USA: Prop 8 / Defense of Marriage Act Update 3/28/13

Written by scott on March 28th, 2013

time-magazine-coverSome follow-up stories this morning on the Supreme Court hearings in Prop 8 and Defense of Marriage Act.

Time Magazine ran a great set of covers this morning on marriage equality. has the story:

To illustrate Von Drehle’s story, TIME invited same-sex couples in California and New York to share some intimate moments for photographer Peter Hapak. Two of these couples, Sarah Kate and Kristen Ellis-Henderson (married in 2011) and Russell Hart and Eric LaBonte (engaged since 2010), appear on our cover this week. TIME has also posted a slide show of many of the photos.

Jeffrey Toobin, at the New York Times, also thinks the fight is all but over:

This is what I will remember about the atmosphere at the Supreme Court during the same-sex marriage cases: that it wasn’t terribly memorable. The place was relaxed. The Justices were attentive but unemotional. The audience was cheerful. It was a lot like most arguments before the Justices, except that every seat in the courtroom was taken. The reason for the mellow vibe was unspoken but clear. Everyone knows that same-sex marriage is here to stay; indeed, it’s expanding throughout the country at a pace that few could have imagined just a few years ago. The Justices were not irrelevant to the process, but they weren’t central either. They knew that–and so did everyone else.

The Cato Institute also thinks DOMA is a goner. From The Washington Blade:

Cato Institute senior fellow Ilya Shapiro, who attended Wednesday’s oral arguments at the high court, said the court’s four liberal justices would likely invoke the Constitution’s “equal protection” clause as grounds for overturning DOMA’s Section 3, which prohibits the federal government from recognizing same-sex marriages. Shapiro said comments made by Justice Anthony Kennedy, who is considered the court’s swing vote on DOMA, indicate Kennedy would vote to strike down DOMA based on grounds that it violates “federalism” or states’ rights protections under the constitution.

But that approach s not without its dangers. Over at ScotusBlog, Tom Goldstein explains what the conservative Justices’ plan may have been in taking these two cases:

But if DOMA is going to be decided as a federalism case, Hollingsworth becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld. In fact, there is a realistic chance that the Court’s most conservative Justices understood that dynamic from the beginning and for that reason voted to grant certiorari in Hollinsgworth. In effect, they would put the Court in the box fully grappling with the implications of a ruling invalidating DOMA. To then also invalidate Proposition 8, the Court would have to go quite far in applying heightened scrutiny and invalidating the traditional definition of marriage, notwithstanding its professed concerns for states’ rights.

In simpler terms, invalidating DOMA could mean upholding Prop 8.

Mark Sherman at Edge Boston wonders if the Justices will simply walk away from the Prop 8 case:

But now the justices were openly discussing essentially walking away from the case over California’s Proposition 8, a voter-approved ban on gay marriage, without deciding anything at all about such unions. Indeed, this case offers a rare glimpse at the court’s opaque internal workings, in which justices make cold political calculations about what to do and Kennedy’s often-decisive vote can never be far from his colleagues’ minds.

Think Progress reports that the Obama Administration was simply following the “Roberts Rule” when they refused to defend DOMA:

But if Roberts and his fellow conservatives don’t like Obama’s decision, they have only one person to blame for laying the groundwork for it — Chief Justice Roberts. In 1990, the Justice Department was tasked with defending a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Despite the fact that none of the traditional reasons why DOJ might refuse to defend a federal law were present in the case, then-acting Solicitor General Roberts refused to defend the law anyway. Instead, Roberts signed a brief arguing that the law was unconstitutional. Ultimately, the law Roberts refused to defend was upheld by the Supreme Court. So when the Obama Administration refused to defend DOMA, it did nothing more than follow the “Roberts Rule” and travel the path laid by Chief Justice Roberts himself. has the video of Rachel Maddow discussing the DOMA hearings:

Last night, Rachel Maddow parsed the fascinating Supreme Court arguments over DOMA, highlighting the newsworthy moments and the coined phrases, “skim-milk marriage” for one. She also welcomed GLAD attorney Mary Bonauto, who fought another high-profile DOMA case that was under consideration by SCOTUS but was rejected in favor of the Edie Windsor case because Justice Kagan had to recuse herself.

And David Crary at Edge Boston thinks the fight is far from over, no matter what the Court rules:

In any case, it’s unlikely that some of the most conservative states – those that adopted gay-marriage bans by overwhelming margins – will recognize same-sex marriages unless forced to by the courts. A likely result is a steady stream of state-level lawsuits by gay couples, according to Boston-based lawyer Mary Bonauto, whose work with Gay and Lesbian Advocates and Defenders helped legalize same-sex marriage in several New England states… Depending on how such lawsuits fare, Bonauto said, “I think this issue could be back at the Supreme Court in a number of years.”

So buckle up – it ain’t over yet.


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