UA: Prop 8 / Defense of Marriage Act Updates 3/26/13

Written by scott on March 26th, 2013

Defense of Marriage ActSo much to report as the Prop 8 hearing is underway in DC.

Over at the Maddow Blog, they take a look at presumed swing vote Kennedy:

At least going into oral arguments, there’s reason for cautious optimism when it comes to Kennedy. As Erwin Chemerinsky, a constitutional law professor at the University of California, Irvine School of Law, told Sahil Kapur several months ago, “There have been two decisions in American history expanding rights for gays and lesbians: Romer v. Evans and Lawrence v. Texas. Anthony Kennedy wrote the opinion for the Court in both. He knows where history is going and that he faces the choice between writing the next Plessy v. Ferguson and the next Brown v. Board of Education. He wants to be on the right side of history.”

At WonkBlog, Ezra Klein and Evan Soltas look back at the last 8 years that led us here:

On November 14, 2004, just a few days after the election, the New York Times ran a story headlined “Groups Vow Not To Let Losses Dash Gay Rights.” The article was datelined “St. Louis,” and it recounted the first major post-election conference in which gay-rights organizers tried to regroup after an election “when voters in 11 states resoundingly approved amendments to their constitutions against same-sex marriage and gave a majority to a president depicted in one doctored video here as the Wicked Witch of the West.”

Joe.My.God reports that the Pro Prop 8 leader Andy Pugno is projecting confidence:

“But I’m confident that Tuesday morning, at 10 a.m Eastern time (7:00 a.m. Pacific), as the justices file into the courtroom, the buzz of the media will fade away and the focus will return to where it belongs—to the text of the United States Constitution and the key legal question of whether states must recognize same-sex relationships as ‘marriage.’

Gay Star News looks at what it all means:

Although it could be months before the US Supreme Court issues its rulings, this week’s hearings on California’s Proposition 8 and the federal Defense of Marriage Act (DOMA) are already historic. It marks the first time the high court has ever decided to take on gay marriage cases and it does so as multiple polls show support of marriage equality at an all-time high.

LGBTQ Nation talks about those “free” tickets to the hearings:

Tickets to the two arguments are technically free. But getting them requires lining up days or hours ahead, or paying someone else to. The first people got in line Thursday, bringing the price of saving a seat to around $6,000.

The Washington Post offers three charts to illustrate why the battle is already, effectively, over:

In our Monday newspaper column, we declared the political fight on gay marriage over — even as the Supreme Court prepares to wade into the legal and policy debate this week. (Make sure to read our counter-argument on the issue here.) While we used 800 words (or so) to make the “it’s all over” case in the newspaper, we really can do it in just three charts.

LGBTQ Nation thinks the court will ultimately rule for equality:

The time is right. A majority of Americans support gay marriage. An ABC News/Washington Post poll found 58 percent of Americans now believe marriage should be legal for same-sex couples. Public support matters because the Court doesn’t want to issue another controversial decision like Roe v. Wade, which has been subject to attack for 40 years.

Lisa Keen at the Dallas Voice has a guide to the oral arguments on Prop 8 and DOMA:

Some of the players are already well known to readers, some are not. Certainly, the key issues in the case have occupied a central focus for the LGBT community for many years now and the resolution of both cases are of enormous consequence to LGBT people throughout the country. To help readers prep for the argument and the expected crush of media reporting on the cases, the following is a quick guide to the issues, the attorneys, and what to listen for.

Over at The New York Times, they’re taking a closer look at Justice Scalia and his disregard for all things gay:

With the Supreme Court set to hear oral arguments tomorrow and Wednesday in a pair of same-sex marriage cases, there are two questions preoccupying legal writers: How will Justice Anthony Kennedy, the court’s wild card, vote, and how will Justice Antonin Scalia behave? No one expects the conservative 78-year-old jurist to have a sudden equal-protection epiphany. He has made it abundantly plain that he has no use for same-sex unions; he thinks they are immoral. In his Lawrence v. Texas dissent, for instance, he said Americans have every right to enforce “the moral opprobrium that has traditionally attached to homosexual conduct” in order to protect “themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Think Progress reports that we could win, but still lose as progressives:

McConnell and Will are both arguing that, because the Constitution does not give the federal government power over “domestic relations” it follows that DOMA exceeds Congress’ lawful powers. This is similar to the argument conservatives raised against the Affordable Care Act, and it is also compete nonsense… If Congress does not have the power to decide who pays what tax rates and who receives what federal benefits, than the entirety of America’s safety net could be in danger. Retirement programs like Social Security cannot exist unless the government can limit it to persons of retirement age. Veterans benefits cannot exist unless the government can limit them to veterans. Even progressive taxation is in jeopardy under Will and McConnell’s theory, because the government must have the power to decide who pays more and who pays less taxes.

WDEL looks at how a ruling could affect states that offer civil unions:

When the U.S. Supreme Court hears the two gay marriage cases this week beginning today, one law professor believes there’s a chance states that have a civil union law like Delaware could be be front and center. Culhane thinks that the Supreme Court could order states that with civil unions to go to full gay marriage, or it strike civil unions all together depending on how it rules.

And the The New York Times looks at the possible political backlash a ruling might bring.

Winning in court too far in advance of public opinion can generate political backlash that retards a social reform movement. The Supreme Court’s provisional ruling against the death penalty in 1972 ironically generated tremendous support for capital punishment, as 35 states quickly enacted new death penalty statutes. Similarly, Roe’s aggressive defense of abortion rights fostered a right-to-life movement that fundamentally reshaped American politics and arguably made abortion reform more contentious and resistant to compromise. And marriage equality rulings in Hawaii in 1993 and Massachusetts in 2003 ignited potent political backlashes that culminated, respectively, in enactment of the federal Defense of Marriage Act and of constitutional amendments in more than 25 states barring same-sex marriage.


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