Sunday, December 09, 2012

Supreme Court to hear Prop 8 and DOMA cases

By Mustang Bobby

(Ed. note: For more on this, see my post from yesterday. My initial sense is that Chief Justice Roberts (who, I think, thinks about his and his court's place in history and how he and it will be perceived) will vote with the liberals and that marriage equality will win. Or the majority will punt, refusing to make any sort of definitive ruling. It's hard to see the justices collectively ruling that same-sex marriage is unconstitutional given recent dramatic shifts in public opinion and legislative action. -- MJWS)

The Supreme Court will hear arguments on both the Defense of Marriage Act (DOMA) and California's Prop 8. Here's some background on both cases:

The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court's decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California voters had violated the federal Constitution the previous year when they overrode a decision of the state's Supreme Court allowing same-sex marriages.

A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the presumed swing member of that court, Justice Anthony M. Kennedy.


The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for the purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. The Windsor case made its way to the Supreme Court unusually quickly because the parties had filed an appeal from the trial court’s decision in the case, which also struck down the law, even before the appeals court had ruled.

The two cases will go before the court by March with rulings expected by the end of June.

As expected, both sides are crowing that their side will win (JMG has a compendium of reactions), but since at least one request for a ruling by the Supreme Court came from the losing side, my instinct tells me that marriage equality will win.

I have no basis for that conclusion other than the fact that both DOMA and Prop 8 have been ruled unconstitutional by judges and courts that are known for being conservative and the arguments that won the case were based on legal interpretations of the application of the equal protection clauses in the Constitution as opposed to those arguments from the anti-equality supporters who based their arguments on junk science and theology.

Another factor is that since the time that both DOMA and Prop 8 were passed, attitudes in America about marriage equality have gone through a remarkable change. When DOMA became law in 1996, no state had legalized same-sex marriage, Don't Ask Don't Tell was still on the books, and few on either side of the issue believed that there was much of a chance for marriage equality in the near future. But today, the number of states that allow it has gone from zero to nine, and three of them — Maine, Marlyand, and Washington — have affirmed the right by popular vote, which had always been the highest bar to get over. Prior to November 6, 2012, the anti-marriage folks argued that marriage equality was forced "down the throats" (their words, Dr. Freud) by activist judges and out-of-control legislatures and that the voters should decide, pointing to a number of states where the measures for equality had failed at the ballot box.

But now the tide has changed, and it's not just because attitudes about the LGBT community are becoming more enlightened. The day-to-day implications of the unfairness of DOMA are being made clear as couples get married and face the real-life consequences of living under state-sanctioned marriage equality but denied the rights of a married couple under federal law. The case in California points out that even a vote of the people can violate the Constitution if enough people are frightened into voting for something based on fables and fear.

I know right off that there are two votes against the cases in the Court right now: Antonin Scalia and Clarence Thomas. Justice Scalia has said that it would be "easy" to overturn gay rights rulings, and Justice Thomas, while not as virulently squeamish about Teh Gay as Mr. Scalia, tends to believe that the states are the only ones who can determine individual rights. He voted to uphold Colorado's Amendment 2 that outlawed anti-gay discrimination laws in municipalities. I'll bet that DOMA is the one case on which he'll side with the proponents of federalism.

Coincidentally, I was watching the film Lincoln yesterday when the news broke about the Court deciding to take the cases. I won't spoil if for you, but there is a part of the story where the case is being made to ban slavery in the United States through the 13th Amendment to the Constitution. The argument came down to whether or not African-Americans were equal to white men in society or before the law. In 1865 it was commonly accepted that black people were inferior in terms of society and stature, but, as Thaddeus Stevens argued, they are equal in the eyes of the law.

That was a pretty radical argument back then. Today, while it's off the scale to compare the denial of marriage equality to slavery, the point is the same: while society may treat citizens differently and even unfairly, they cannot be denied their fundamental rights. The Constitution makes no provision for partial equality, and those rights and responsibilities must be available to all of us.

It is now up to the Supreme Court to prove that case.  Let us hope they listen to Thaddeus Stevens.

(Cross-posted at Bark Bark Woof Woof.)

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