USA: Prop 8 / DOMA Updates 3/29/13 #2

Written by scott on March 29th, 2013

Defense of Marriage ActYes, more prop 8 / Defense of Marriage Act news. One of these days things will quiet down a bit. But for now, did you know that today was the day when the Supreme Court justices were to vote on the outcomes in the two cases? SDGLN reports:

Today, the nine justices of the U.S. Supreme Court will vote in private on two momentous cases involving gay rights. These nine people hold our futures in their hands and they have the power to right the terrible wrongs of two centuries of discrimination against LGBT Americans. Today, the justices will vote on the Proposition 8 appeal… Today, the justices will also vote on the Defense of Marriage Act (DOMA). At Wednesday’s oral hearings, the justices seem to indicate that there are at least five votes in favor of striking down the discriminatory law that prohibits legally married gay and lesbian couples from more than 1,200 benefits that are afforded to legally married straight couples.

At the Chicago Tribune, Bill Press accuses the Supremes of waffling on Prop 8 and marriage equality:

How disappointing, then, to see nine Supreme Court justices waffle on the issue. Sure, they were uniformly strong in questioning the constitutionality of the Defense of Marriage Act, or DOMA, signed into law by President Bill Clinton in 1996. But that’s easy… It was on the second marriage equality case before them, California’s Proposition 8, that the justices signaled a lack of moral courage. In their oral arguments, rather than focus on the merits of the issue before them, six justices spent most of their time complaining about why the case was before them at all. Why do we have to deal with this issue now? What’s the rush? After all, cried Justice Alito, gay marriage is “newer than cellphones or the Internet.” Oh, stop whining and do your job.

Business Week looks at Justice Ginsberg’s role in the hearings:

Justice Ruth Bader Ginsburg is sometimes barely audible when she speaks at the U.S. Supreme Court. That doesn’t mean she isn’t heard loud and clear… Ginsburg delivered one of the most memorable lines of the two days of arguments when she said yesterday that a federal law limiting benefits to married gay couples would create “two kinds of marriage — the full marriage, and then this sort of skim-milk marriage.”… “It is clear that she is respected and even somewhat feared by her adversaries on the bench,” said Garrett Epps, a University of Baltimore law professor who attended the argument.

Equality on Trial looks at another Justice – Justice Alito – and wonders if he could be the sixth vote for repealing DOMA despite his conservative pedigree:

My read of this question is that it’s as if he’s asking whether it’s even rational for Congress to define marriage as such, instead of creating benefits under a (nondiscriminatory) label unrelated to marriage, and using whatever definition it chooses, because avoiding defining marriage when states could and are changing the definition now, may make more sense. It could be that he was just asking a question that another Justice had, as a way to get a definite response to someone else’s worry, but in light of the rest of his questions during the argument, it came off as more skeptical of defining marriage in the way that DOMA does, across so many statutes.

At The Washington Blade, Chris Johnson reviews the U.S. solicitor general’s performance at the hearings:

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender and Sexuality Law, said she was “uncomfortable” with Verrilli’s assertion that states may have justification to ban couples from marrying. “He seemed to suggest that they might actually have a legitimate reason for maintaining the exclusion, and that did not seem necessary to me, given the arguments that he was making,” Goldberg said. “It did not feel right for the government’s attorney to suggest that their might actually be a plausible reason for a state to exclude same-sex couples from marriage.”

Who decided to take the cases in the first place? The New York Times thinks they have the answer:

As it turns out, it would seem that the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject. The aha moment came on Tuesday. After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand. “It’s too late for that now, isn’t it?” he said, a note of glee in his voice. “We have crossed that river,” he said. That was a signal that it was a conservative grant.

Dot429 speculates what the repeal of the Defense of Marriage Act would mean. For example:

Another issue is inheritance; in states without any kind of legal recognition for them, a domestic partner only gets what their late partner’s will grants them–which can mean nothing, if there is none. A change in federal law could result in inheritance equality, with or without marriage equality; a surviving partner could potentially inherit like any other spouse, automatically upon the death of the other and no taxes owed.

Also at Dot429, Rt. Rev. Marc Handley Andrus calls for repentance over Prop 8 and DOMA:

On Tuesday, March 26, I preached at the annual Chrism Mass for the clergy of the Episcopal Diocese of California. The appointed text was from Luke’s gospel and deals with the need for repentance. In this sermon, I challenge the notion that the text was a call to individual repentance and instead suggested that in it my brother Jesus calls for group repentance. At the conclusion of this mass, I blessed oils that will be used in congregations throughout the Bay Area for healing… Overturning Proposition 8 and DOMA would provide a beginning for the United States and California to repent for the collective harm that has been done to LGBT people legally; the harms of which have in turn led to violence in a multitude of forms.

Queerty thinks that the Supreme Court overturning DOMA won’t help republicans all that much:

But if the Supreme Court decides to take the weasel road by striking down DOMA and leaving marriage up to the states, the GOP may have the worst of all possible worlds. Here’s why: Statewide ballot measures to approve marriage equality will multiply, which means the religious right will be out in force. If the party is wishy washy, they’ll be very angry, which will affect turnout for other races. If the party forsakes them altogether, there will be a gigantic rift in the party (which is bound to come anyway).

Erin Fuchs at Business insider frets that the two cases could work against one-another:

The tension between the two legal theories was evident when Roberta Kaplan was arguing the case against DOMA for her client, 83-year-old lesbian widow Edith Windsor. Kaplan argued that DOMA violates the Equal Protection Clause of the Constitution, rather than stressing that it infringes on states’ rights under the principles of federalism. Chief Justice John Roberts asked Kaplan whether it would violate states’ rights if the federal government “went the other way” and said gay couples explicitly had the right to marry.

And over at HRC, they’ve posted a couple Best-Of Videos, as Joe.My.God reports.


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