DOMA

  • March 27, 2013

    by Jeremy Leaming

    In a powerful, personal piece for USA Today, the Constitutional Accountability Center’s Judith Schaeffer explains why it’s far past time for the demise of the so-called Defense of Marriage Act.

    Schaeffer, vice president of CAC and a longtime attorney handling constitutional matters, and her partner Eileen Ryan had hoped to get married in 2004 after then-San Francisco Mayor Gavin Newsom ordered city officials to issue marriage licenses to same-sex couples. Schaeffer and Ryan planned a trip to San Francisco to wed, after nearly 26 years together, but the California Supreme Court moved too quickly and shut down “Mayor Newsom’s noble endeavor,” Schaeffer writes. Subsequently the couple was able to wed in Canada. Schaeffer notes the couples’ “wedding announcement joyfully expressed our ‘gratitude to the enlightened people of Canada.’”

    Now before the U.S. Supreme Court are two cases that could decide whether lesbian and gay couples have a constitutional right to wed. As noted here yesterday, oral argument in the first case, Hollingsworth v. Perry, which involves a constitutional challenge to California’s ban on same-sex marriage, did not bode well for a high court opinion declaring that same-sex couples have a constitutional right to marry. (It appeared the justices were searching for a way to avoid reaching the question; and tossing the case on standing grounds may well be that avenue.)

  • March 20, 2013
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law, Saint Paul, Minnesota. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    As most readers realize, the Supreme Court asked all parties in both of the upcoming marriage cases to brief and argue issues of standing. The possibility that either or both of the cases could be dismissed on the basis of a lack of Article III standing should therefore be taken seriously. 

    In particular, regarding the Prop 8 case, Hollingsworth v. Perry, I have given some thought to a 2011 opinion of the California Supreme Court that specifically addressed the standing of the Prop 8 proponents.   The Prop 8 proponents emphasize this California opinion in defending their standing before the U.S. Supreme Court. However, in this posting I assert that the U.S. Supreme Court should not give any substantial weight to the California Supreme Court’s opinion.

    To start with, I’ll say that dismissal for lack of standing in either or both of the cases could have at least a modestly positive result for same-sex marriage rights. A lack of standing in either case would be attributed to the litigants petitioning the Court in opposition to same-sex marriage.  Failure of standing would thus go against the opponents of same-sex marriage. Contrarily, any such dismissal is most likely to favor, at least to some extent, the litigants who are advancing same sex-marriage. For those of us supporting same-sex marriage rights, that would most likely be a positive development. 

    By the same token, however, any such dismissal would also probably result in a relatively narrow ruling with relatively limited effects. That is, in the Prop 8 case, dismissal for the proponents’ lack of standing could result in the reinstatement of the District Court’s determination that Prop 8 is unconstitutional. But such a result would not necessarily affect the constitutionality of similar propositions adopted in other states. 

  • March 8, 2013

    by Jeremy Leaming

    It took him long enough to disown one of his more atrocious antigay actions he took as president, but Bill Clinton has finally called for the demise of the so-called Defense of Marriage Act.

    In a column for The Washington Post, Clinton writes, “On March 27, DOMA will come before the Supreme Court, and the justices will decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact incompatible with the Constitution.”

    There are two cases the U.S. Supreme Court will hear at the end of this month that raise constitutional issues surrounding marriage equality. In Hollingsworth v. Perry, the justices will consider whether California’s Proposition 8 subverted the equality rights of gay and lesbian couples, and in U.S. v. Windsor, the justices will weigh the constitutionality of a DOMA that bars the federal government from recognizing same-sex marriages, denying scores of federal benefits to couples who have been wed in states that recognize same-sex marriages.

    The Obama administration has lodged briefs in both cases with broad calls for equality. Scores of other organizations have lodged friend-of-the-courts briefs arguing for and against marriage equality. (SCOTUSblog provides access to all those briefs here and here.)

    The merits brief on behalf of Edith Windsor, the woman challenging the constitutionality of the DOMA provision, advances a resounding call for an end to federal discriminatory treatment of lesbian and gay couples.

    Under DOMA the brief notes that the “federal government regards gay couples as not married even if they are married under state law.” [Nine states and the District of Columbia recognize allow same-sex couples to wed.]

    “DOMA excludes married couples who are gay,” the merits brief continues, “from all the rights, privileges, and obligations that the federal government otherwise affords married couples. Ms. Windsor’s situation is representative. In addition to be being denied the ability to claim the estate tax deduction on behalf of her deceased spouse’s estate, she has also been denied the Social Security death benefit to which surviving spouses are normally entitled.”

    Beyond going through all the federal benefits gay couples are denied because of DOMA it also provides a history of the creation of the discriminatory law. It notes, for instance, that DOMA “sped through Congress in large part because of the strong views many members of Congress expressed at the time about the morality of being gay. During one day’s debate, a Representative declared homosexuality ‘is based on perversion, that it is based on lust.”

     

  • February 28, 2013

    by Jeremy Leaming

    The Obama administration is weighing in on the constitutional challenge to California’s anti-gay initiative Proposition 8. And like it did in a separate case before the Supreme Court challenging the so-called Defense of Marriage Act, the administration is advancing a call for equality.

    The case, Hollingsworth v. Perry is from the U.S. Court of Appeals for the Ninth Circuit, which last year invalidated Proposition 8, in part, because it “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.”

    The Obama administration had no obligation to weigh in, but did so on the last day to lodge briefs with the high court.

    “California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important government interest. Proposition 8 thus violates equal protection,” the administration’s brief states.

    SCOTUSblog’s Lyle Denniston says the administration’s brief “could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.”

    Denniston continues, “What the brief endorsed is what has been called the ‘eight-state solution’ – that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through ‘civil unions’) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.”

    The administration’s brief nonetheless provides what could also be seen as a robust call for equality stretching from coast to coast. For example, the administration argues that laws classifying lesbians and gay men should be subject to “heightened scrutiny.”

    “For certain protected classes, however, heightened scrutiny enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and provides an enhanced measure of protection in circumstances where there is a greater danger that the classification results from impermissible prejudice or stereotypes. Because sexual orientation is a factor that ‘generally provides no sensible ground for different treatment,’ laws that classify based on sexual orientation should be subject to heightened scrutiny,” the brief states.

  • December 20, 2012
    Guest Post

    by Dan Urman, Director of Northeastern University’s Doctorate in Law and Policy. Urman is also a member of the ACS Boston Steering Committee.

    On Dec. 12, as part of the ACS Boston Lawyer Chapter’s “Legal Legends in the Law” series, Laurence Tribe reflected on his remarkable career as a constitutional law professor and Supreme Court litigator.  Tribe, Carl Loeb University Professor at Harvard University, began by providing an overview of the Supreme Court’s decision to hear two cases related to marriage equality: Windsor v. U.S. and Hollingsworth v. Perry. Disagreeing with popular news reports already predicting the outcome, Tribe argued that more than one justice is uncertain about how he or she will vote.

    Tribe (pictured) has decades of experience writing, teaching, and litigating constitutional rights for gay and lesbian Americans, often at his professional peril. He referenced his discussion of sexual orientation in his 1978 Treatise, American Constitutional Law, taking a stance well outside of the legal and social “mainstream.”  \Tribe argued that laws discriminating against individuals based on sexual orientation were “indistinguishable from laws discriminating against individuals based on their race or gender.”  Many friends and colleagues advised him against taking such a position publicly, because it could cost him a position on the U.S. Supreme Court. These warnings resurfaced when he prepared to testify against Judge Robert Bork’s 1987 Supreme Court nomination. Senator Alan Simpson (R-Wyo.) told Professor Tribe that it would be great to see “both of them (Bork and Tribe) on the Court,” and if Tribe testified against Bork, he would be “burning a bridge.”  Twenty-five years later, Tribe said that if serving on the Court meant holding back his actual views, it was a bridge he did not want to cross.