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Filed under: Supreme Court

Liveblog: Supreme Court rulings on DOMA, Prop 8

By Jacob Combs, Scottie Thomaston and Adam Bink

Update 16 (12:01 p.m.): A few other news items that have straggled in.

The president released a statement on the DOMA ruling:

I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.

In addition, the Los Angeles County Registrar-Recorder/County Clerk issued the following press release on the Prop 8 ruling and the effect in California/L.A.:

Upon dismissal of Prop 8, the matter has been sent back to the lower Appellate Court where the decision overturning Proposition 8 was issued. The lower court must now take action to lift the stay before we can issue marriage licenses based on the decision.

No change in the issuance of marriage licenses can occur until further notice. Upon direction, the Los Angeles County Registrar-Recorder/County Clerk will begin issuing licenses and performing ceremonies for same-sex couples.

“We do not foresee any delays or interruption in service for our customers. We are prepared to accommodate any potential volume increases,” said Dean Logan, the Los Angeles County Registrar-Recorder/County Clerk.

Update 15 (11:23 a.m.): OK, last update right now for real.  Check out two amazing photos of Edie Windsor finding out that she won today, via the New Yorker.  Truly heart-warming.

Update 14 (11:20 a.m.): Scottie and Jacob are going to go into deep decision-reading mode now.  Long story short: DOMA is gone, Prop 8 will be too, but there are going to be some intermediate steps and things to figure out as the decisions are implemented.  Of course, we’ll be here for the ride with you!

Make sure to check back around 10:30 a.m. Pacific/1:30 p.m. Eastern for our CoveritLive event.

Update 13 (11:14 a.m.): Adam Liptak of the New York Times writes about the path forward for same-sex couples post-DOMA:

The decision will immediately extend some federal benefits to same-sex couples, but it will also raise a series of major decisions for the Obama administration about how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.

Update 12 (11:12 a.m.): A tweet from Senior Advisor to the President Dan Pfeiffer:

Update 11 (11:10 a.m.): A few notes on what could be next.  There’s a roughly one-month waiting period before the Supreme Court’s decision can be final.  When that happens, there will likely be some controversy about the scope of Walker’s ruling (aka, whether it should apply to the whole state or just to the counties the two couples live in or the couples themselves).  Most observers think the final result will be state-wide marriage equality.  But there could be some bumps along the way.

Update 10 (11:07 a.m.): Here’s what that Prop 8 ruling means.  Since the Court said the proponents had no standing to appeal, the entire process at the Ninth Circuit was essentially moot.  The Supreme Court vacated the Ninth Circuit’s decision, remanded the case to the circuit court, and instructed it to dismiss the appeal for lack of standing.  This means Judge Walker’s ruling striking down Prop 8 will be the final say in the case.

Update 9 (11:04 a.m.): Sorry about the technical difficulties, folks!  We’re back now, and we have the Prop 8 decision.  The Court rules that the proponents did NOT have standing to defend the law in federal court.

Update 8 (10:14 a.m.): Per SCOTUSblog: Scalia’s bench statement is long, could be a delay before we hear the Prop 8 decision.

Update 7 (10:11 a.m.): SCOTUSblog says there is language intimating Court will dismiss Prop 8 on standing.  From the Roberts dissent:

“We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry.”

Update 6 (10:10 a.m.): SCOTUSblog reports that Roberts and Scalia write that the Court does not have jurisdiction.  Roberts writes separately.  Here’s a choice quote from Scalia’s dissent:

“both spring from the same diseased root: an exalted notion of the role of this court in American democratic society.”

Update 5 (10:08 a.m.): From the ruling:

The majority opinion need not get into the strict-vs.- rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is un- constitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty pro- tected by the Fifth Amendment,” ante, at 19.

So no heightened scrutiny, but also no mandate to lower courts to use rational basis scrutiny.

Update 4 (10:05 a.m.): SCOTUSblog says the ruling also relies in part on federalism.  Here’s the link to the opinion.

Update 3 (10:04 a.m.): This is an equal protection based ruling, which is BIG.  The question now is–what was the standard of review used.  Rational basis?  Or heightened scrutiny?

Update 2 (10:03 a.m. Eastern): From SCOTUSblog: “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

Update 1 (10:02 a.m. Eastern): The first ruling is on DOMA, per SCOTUSblog.  The ruling is 5-4, written by Justice Anthony Kennedy.  Chief Justice John Roberts dissents, along with Justice Scalia.  The ruling is based on equal protection.

ORIGINAL POST (9:55 a.m. Eastern): In just a few minutes, the U.S. Supreme Court will convene to issue rulings in the final cases of its current term, including the challenges to Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (U.S. v. Windsor).  We’ll be covering the decisions live in this post as they’re handed down, with updates scrolling from the top of the post.  We’ll also publish brief, breaking news posts as the rulings are handed down in each case, since we expect there to be a short wait between the two.  If you’ve already joined us, though, stay on this page for immediate analysis and reactions from across the web.

Later today, we’ll be conducting a CoverItLive chat to answer all your questions about the rulings–stay tuned for firmer details on that, which will take place late morning Pacific time/early afternoon Eastern.  After the CoverItLive chat, Scottie and I will write in-depth analysis of the two rulings.

If the details of the two cases have become fuzzy to you, fear not!  Our own Scottie Thomaston has a quick overview on the background of the legal challenges.

The Prop 8 and DOMA cases: a primer

In the Prop 8 case, Hollingsworth v. Perry, the plaintiffs are challenging California’s ban on marriage equality, 2008’s voter-enacted Proposition 8. The state’s supreme court had earlier decided that under California’s constitution, a ban on same-sex marriage is unconstitutional; Prop 8 amended the state constitution. The question is whether, under the federal constitution, they can do this. There is an additional question over appellate standing. The state government answered the original complaint at the district court, but did not want to defend the law; the district court allowed the ballot initiative’s proponents, ProtectMarriage, to defend the law. When the plaintiffs won, the state declined to appeal the decision, but the proponents appealed. The Ninth Circuit sent the case to the state supreme court to decide whether ballot initiative proponents can represent the state’s interests in court, and the state constitution said they can.

With that ruling in mind, the Ninth Circuit said that since the state allows proponents of ballot initiatives to step into the shoes of the state, there is standing in federal court to appeal, since the state is injured. The plaintiffs believe there is no standing here, because the Court itself has expressed “grave doubts” on the issue in a previous case, Arizonans for Official English v. Arizona. The proponents of ballot initiatives don’t have a personal injury or stake in enforcing Prop 8, and the plaintiffs believe the proponents’ interests are too general. The Court asked the parties to brief and argue the standing issue, and it was discussed first at the arguments in March.

The Court has once before been faced with the issue of marriage equality. They were asked to resolve a procedural case about same-sex marriage in Washington DC, and their opinion could have had the effect of holding off on allowing marriages in DC and putting the issue up to a public vote before anyone could enter into a same-sex marriage. Chief Justice Roberts issued a decision saying this could not happen. The Court, to be sure, didn’t address the merits in that case at all – it was strictly procedural. But the result had the effect of allowing same-sex couples to marry through, essentially, the Court’s inaction.

The challenge to Section 3 of the Defense of Marriage Act (DOMA) that the Court chose to review, United States v. Windsor, was brought by Edith “Edie” Windsor. Windsor is 83, and her spouse and partner of over 40 years died in 2009 (they were married in Canada in 2007 and lived together in New York.) Because of Section 3 of DOMA, all federal laws that use the word “spouse” or the word “marriage” refer only to opposite-sex married couples, meaning that the federal government does not recognize legally married same-sex couples as married. When Windsor’s wife died, the government sent her a tax bill for $363,000; the bill was for estate taxes, which the surviving spouse of a deceased person is not usually required to pay under federal law. Windsor, however, is not a surviving spouse under federal law because she is not a spouse at all under DOMA. The lawsuit challenged Section 3 of DOMA as a violation of equal protection principles established in the Fifth Amendment.

Another question the Justices added was about their own jurisdiction to take up the challenge to Section 3 of DOMA. This is an important question which came up because the President and the Justice Department declined to defend the Act in court, leaving it to Congress to defend. (There is a provision of federal law which lays out the procedures for when the Executive Branch believes a law is unconstitutional and declines to defend it, and when Congress was informed as per the provision, they decided to take it up.) The Justice Department stayed on the case as a party, and continued to file appeals and procedural motions in the case, as well as motions actively attacking the Act’s constitutionality. They filed a petition to the Court to review the case, along with the plaintiff’s lawyers. The Justice Department agrees with Windsor that the law is unconstitutional, and she won in the courts below (the district court and the Second Circuit Court of Appeals.)

Because of this, the Court asked whether they can take up a petition filed by a party who got what it wanted in the lower court. The Justice Department says they can, because as a representative of the Executive Branch, the Justice Department filed the petition on the basis that although the Executive agrees the law is unconstitutional, they are “injured”, legally, by a decision against them in the appeals court, which blocked them from complying with the federal law. The Court can decide, definitively, whether or not the Executive has to abide by Section 3 of DOMA.

Congress, through the Bipartisan Legal Advisory Group (BLAG), a five-person legal advisory group that is a part of the House of Representatives, defended the law and opposed the Justice Department’s involvement. They also argued that Windsor may not herself have standing to appear in court because there was no definitive decision by the highest New York court saying that they would have recognized her Canadian marriage; this issue was only briefly mentioned at the Supreme Court, after the lower courts disagreed with BLAG. But there is a similar issue with BLAG itself: the Court asked the parties to brief and argue whether BLAG has standing to appear in federal court as a five-member advisory group of one house of Congress. (Also, only three of the five members, the three Republicans, voted to allow BLAG to defend DOMA, though all five believe there is standing.) The standing issues are significant questions the Court has not addressed in a definitive way.

This is a developing story.  Check back for regular updates, which will scroll from the top of this post.

2 Comments June 26, 2013

It’s decision day for Prop 8 & DOMA at the Supreme Court–here’s EOT’s game plan

By Jacob Combs

Well, today’s the day: after more than three roller-coaster years, it all comes down to this.  This site began as Prop8TrialTracker.com in January 2010, covering the Proposition 8 trial–then called Perry v. Schwarzenegger–in a San Francisco district court.  We were there when Prop 8 was struck down the first time; we were there when the Ninth Circuit held oral arguments; we were there when Prop 8 was struck down a second time; we were there when the Supreme Court heard arguments on Prop 8 and the Defense of Marriage Act.  And of course, we’re here to report on whatever the Supreme Court’s decisions may be today.

As I’ve said before, it’s a privilege to be a part of this community and this movement, especially as a gay Californian.  We’re hopeful that today will bring good news, and if it doesn’t, I know that my home state and our community will rally together and continue striving for equal treatment under the law for all Americans.

Here’s the EqualityOnTrial plan for today.  We’ll be publishing a liveblog post about 10-15 minutes before 10 a.m. Eastern time, when the Supreme Court is scheduled to convene.  That post will be the place to stay tuned throughout the morning–we’ll have news of the rulings as soon as they’re announced, as well as quick analysis from me and Scottie and reactions from around the web.  We’ll also post a brief breaking news post devoted to each ruling, but the place for up-to-the-minute news will be the liveblog.

Later today, we’ll be conducting a CoveritLive chat to answer all your questions about the rulings–stay tuned for firmer details on that, which will take place late morning Pacific time/early afternoon Eastern.  After the CoveritLive chat, Scottie and I will write in-depth analysis of the two rulings.

As always, please join us in the comments sections!  And of course, you should follow the entire EOT team on Twitter: the site’s handle is @EqualityOnTrial, mine is @jacobdcombs, Scottie’s is @indiemcemopants and Adam’s is @adamjbink.  We’re looking forward to an exciting day!

June 26, 2013

The End

This guest post, a personal reflection on the significant of the Proposition 8 case, was authored by an EqualityOnTrial community member who comments under the name ‘Bill S.’ Remember, if you would like to submit a guest post to be featured on the site, just drop us a line here!

By Bill Santagata

It is hard to imagine that it was more than four years ago that Hollingsworth v. Perry (then captioned Perry v. Schwarzenegger) was filed by the American Foundation for Equal Rights (AFER). In many ways, Hollingsworth has been the background noise to my life, the past four years being measured in filings, orders, and court decisions, and the waiting in-between. Not one day has gone by (and there have been about 1,500 of them) where I have not logged on to EqualityOnTrial (or Prop 8 Trial Tracker as we used to know it) to consume the latest updates.

I distinctly remember the moment when I heard of each decision, at the District Court and then at the Circuit Court. For the former, the date and time the decision would be handed down was imminent so I signed up to receive an automated text message from AFER. I was doing a film internship that summer (of 2010) in Rhode Island, anxiously awaiting my phone to vibrate that afternoon. I remember picking it up when it did, hitting enter, and trying to contain my elation by the news.

But I knew that it would not be the final word, and that we would have to wait for the Ninth Circuit Court of Appeals to weigh in. And when they did, in February 2012, I was in Paris getting my master’s in French literature, receiving the news on the metro, once again by text. It was not until the next day when I could read the decision. I was somewhat disappointed that it was a split vote, but a victory was a victory, and I held my breath hoping the Supreme Court would deny certiorari. Of course, they granted cert. this past October, held oral arguments in March, and here we are today.

Whatever may happen in the next week, I will be eternally grateful for all that Hollingsworth has taught me. Before this case began, I had little knowledge of the workings of our judiciary. How many of us four years ago would have known what “Article III standing” was? Or what an “en banc” decision meant? Or how many Supreme Court Justices it takes to grant certiorari—or what certiorari even is in the first place? From rational basis to strict scrutiny, Hollingsworth has taught me everything I know about the Equal Protection Clause, making me appreciate all the more my constitutional rights as a citizen of this country.

In these last moments of Hollingsworth v. Perry I think back on what I have learned but also on what I have witnessed. I remember how my feelings of joy for Obama’s 2008 electoral victory were quickly dashed by anger and contempt for the passage of Proposition 8 later that same night, hearing the raucous applause from my dorm room in New York City while seeing the demonstrations in the Castro on TV.

But since then, we have seen so much good: the legalization of marriage equality in eleven other states (including my home state of Rhode Island) by victory in the courts (the beautifully written unanimous decision in Iowa), the legislature (staying up past midnight, nails thoroughly bitten through, to watch the New York Senate live), and the ballot box (“they did it! they actually did it! in all four races!”). We saw Sean Penn win an Oscar for his portrayal of Harvey Milk; we cautiously followed the gradual demise of Don’t Ask, Don’t Tell; we tuned in to YouTube’s live broadcast of “8” the play, laughing at John C. Reilly’s portrayal of bumbling witness David Blankenhorn. I am also proud to say that the first protest I ever attended was in front of New York’s City Hall against Proposition 8.

This has been quite the adventure, but there are unfortunately many who are not able to be there with us at its end. Jeanne Manford, the founder of PFLAG (Parents and Friends of Lesbians and Gays) was just a woman with a sign at the Christopher Street Liberation Day March in 1972: “PARENTS OF GAYS: UNITE IN SUPPORT FOR OUR CHILDREN” but she would go on to create one of the most supportive organizations for LGBT people and their families in the country. She died on January 8, 2013 at the age of 92. Frank Kameny was employed as an astronomer with the Army’s Map Service when he was fired during the “Pink Scare” in 1957. He fought his termination all the way to the Supreme Court, and although he was not victorious, he never stopped fighting, and it is in his steps that we continue today. He died on October 11, 2011 at the age of 86.

John Geddes Lawrence, Jr. was a medical technician from Texas who one day in 1998 found himself under arrest for having sex with another man. He would become the petitioner in the landmark case Lawrence v. Texas that would establish once and for all that being gay was not a crime (a decision that celebrates its 10th anniversarythis Wednesday). He died on November 20, 2011 at the age of 68. However, this long arc of justice was particularly brutal to Ed Watson, a California man who died of Alzheimer’s disease waiting to marry his partner of 40 years. His death was a sharp reminder of everything that is now at stake.

It’s been four years of excitement, nervousness, anticipation, and impatience. But overall it has been nothing less than an enjoyable and memorable experience. Like Frodo, I’m exhausted, eager to cast this ring into the fires of Mount Doom and be done with it all, yet nonetheless reluctant to let go of it, allowing it come to an end so suddenly. While this will not be *The* End, it is nonetheless the closing of a very important—and very long—chapter of a much greater journey.  No matter how the ending to this chapter is written, we can take comfort knowing that we are in a better place today than when it started. “‘Go back?’ [Bilbo] thought. ‘No good at all!’ Go sideways? Impossible! Go forward? Only thing to do!

On we go!”

June 21, 2013

Bending towards justice: a reflection on President Obama’s marriage equality announcement, one year later

Robin Roberts/Barack Obama
Media Research Center

By Jacob Combs

Exactly one year ago today, President Barack Obama sat down in an interview with Robin Roberts of ABC News and said, “I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.”

One year later, those words still ring with the sound of history in the making, but they also seem almost unsurprising.  As the saying goes, the arc of the moral universe (and President Obama’s public position on marriage equality) may well be long–and we are still seeing it bend towards justice.

When President Obama made his announcement last May, his words were couched in the careful language of the election-year politician.  It was his personal belief, the president stressed, that same-sex couples should have the right to marry–a belief that did not necessarily mean that states should provide equal marriage rights to their citizens or that the president was referring to a fundamental constitutional right to marriage equality.

But then came the November election, when advocates of marriage equality in three states–Maine, Maryland and Washington–and opponents of a constitutional ban on equal marriage rights in Minnesota went to the ballot box.  The Obama campaign had spoken out against the Minnesota ban in April, as he had against California’s Proposition 8 in 2008 and North Carolina’s Amendment 1 in 2012.  But he had never taken a public position in support of a marriage equality ballot initiative.  On a Thursday late in October, less than two weeks before the election, he did just that, issuing statements in support of all three state campaigns.

Despite these influential and very public statements of supports, LGBT advocates still eyed the ultimate prize: an unequivocal statement from the president that same-sex couples had a fundamental right to marry under the U.S. Constitution.  Through the providence of political timing, the prime vehicle for such a statement was readily apparent: the Proposition 8 case, which was due for oral arguments at the Supreme Court in late March and which argued not only against California’s marriage equality ban, but against similar bans across America.

Obama and the Justice Department stayed mum as the days ticked closer to the deadline before which the DOJ would need to file a briefing in support of the Prop 8 plaintiffs with the high court.  Advocates of equal marriage rights wrote that the President was being too cute by half by going public with his private views but stopping short of throwing the full weight of the U.S. government behind the biggest LGBT legal argument in a decade.

And then, late on another Thursday evening, at essentially the very last minute it could do so, the Obama administration filed its brief.  If it wasn’t the total victory LGBT activists had hoped for, it came mightily close.  “The exclusion of gay and lesbian couples from marriage,” the brief argued, “does not substantially further any important governmental interest.”  Even though the DOJ’s filing did not explicitly call for the end of marriage equality bans across the U.S., its legal reasoning–in arguing for the more searching form of constitutional review known as heightened scrutiny–made that argument implicitly.

As we await the Supreme Court’s decisions on the constitutionality of Prop 8 and the federal Defense of Marriage Act sometime between now and the end of June, it’s clear that the marriage equality landscape has been fundamentally altered since last May.  When President Obama sat down with Robin Roberts, six states–all in the Northeast, with the exception of Iowa–and Washington, DC allowed same-sex couples to wed.  Just one year later, that number has nearly doubled, with victories for LGBT advocates in Rhode Island last week and Delaware this Tuesday.  Two more states–Minnesota and Illinois–could very well follow in the next few weeks, and of course there is California, the most populous state in the Union, which could have marriage equality restored this summer.

Undoubtedly, many of these votes have had a demonstrably Democratic bias.  Several Republican legislators across the country have stood up for equal marriage rights–including the entire (five-member) Rhode Island Senate Republican caucus–but by and large marriage equality has succeeded on the votes of Democrats.  President Obama’s support has had an enormous impact, perhaps not on politicians’ private views, but certainly on their public position, as other Democratic politicians have fallen in line behind the president.  At this point, for instance, only three Democratic Senators remain opposed to equal marriage rights.  There’s nothing else to call that but a sea change.

But the question remains, for both supporters of LGBT rights and politicians who (now) support marriage equality, of what’s next.  There are plenty of options: the Employment Non-Discrimination Act (ENDA), which would protect LGBT individuals from being fired for their sexual orientation or gender expression, the Uniting American Families Act (UAFA), which would provide protections to binational same-sex couples where one partner cannot currently sponsor the other for citizenship.  In many states, transgender men and women are denied medically necessary treatments–and, in some cases, denied any health insurance–because of their gender expression.  The rate of new HIV diagnoses amongst heterosexuals is declining across the U.S., but it is rising for men who have sex with men, especially in communities of color.

Marriage is an incredibly important and emotional issue.  It’s no accident that support for marriage equality has swept into the hearts and minds of the American public–and, through them, to their politicians.  But these politicians will soon face test votes that will demonstrate whether their support for equal marriage rights is based on principles of liberty and equality or an expedient reading of their constituents’ views.  To take just one example, ENDA, if LGBT Americans should have the same right to marry as their heterosexual, cisgender counterparts, should they not have the same protections when it comes to wrongful termination?

On year ago, President Obama’s ABC News interview marked an inflection point in the marriage equality debate, and while it might yet take some time for the legal reality of equal marriage laws to catch up to the political reality, an undeniable shift has occurred.  The LGBT community has many more milestones to look forward to, perhaps some of them with the help of this president.  That will require the passion, patience and determination that we’ve already shown–the same qualities which led to President Obama’s historic announcement last May.

May 9, 2013

Marriage equality matters for all Americans: lessons from the Supreme Court and Matthew Shepard

By Jacob Combs

Towards the end of February, I had the opportunity to attend a performance of “The Laramie Project” cycle at the Brooklyn Academy of Music. From mid-afternoon to late evening that Saturday, I sat in the audience scribbling notes in the dark on a pad of paper as I watched a marathon performance of “The Laramie Project” and “The Laramie Project: Ten Years Later,” two provocative, experimental plays by director Moisés Kaufman and his Tectonic Theater Project that deal with the aftermath of the murder of Matthew Shepard.

Shepard, who in 1998 was beaten and left to die tied to a fence in Laramie, Wyoming, has become a symbol: his story is a lesson of bigotry and of the challenges faced by young LGBT Americans who live in socially conservative states where being gay is different and often threatening to those who are uncomfortable with sexual minorities. Matthew Shepard’s mother, Judy, is now a fierce advocate, and her activism helped lead to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which President Obama signed in 2009 and which helps protect LGBT Americans who have been the victims of hate crimes.

Kaufman and the other members of Tectonic developed “The Laramie Project” from a series of interviews they conducted in Laramie during the aftermath of Matthew’s death and the journal entries they wrote while visiting the town. Sitting in the dark theater, I was both deeply moved and deeply troubled, yet when I went back to look at the pages of notes I had taken, I was at a loss, filled with too many thoughts and struggling to bring them together into some cohesive argument. I put them away in my desk, promising to myself that I would get around to writing a piece on the play once I could process what I had experienced.

This week, as I sat in the press gallery of the Supreme Court listening to the oral arguments in two cases that could decide the constitutionality of California’s marriage equality ban Proposition 8 and the Defense of Marriage Act, which bars same-sex couples from federal marital benefits, I couldn’t help but be reminded of that evening at BAM. Here I was again, furiously jotting down notes, observing what is in many ways a performance, hoping that, in the end, I would be able to pull together some meaning out of the multiplicity of legal arguments that were being presented.

Supporters of marriage equality went into this week with high hopes that 2013 could be the year that Americans in all 50 states would be free to marry, regardless of the gender of their partner, and free to have those marriages recognized by the federal government. Those hopes were dimmed a bit after Tuesday and Wednesday’s oral arguments, which featured a court skeptical of DOMA, but wary of extending equal marriage rights to those states which currently ban them. At this point, it seems quite possible that after the Court rules by the end of June, there will be marriage equality again in California and DOMA will be gone. But that would still leave LGBT Americans in states without equal marriage rights in the lurch–Americans like Matthew Shepard, were he still alive and living in Wyoming today.

Just about two months ago, the Wyoming legislature considered bills that would legalize marriage equality, enact domestic partnerships and provide employment discrimination protections based on sexual orientation and gender identity. Although the domestic partnership bill passed a House committee and the nondiscrimination bill passed a Senate committee, both with bipartisan support and both marking historic firsts for the state, the two measures failed when they came up for full floor votes. In Wyoming, nearly 15 years after Matthew Shepard died, LGBT Wyomingites still have next to no legal rights under their state’s laws.

During oral arguments at the Supreme Court, Justice Ginsburg said that DOMA essentially creates two types of marriage in the United States, which she called “the full marriage, and then this sort of skim milk marriage.” But she also went further, saying that the federal benefits of marriage are “pervasive” and that they “touch every aspect of life.” When considering a marriage that provides no federal rights, she mused, one might ask, “what kind of marriage is this?”

Justice Ginsburg is touching upon something deeply important here, and her point underscores an element of the marriage equality discussion that is too often overlooked. DOMA doesn’t just denigrate the marriages of same-sex couples on the days when it blocks a gay couple from benefits like Social Security or hospital visitation rights, or on tax day when they have to file separate federal returns. It denigrates these marriages every day, because marriage affects these couples’ lives every day. To look at it from the other direction, a married couple isn’t just married on days where their marriage comes into play for some specific reason; they’re married every day.

Which brings me back, in a way, to Matthew Shepard. The Supreme Court this week appeared ready to punt on the central question of the constitutionality of state-based marriage equality bans, preferring instead to let the democratic process in individual states sort itself out. This wait-and-see approach may have both judicial and political wisdom in it, and it may be less discouraging for a young gay man like me, a California native who lives in New York and sees marriage equality coming back to his home state either this year through the action of the Supreme Court or next year through a ballot initiative that overturns Prop 8.

But it is a gross disservice to the gay, lesbian, bisexual and transgender Americans who live in states where wait-and-see could mean five, 10, or 50 years before they are treated equally under the law. This equal treatment goes far beyond marriage equality, which is the most high-profile LGBT rights issue of the moment, to the other myriad forms of discrimination Americans face based on their sexual orientation or their gender identity.  No Americans should be denied the right to marry the partner of their choice, or be subject to losing their jobs for being gay or transgender, simply because of the state in which they are born.  Matthew Shepard’s legacy has taught us this much: his right to liberty, to happiness, and indeed to life itself should never have hinged on the fact that he lived in Wyoming.

It’s not just that equality cannot and should never wait for majority support. Even more importantly, every day that they are on the books, laws that thwart equal treatment under the law and thus create in the minds and hearts of those against whom they discriminate–even if these laws were not passed out of an explicit desire to discriminate–a feeling of lesser-than status or second-class citizenship actively harm our nation and our LGBT brothers and sisters.

These laws are bad for the heart and soul of our country. One of the central reasons we have courts is to show us these laws for what they truly are–and sometimes, the courts must do so before we are ready to admit it.

March 29, 2013

Oh, the places we (might) go: a road map of possible Supreme Court decisions on DOMA and Prop 8

By Jacob Combs

After the whirlwind that has been the last two days at the Supreme Court, it’s hard to point to any outcome in either the Prop 8 case or in Edie Windsor’s challenge to the Defense of Marriage Act as more likely than another.  There was division on the Court as to the constitutional merits of both laws (unsurprisingly, the liberal Justices tended to express doubt about the laws’ validity while the conservative Justices leaned towards upholding them), and there was substantial time devoted to legal and procedural questions that could prevent the Court from even deciding whether the laws are constitutional or not.  Here’s a brief look at the possible outcomes available to the Court in each case.

The Prop 8 case (Hollingsworth v. Perry)

A dismissal of the case as ‘improvidently granted’

Any Supreme Court watcher will tell you that the magic number at 1 First Street is five: with five votes, you can do anything; without them, you can do nothing.  That’s true of the Court’s legal decisions, where five votes are required to create a controlling, majority opinion.  But since the high court has discretion over which cases it reviews from the lower courts, there is a different magic number when it comes to whether or not the Court will take up a specific appeal.  That number is four, and since four Justices can vote to hear a specific case (the technical term is called ‘granting a writ of certiorari), the Court can end up hearing a case that only a minority of Justices want to consider.

At Tuesday’s oral arguments, it looked like there might indeed have only been four votes on the Court to take up the Prop 8 case in the first place.  Justice Sotomayor specifically mused whether the Court should let the issue of marriage equality percolate in the lower courts, to which Justice Scalia snippily responded that the Court had decided to take the case, so it didn’t matter what Sotomayor thought since that decision had already happened.  But Justice Kennedy, the über-powerful swing vote, seemed almost eager to avoid the central constitutional questions in the case, asking lawyers on both sides of the issue if the case was properly granted.  That could signal that it was only the Court’s four conservative Justices who voted in the first place to consider the Prop 8 case, and that there are five votes (the liberals plus Kennedy) for–as the legal terminology puts it–dismissing the case as ‘improvidently granted.’

Such a dismissal is uncommon but not unheard of, and it essentially means the Court decides that it was wrong to take up a particular appeal and dismisses the case without any decision on the merits.  The significance of such a move is that it leaves the Ninth Circuit’s ruling in place, restoring marriage equality to California on the narrow grounds that it was unconstitutional for the state to extend equal marriage rights and then rescind those rights by a popular vote.  Such a decision would be binding on everyone in California and would also also stand as precedent in the entire Ninth Circuit, meaning that no other state in the circuit with marriage equality (for now, only Washington) would be able to take away same-sex couples’ marriage rights through a ballot initiative.

A decision that the Prop 8 proponents do not have standing

A very significant gateway question in the Prop 8 case is whether the ballot measure’s official proponents–who intervened in the lawsuit to defend Prop 8 after the governor and attorney general of California declined to do so–have what is known as Article III standing to defend the law at all.  Without getting too lost in the legal weeds, in order to have standing in a federal court, a party generally has to show that they’ve suffered a specific, personalized injury and are not simply putting forward a claim to some more generalized injury that does nothing to distinguish them from the general public.

When the Ninth Circuit addressed the constitutionality of Prop 8, it asked the California Supreme Court for an advisory opinion on whether the law’s proponents had standing under state law to defend the statute in court, and relied on the California court’s determination that the proponents could represent the interests of the state in seeing its laws defended to grant them Article III standing.  (Neither the California Supreme Court nor the Ninth Circuit addressed the issue of personalized injury.)  The Supreme Court, however, essentially has to decide this issue for itself.  At oral arguments, there was a clear conflict for the Justices surrounding the competing questions of whether a law enacted by popular vote could be nullified if a governor or attorney general decided not to defend it and also whether any citizen of a state could step up to represent the state’s interest.

This means that the Supreme Court could very well decide that the Prop 8 proponents did not have standing to defend the law, meaning that the Court, just as if it had dismissed the case as improvidently granted, would not be able to reach the merits of the law’s constitutionality.  The difference between these two decisions is that a ruling on standing would vacate the Ninth Circuit’s opinion, since the proponents would not have had Article III standing to defend Prop 8 in that court either.  That would mean Judge Vaughn Walker’s broad district court ruling that Prop 8 violates the U.S. Constitution on both equal protection and due process grounds would finally be able to go into effect.

There’s some uncertainty about exactly what the outcome of such a decision would be, although it’s very likely marriage equality would come back to California.  Judge Walker ruled that Prop 8 is unconstitutional throughout California and enjoined the governor and attorney general from enforcing it.  Technically, however, a district court can only issue a remedy for the specific plaintiffs in the case.  This could mean that Walker’s ruling would only allow the two same-sex couples who filed the Prop 8 lawsuit to marry, and that it would be up to California’s governor and attorney general to decide if they wanted to stop enforcing Prop 8 based on the district court’s decision.  It’s likely there could be more litigation in the California state courts to determine exactly how Judge Walker’s ruling should be interpreted and put into effect, so a standing decision could create even more uncertainty.

A decision on the merits

If the Supreme Court decides the Prop 8 case was not improvidently granted and that the proponents do have standing to defend the law, it would then issue a decision on Prop 8’s constitutional merits.  The Court could limit its ruling to California only, or it could institute marriage equality nationwide.  It could also rule that Prop 8 is constitutional and that states can limit marriage to opposite-sex couples.  Based on Tuesday’s oral arguments, only the first of those three scenarios appears likely.  There did not seem to be five votes to explicitly uphold Prop 8, but neither were there five votes for a sweeping ruling establishing marriage equality nationwide.  Justice Kennedy, in particular, seemed to hesitate in regard to a broader ruling, saying that he does not believe the social science surrounding marriage equality is conclusive yet or that the Court should dictate marital law to the states.  He also seemed skeptical of the Ninth Circuit’s California-only ruling.  From his apparent distaste for both upholding and invalidating Prop 8, Kennedy appeared eager not to address the constitutional merits of Prop 8.

The DOMA case (U.S. v. Windsor)

A ruling on standing/jurisdiction

In Edie Windsor’s case challenging Section 3 of the Defense of Marriage Act, which prohibits duly married same-sex couples from accessing federal marital benefits, there are two related procedural issues that could keep the Court from ruling on the merits of the law.  In 2011, the Justice Department, acting on instructions from President Obama and Attorney General Eric Holder, announced it would stop defending DOMA in court and argue instead against the law’s constitutionality.  The Bipartisan Legal Advisory Group (BLAG), a 5-member body in the House of Representatives made up of the Republican and Democratic party leadership, voted 3-2 on party lines to defend the law.

During Wednesday’s arguments, the Justices asked whether BLAG has standing to appear in court in defense of DOMA and whether the Court itself has jurisdiction to hear the appeal since the federal government (the defendant in the case) and Edie Windsor (the plaintiff) agree on the law’s merits and both want it to be struck down.  On the former issue, most of the Justices seemed less than convinced that BLAG should be allowed to join the case as a party, since it is only a small subgroup of one house of Congress and because it falls to the Executive Branch under the U.S. Constitution to execute and defend the nation’s laws–or to do neither.

On the issue of the Court’s jurisdiction, the Justices asked if the United States could point to any specific injury present in the case that would allow it to seek an appeal of the district court decision.  At the same time, the Justices also expressed concern about issuing a ruling that would allow parties to appeal cases in which both sides agree on the fundamental constitutional issues.

As in the Prop 8 case, if the Court were to rule both that BLAG lacks standing to defend DOMA and the federal government cannot appeal a decision that it agrees with, there would be no ruling on DOMA’s constitutionality.  The Second Circuit’s dramatic decision invalidating DOMA would be vacated, and the district court’s ruling striking down the law and ordering a tax refund for Edie Windsor would be final.  DOMA would still be on the books and it would be up to President Obama to decide whether or not to continue enforcing the law.

A ruling on the merits

Unlike during the Prop 8 oral arguments, Justice Kennedy did appear during Wednesday’s hearing to be leaning towards the position that there was a recognizable injury in the DOMA case (since a ruling in Windsor’s favor would force the federal government to refund over $363,000 to her) and that the Court could issue a ruling on the merits.  There was a clear majority on the Court in favor of invalidating DOMA: the liberal Justices appeared open to striking down the law as a violation of equal protection, while Kennedy and Chief Justice Roberts (and, to an extent, Justice Alito) seemed open to ruling it an unconstitutional intrusion of federal power upon an area of traditional state sovereignty. Between these five to seven Justices, some majority decision against DOMA seems very likely.

A ruling striking down DOMA would only affect Section 3 of the law (since only that section was challenged in court) and would allow married same-sex couples across the country to access federal marital benefits.  Of course, Section 2 of the law, which allows states to ignore marriages between same-sex couples obtained in other states, would remain on the books.  (It’s also likely that even without Section 2, states would be free to continue to ignore same-sex couples’ marriage licenses from outside states.)  This could very well lead to substantial legal confusion in terms of marital benefits, since a couple who married in Iowa (where marriage equality is legal) but moved to Missouri (where it is not) would possibly be eligible for some federal but no state benefits. As always, it would take further litigation to sort through these issues entirely.

The bottom line

To put it simply, there are several paths of action that the Supreme Court could take on the Prop 8 and DOMA cases.  Absent an invalidation of DOMA and a ruling that extended equal marriage rights to same-sex couples in all 50 states, the post-decision legal terrain will probably look different but nearly as complicated as it is right now.  There will undoubtedly be more lawsuits filed pertaining to the intersection of state and federal marital benefits if DOMA is struck down, and there could be further legal fights in California depending on the Court’s ruling on Prop 8.  And, of course, equal marriage campaigns will continue to take place in state legislatures, at the ballot box, and in the state courts.  There is plenty more to come.

4 Comments March 28, 2013

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