benefit from recognizing same-sex marriages comes from what it would do for individual couples and families. Same-sex couples aren’t allowed to file joint taxes, which prohibits them from claiming some tax credits and deductions that would benefit their families. They also aren’t eligible for spousal health, Social Security, or federal pension benefits, making it harder for some LGBT families to make ends meet. Older LGBT couples are more likely to live in poverty than married heterosexual seniors, which is why ending DOMA would reduce costs for programs like Medicaid and SSI — access to spousal benefits would lift many LGBT Americans out of poverty and off of the social safety net.
Striking down DOMA is important primarily to provide LGBT Americans equal protection under the law. But it’s also important because it will benefit the American economy by helping businesses, reducing the deficit, and lifting people out of poverty.
One day after considering whether states may ban gay marriage, the Supreme Court will hear oral arguments Wednesday on a separate case about whether the federal government may deny equal marriage benefits to same sex couples legally wed in their state.
The case involves Section 3 of the 1996 Defense of Marriage Act, which prohibits federal recognition of same sex marriage, thereby denying married gay and lesbian couples the tax, retirement and immigration benefits that straight couples are afforded.
Like opponents of California’s ban on gay marriage, opponents of DOMA say it’s invalid under the Constitution’s equal protection clause. And the case also provides justices an escape route to dismiss it without ruling on the merits. But DOMA may be met with more skepticism with this conservative-leaning Supreme Court because it clashes with states’ rights.
There are three possible outcomes to the case, according to legal scholars.
First, the Court could uphold DOMA by determining that the federal government has a legitimate interest in treating straight and gay couples differently. The would continue the status quo unless and until Congress repeals the law.
Second, the Court could strike down DOMA upon deciding that married same-sex couples are entitled to the same treatment as married opposite-sex couples. That would provide tax and retirement benefits to gay and lesbian couples and let Americans sponsor a gay partner from another country for legal permanent residency.
Third, the Court could conclude that the case lacks standing and send it back to the lower courts for a do-over. The case is unique in that the White House has refused to defend a federal law, leaving the task to House Republicans. If a majority of justices decide that the House majority is not a proper party to defend this, the Court could punt the decision.
As was the case on Prop 8, the likely swing justice is Anthony Kennedy, who has written the Supreme Court’s two key opinions in favor of gay rights. He appeared hesitant Tuesday to impose marriage equality on all states but gay rights advocates are confident that Kennedy will side with them and strike down the Defense of Marriage Act.
H/T: Sahil Kapur at TPM
Before oral arguments begin this morning in United States v. Windsor—the case challenging the discriminatory Defense of Marriage Act—check out this op-ed by HRC president Chad Griffin arguing that DOMA must be struck down once and for all:
PULLQUOTE: Gay and lesbian couples get married for…
Anti-LGBTQ rights/marriage equality crank case asshat Dana Loesch wrote on Fixed Noise (and former CNN colleague)’s Erick Erickson’s RedState blog today to peddle misleading lies about marriage equality:
I’ve no issue with same sex couples entering into contractual agreements with each other or sharing benefits (the military decisions should be made by those with the credit of service day in and day out, not civilian advocacy groups). Isn’t that the goal of this conflict? If so, to me, that’s an issue separate from marriage. In suing over “marriage” itself one is demanding that God change His definition of the union between a man and a woman. If recognition of status, ease with other contractual obligations, and other issues are the issues, why the need to force people of faith to alter recognition of God’s Word on the matter? The people may bend as reeds to lawfare, but God will not. Frankly, I see no point in being on any side other than God’s on any matter, and God is more small government than any player in the scene.
She believes in the so-called “marriage is between a man and a woman only” farce. A fine excuse to be a homophobe, Dana.
Loesch further distorts the truth on LGBTQ rights with her anti-marriage equality screed on RedState:
Really, this isn’t about gay rights. The left doesn’t give a damn about gay rights. Remember, it was the left that instituted Don’t Ask Don’t Tell and it was a Republican group that led the charge to repeal it. The left hasn’t done anything for the gay community except to offer it lip service and inaction. While leftist groups fight for “marriage equality” the Obama administration makes marriage an economic hit with horrible policy. You got bait and switched, leftists! No, the left cares nothing for gay rights, but they’ll pretend to if they can use the bloc as a wedge to pry the populace from the influence of the church. Why? because it’s easier to convince people that their civil liberties fall under the dominion of man, of government, if the church is portrayed as inept and anachronistic. This is the entire goal. Once man, sinful, awful man controls your rights, your existence as an individual ends and your life as a statist serf begins.
So no, “marriage equality” is emphatically nota conservative value or tactic. Anything where the solution is an invitation for government intervention should be viewed with utmost suspicion.
Really, Dana!? The left doesn’t give a damn about gay rights? Oh, yes, us leftists/progressives/civil libertarians care a lot about this issue, moreso than you. She also falsely accused the left of instituting DOMA, when it was the conservatives back in the 1990’s that forced it into law.
Also, the left has done FAR MORE than “lip service” to the LGBTQ community. If anything, it’s kooks like you and GOProud that do “lip service” to the LGBTQ community.
She even played the debunked “Christians have fewer rights” canard:
There are even more examples, some listed on this page, some not, as they are numerous. Pastors in Canada are already facing lawsuits for simply preaching about marriage from the Bible. Tolerance is demanded of Christians but in this pluralistic society, little, if any, tolerance is afforded to Christian beliefs. Christians aren’t the antagonists here, but they do seem to have fewer rights than those engaging in lawfare to bring about forced acceptance.
Special Tuesday Prayer Notice: We pray that SCOTUS decides to nix both the Defense of Marriage Act (DOMA) and Prop 8 laws when they will be decided on, which is most likely going to occur in the final week of June of this year (much like how SCOTUS ruled on PPACA and AZ SB1070 during the last week of June back in 2012). It’s time to throw DOMA and Prop 8 off the books!
During the debate over the Shepard-Byrd Hate Crimes Prevention Act, Religious Rightgroups like the American Family Association warned that the law would “criminalize negative comments concerning homosexuality” and “take away our religious freedoms.”
Of course, none of that happened, but that hasn’t stopped anti-gay activists from making the exact same false claims again and hoping more people will fall for it.
Yesterday, AFA president Tim Wildmon appeared on The Janet Mefferd Show and alleged that if the Supreme Court overturned Proposition 8 and the Defense of Marriage Act (DOMA) then we will see “persecution against Christians” and restrictions on the freedom of speech.
Ironically, the AFA’s own legal counsel, Pat Vaughn, admitted that “the Defense of Marriage Act is probably unconstitutional.”
In 1996, Bill Clinton signed the Defense of Marriage Act. In 2013, with the law being challenged before the Supreme Court, Clinton writes that “As the president who signed the act into law, I have come to believe that DOMA is contrary to [the principles of freedom, equality and justice] and, in fact, incompatible with our Constitution.”
WASHINGTON — The Obama administration urged the Supreme Court to strike down the Defense of Marriage Act’s prohibition on recognition of same-sex couples’ marriages in a Friday filing, arguing that laws that target gay people should face additional scrutiny by courts reviewing them.
Under such heightened scrutiny, as it is called, Solicitor General Donald Verrilli says that Section 3 of DOMA, which defines “spouse” and “marriage” under federal law as only those marriages between one man and one woman, is unconstitutional.
In summary, the administration argues:
Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.
Additionally, the administration addresses the question of what should happen to DOMA if the Supreme Court does not agree that such heightened scrutiny applies, writing, “If the Court … applies rational-basis review, the government has previously defended Section 3 under rational-basis review, and does not challenge the constitutionality of Section 3 under that highly deferential standard.”
The administration has yet to take a position on the other case addressing same-sex couples’ marriage rights currently before the court, the challenge to California’s Proposition 8. Although not a party to the case, the administration could file an amicus curiae, or friend of the court, brief to announce its views. The deadline for doing so is February 28.
Windsor - United States merits brief by
h/t: BuzzFeed
On Tuesday, President Obama unveiled a comprehensive plan for immigration reform based on four tenets: continuing to strengthen border security, cracking down on employers hiring undocumented workers, creating pathways to earned citizenship, and streamlining legal immigration.
Speaking in Nevada, Obama said that the bi-partisan enthusiasm in the Senate is “very encouraging,” and offered a plan that closely resembles the framework outlined by a bipartisan group of eight senators. ”So at this moment, it looks like there’s a genuine desire to get this done soon,” Obama said. “The ideas I’m proposing have traditionally been supported by both Democrats like Ted Kennedy and Republicans like President George W. Bush.”
Obama’s proposal shares common ground with the bipartisan framework, but also goes further, specifically permitting binational same-sex couples to apply for legal residency. From the administration’s fact sheet:
The proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers. The proposal also raises existing annual country caps from 7 percent to 15 percent for the family-sponsored immigration system. It also treats same-sex families as families by giving U.S. citizens and lawful permanent residents the ability to seek a visa on the basis of a permanent relationship with a same-sex partner. The proposal also revises current unlawful presence bars and provides broader discretion to waive bars in cases of hardship.
Under current law, the Defense of Marriage Act (DOMA) prevents the government from recognizing the marriage of same-sex couples in which one partner is a U.S. citizen and the other is not. As a result, couples cannot petition for citizenship and are often separated by deportation, at great costs both emotionally and financially to their families.
The United States Supreme Court will review the decision by the 9th U.S. Circuit Court of Appeals that struck down Proposition 8, a 2008 law which banned gay marriage in California.
The appeals court’s ruling issued was issued in February and found the law unconstitutional.
The court will also hear challenges to the Defense of Marriage Act.
h/t: Huffington Post
BREAKING: #SCOTUS taking up 2 marriage equality cases – #DOMA and California’s #Prop8.More info to follow.
— HumanRightsCampaign (@HRC) December 7, 2012
On Friday morning, the Supreme Court may announce whether it will hear two major cases that could have a sweeping impact on the definition of marriage in the United States and on same-sex couples’ right to wed.
Ten cases dealing with gay marriage are pending before the court, but legal experts pinpoint two of them as the most likely for the court to consider.
The Defense of Marriage Act
The Defense of Marriage Act, or DOMA, recently has been struck down by two federal appeals courts, which means the Supreme Court is all but obligated to take at least one of the cases to settle the dispute between Congress and the courts. The case thought most likely to be picked up by the justices is Windsor v. United States, which challenges DOMA, a law passed by Congress and signed by President Bill Clinton in 1996 that prevents the federal government from recognizing same-sex married couples, even those in states that allow gay marriage.
The suit was brought by Edith Windsor, a resident of New York who paid $363,000 in estate taxes after her wife died because the federal government did not recognize their marriage. New York is one of nine states (and the District of Columbia) where gay marriage is legal, so Windsor argues that the federal government is discriminating against her by not recognizing her state-sanctioned marriage.
Doug NeJaime, an associate professor at Loyola Law School in Los Angeles, said that equal protection under the law, which is guaranteed under the 14th Amendment, is the key issue at stake in this case. Windsor argues that by singling out same-sex marriages and treating them differently from other marriages, the federal government is in violation of their rights. Since marriage has traditionally been regulated by the state, Windsor’s lawyers say the federal government has no business interfering with New York’s definition of marriage.
If the justices do strike down DOMA, the decision will broadly affect gay couples who marry in states that recognize same-sex nuptials. Most importantly, they would begin to qualify for the same federal marriage benefits other couples receive, including tax breaks and Social Security survivor benefits. And according to advocates, the decision would send an even larger message — that all marriages are equal under the law.
As with other recent major cases, Justice Anthony Kennedy appears to be the swing vote. For DOMA to be overturned, Kennedy would have to join the court’s four liberal justices to form a majority.
Kennedy has a libertarian streak that makes his votes unpredictable, as well as a legal record in favor of gay rights. In 2003, Kennedy wrote the Court’s opinion in Lawrence v Texas, a landmark decision that said the government cannot outlaw anal sex between consenting adults, whatever their sexual orientation. (“The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons,” he wrote.) Kennedy also cast the deciding vote striking down a Colorado law that would have prevented local governments from passing laws specifically protecting gay and lesbian civil rights.
Because of Kennedy’s history on the issue, many legal experts think there’s a good chance the court will strike down DOMA if it takes the case.
Proposition 8
Court watchers think the Supreme Court also will take up Proposition 8, California’s gay marriage ban. Voters passed Prop. 8 in 2008 months after the state’s high court had legalized same sex unions and thousands of gay Californians had already tied the knot. Two federal courts have struck down Prop. 8 as discriminatory, leaving the Supreme Court to render a final judgment.
The lower courts’ decisions made an overt appeal to Justice Kennedy by repeatedly citing his decision in the Colorado gay rights case. The lower court judges argued that by revoking marriage rights after they had already been granted, same-sex couples had been illegally singled out for discrimination.
If the Supreme Court agrees with that interpretation and decides to let the lower courts’ rulings remain in place, gay couples in California—the nation’s most populous state —would be able to get married legally within the month. But the decision would only apply to California. If the court does take up the case, the justices will decide by June whether to strike down or uphold the state’s gay marriage ban.
The Prop. 8 case differs from the DOMA case in one key respect: In Prop. 8, the pro-gay marriage side is arguing that marriage is a fundamental right that should not be denied to people based on their sexual orientation. That means the Supreme Court, in theory, could issue a sweeping decision on Prop. 8 that legalizes gay marriage throughout the country and invalidates state gay marriage bans.
Geoffrey Stone, a law professor at the University of Chicago, thinks that’s unlikely. He says the justices will most likely wait for public opinion—which has just recently begun to swing in support of gay marriage—and state laws to coalesce around the issue before issuing a broad decision.
The Supreme Court is expected to soon dive into the battle over gay marriage.
The Court will meet on Friday to decide whether or not to consider the constitutionality of the Defense of Marriage Act — the 1996 law that bars federal recognition of same sex marriage. It will announce next week the cases it has decided to consider, and experts see few reasons why DOMA won’t be among them.
Two federal appeals courts have invalidated Section 3 of DOMA, which bars federal benefits for same sex couples, as a violation of equal protection under the Constitution. In a rare move for the executive branch, the Obama administration is pushing the Supreme Court to overturn the federal law and angling against implementing parts of it.
“The Supreme Court simply has to take a DOMA case,” said Adam Winkler, a constitutional law professor at UCLA. “It’s extremely rare for the Court to allow lower courts to strike down a federal law on such an important issue without weighing in.”
Brian Fitzpatrick, a professor at Vanderbilt University School of Law who formerly clerked for Justice Antonin Scalia, said, “I think the DOMA cases are probably on the higher end of the spectrum because the lower courts have struck down an act of Congress.”
Of the 10 gay marriage cases on the high court’s menu, eight of them deal with DOMA.
If the Court declines to render a final judgment, Winkler explained, “federal law will apply differently depending on where people live. Traditionally, the Court works hard to avoid such a lack of uniformity. It could also create a bureaucratic nightmare for the federal government, which will have to give benefits to some gay couples but not others.”
Fitzpatrick does however see a conceivable scenario in which the Court opts not to take up DOMA. Here’s what that would mean: the conservative justices would conclude they don’t have the votes to uphold DOMA, and the liberals would prefer not to risk losing the possible swing vote of Anthony Kennedy, since the lower courts have given them their desired outcome anyway. So the Court declines to hear any DOMA cases, meaning the appellate rulings would stand, giving liberals what they want for now but putting off a supreme judgment on the issue.
Of the other two same sex marriage cases the Court may consider: one involves California’s Proposition 8, the ballot measure passed in 2008 which amends the state’s constitution to ban recognition of same sex marriages; another deals with an Arizona law that, like DOMA, restricts benefits for same sex unions.
Prop 8 isn’t seen as a prime candidate for Supreme Court review, partly because it covers a narrow range of issues. If denied, the lower court’s ruling overturning it would stand.
“If the Court doesn’t take this case,” said Winkler, “it is a big win for gay rights because marriage will soon be legal again in the nation’s most populous state.”
h/t: TPM
The nine judges of the US Supreme Court will decide next week whether to consider the constitutionality of same-sex marriage – a keenly awaited choice that will have far-reaching implications for thousands of legally married gay couples across the United States.
Activists are hoping that shifting public opinion on the issue, most recently demonstrated by election-day victories in all four states where same sex-marriage measures were on the ballot, will convince the judges to take on the issue.
Up for decision is a set of cases relating to the Defense of Marriage Act (Doma), a 1996 law which states that every time any federal law refers to marriage, it means only that between a man and a woman. Same-sex couples who are legally married in one of nine states or Washington DC are thus denied the benefits or opportunities afforded by marriage to opposite-sex couples.
Five federal courts have ruled that Doma is unconstitutional. The Supreme Court could decide to take on one or more of these cases. The judges will also decide whether to consider an appeal from supporters of California‘s Proposition 8, a voter-approved amendment to the state constitution which seeks to ban same-sex marriage. Another petition before the justices relates to the state of Arizona, which is seeking to revive a state law that is similar to Doma.
Four Supreme Court justices must agree a case in order for the court to take it. They can take up all of the measures before them, none of them or some. The justices are expected to announce a decision on 30 November.
Advocates of marriage equality are hoping that the tide of public opinion that has been demonstrated by polls over this year will persuade the justices to strike down Doma. Last year, the Obama administration decided not to defend the law in court, believing it to be unconstitutional.
Brian Moulton, legal director of Human Rights Watch, a marriage-equality group, said that the election-night victories had underlined the need for a Supreme Court decision on Doma, because of the growing number of couples who will be affected by a federal law that discriminates against them.
Moulton said: “The number of couples who are married at the state level who will not be recognised because of Doma will get bigger and bigger, so the scope of the problem will grow. That might influence the question of whether to resolve the issue.”
More controversial, he said, was the question of whether the justices decide to take on Proposition 8. It is exclusive to California, so it is less likely the justices will take it up. Both a federal trial court and the Ninth Circuit Court of Appeals have ruled Proposition 8 unconstitutional. However, the Ninth Circuit found that it was the unique circumstances of California that made adopting Proposition 8 a violation of the US constitution.
If, as many predict, the justices decline to consider an appeal from supporters of Proposition 8, same-sex couples would again be permitted to marry in California, as was the case for a few months in 2008 before the passage of the proposition. Because of the size of the state, such a decision would at a stroke dramatically boost the number of gay couples in the nation who would be able to legally marry.
Nejaime said that the court had several options regarding Proposition 8, including upholding it along the narrow focus of the Ninth Circuit ruling. “If they went behind the Ninth Circuit, we would only have same-sex marriage in states that already have domestic partnerships or civil union. The broadest ruling would be to say all of the states where same-sex marriage is not allowed is unconstitutional – but I don’t think the court is ready to go there.”
If the justices decide not to take the case, California could begin issuing marriage licences within days.
h/t: The Raw Story
Chief Judge Dennis Jacobs is a very conservative judge. 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.
And yet, this severely conservative judge is also the author of an opinion striking down the unconstitutional Defense of Marriage Act.
Even more significantly, Chief Judge Jacobs’ opinion concludes that any law which discriminates against gay men and lesbians should be treated very skeptically under our Constitution:
[W]e 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.
This is a Really. Big. Deal. Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification. This is the same very skeptical standard afforded to laws that discriminate against women. If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.
