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Liveblog: Supreme Court rulings on DOMA, Prop 8

Community/Meta DOMA trials LGBT Legal Cases Marriage equality Prop 8 trial Supreme Court

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.


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