USA: Prop 8 / Defense of Marriage Act Updates #2 3/15/13

Written by scott on March 15th, 2013

Defense of Marriage ActThe updates on dDefense of Marriage Act and Prop 8 at the Supreme Court continue to roll in.

First off, the Supreme Court has agreed to give the Department of Justice time to speak during the Prop 8 Hearing, The Washington Blade reports:

In court orders on Friday, justices announced the U.S. Solicitor General will be allowed speaking time for oral arguments in the case, which are scheduled for March 26. “The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted,” the orders states. The Justice Department had filed a request for speaking time in the oral arguments shortly after it filed a legal brief against Prop 8. In the brief, the Obama administration argued Prop 8 should be overturned because laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.

Lisa Keen at The Dallas Voice looks at the DoJ’s briefs:

DOJ did not argue for strict scrutiny — the toughest level of judicial review. And it did not argue that DOMA is unconstitutional if judged under the most basic level of scrutiny, rational basis. The level of scrutiny matters. Generally speaking, there are three levels: rational, heightened, and strict. Until the 2nd Circuit decision in Windsor, most courts, including the Supreme Court, have examined laws that disfavor LGBT people against the easy rational basis standard. To pass rational basis, a law must simply be rationally related to achieving a legitimate governmental interest. The intermediate level of scrutiny — heightened scrutiny– requires that a law must be “substantially related” to achieving an “important” governmental interest. And strict scrutiny requires that a law be “narrowly tailored” to achieve a “compelling” governmental interest.

In a follow-up article, Lisa Keen looks at the “standing” issue. From the Dallas Voice:

Standing is another way of saying “right to sue.” To have the right to sue, a party must have suffered or be threatened with a discernible injury, the lawsuit must be directed at the cause of that injury and the controversy must be one that a court decision could remedy. Section 2 of Article III gives the courts jurisdiction to review “all cases … arising under” the Constitution and to “controversies to which the United States shall be a party.” The question about legal standing for the Yes on 8 coalition was first raised by the plaintiff couples’ legal team in the lower courts, and in their brief to the Supreme Court, Olson and Boies argued that Yes on 8 lacks standing and that its appeal should be dismissed. As their brief argues, Yes on 8 groups have “never once suggested that permitting same-sex couples to marry could harm them — or anyone else — personally.”

Jess Bravin looks at Chief Justice Roberts and where he may come down on the marriage equality suits. reports:

Chief Justice Roberts doubtless knows “that history is going in a certain direction,” even if he isn’t persuaded that the Constitution requires invalidation of laws denying recognition to gay marriages, said Richard Pildes, a law professor at New York University. If that leads him to side against Mr. Obama’s position, it could place the chief justice in “a tragic kind of position–knowing how a decision they believe is correct today is going to look bad 15 years down the road.”

SDGLN talks about the rallies planned for and against marriage equality at the Court:

Supporters and opponents of marriage equality are busy making final plans for large rallies in Washington, D.C., during the last week of March when the U.S. Supreme Court hears oral arguments on two high-profile cases involving California’s Proposition 8 and the Defense of Marriage Act (DOMA). D.C. police have assigned the two groups to different areas of the city in an effort to keep apart the dueling rallies. However, the anti-gay marchers are scheduled to walk past the steps of the Supreme Court building, where marriage-equality supporters will be gathered. Read all about who is involved in each rally, and what their plans are.

Speaking of the rallies, NOM got egg on its face when a band they had booked to play their rally backed out after finding out NOM opposed marriage equality. reports:

The Lee Boys, one of two musical acts scheduled to perform at NOM’s upcoming March for Marriage in Washington D.C. around the time of the Supreme Court hearings, has dropped out after being informed by blogger Jeremy Hooper about NOM’s agenda.

In another NOM embarrassment, Joe.My.God reports that the musician who NOM is using to promote their anti gay marriage march, Katie Herzig, supports marriage equality.

Eleven more days…


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