United States Supreme Court To Take Up Prop 8 And Doma

[RobertAC]

Let the pontificating begin . . .

http://www.cbsnews.com/8301-250_162-57557877/supreme-court-to-take-up-prop-8-doma/

[Saints Alive]

From what I have heard Justice John Roberts has tried to keep it from coming to the court because he thinks it will be found unconstitutional. It would be a huge change for our society.

edit: the more that I think about it this could be an issue that leads to state secession. Especially since I believe 30 states have one man one woman language in their constitutions.

Edited December 7, 2012 by Saints Alive

[thesometimesaint]

It may or may not pass Constitutional muster. Pragmatically I don't hold out much hope that it will. It seems to be a direct assault on the equal protection clause of the Constitution but I'm no lawyer. So we'll just have to wait and see.

At this time SSM has the small majority of US citizens. However it is gaining in support while exclusive traditional marriage is loosing. There is no provision within the US Constitution to allow for succession.

[RobertAC]

Personally, the more I have read the prior cases about marriage, I think it could be a toss-up.

If same sex marriage is going to be found not to be a fundamental right, I think Wade Englund's analysis is likely to prevail. Wade is passionate about his position, but the basis for that position will not be very palatable for secular folks, and I think that the court will want to shy away from taking a position about marriage having to be about procreation.

Of course, the court could make a blanket statement supporting same sex marriage that will mean all 50 states will have it.

Or, as I predict, the court will narrowly affirm the decision striking down Prop 8 if it cannot reach a consensus about finding same sex marriage to be a fundamental right. In that case, gay marriage is limited to California.

[Saints Alive]

There is no provision within the US Constitution to allow for succession.

Which doesn't mean anything if you no longer hold alegence to the US constitution, but we've debated that before.

[thesometimesaint]

Washington state now has SSM.

[thesometimesaint]

Which doesn't mean anything if you no longer hold alegence to the US constitution, but we've debated that before.

Which by definition is treason.

[Scott Lloyd]

It may or may not pass Constitutional muster. Pragmatically I don't hold out much hope that it will. It seems to be a direct assault on the equal protection clause of the Constitution but I'm no lawyer. So we'll just have to wait and see.

At this time SSM has the small majority of US citizens. However it is gaining in support while exclusive traditional marriage is loosing. There is no provision within the US Constitution to allow for succession.

Pardon, but I thought we had this ironed out the other day. Succession and secession are different words with different meanings. And losing has one o, not two.

I do agree with you about secession being unconstitutional, though. The very attempt is treason.

[RobertAC]

Loosing the states through succession would be sad.

[DavidB]

In my opinion proposition 8 was largely doomed at its inception. The final death blow to proposition 8 came with up holding the ssm that had already occurred.

As for DOMA, is see problems with it as well.

As for State Rights and the Union, well I do not recall reading a "No take backs" clause or a "No Backies" clause. Other than a lack of sufficient armaments and will, nothing prevents a State from taking the powers granted to the federal government, which powers where given to the federal government to create the federal government.

[RobertAC]

I tend to agree about DOMA too. It has problems. While the Feds can enact laws stating that the Federal government is not required to recognize state institutions, the Full Faith and Credit clause seems to be violated where DOMA says that a state is not required to recognize the marriage performed in another state.

[Scott Lloyd]

In my opinion proposition 8 was largely doomed at its inception. The final death blow to proposition 8 came with up holding the ssm that had already occurred.

As for DOMA, is see problems with it as well.

As for State Rights and the Union, well I do not recall reading a "No take backs" clause or a "No Backies" clause. Other than a lack of sufficient armaments and will, nothing prevents a State from taking the powers granted to the federal government, which powers where given to the federal government to create the federal government.

Another civil war is the inevitable result. Nothing in the Constitution or federal statute recognizes the legitimacy of secession -- under any circumstances.

[Bill “Papa” Lee]

Which by definition is treason.

Not according to Mormon scripture, we are bound by the laws of the land "if" they allow us freedom of conscience. See D&C 134: 11, one day the laws of our land will make necessary the building of "Zion"...The New Jurusalem.

[RobertAC]

Guys, do you really think that a ruling in favor of same sex marriage is going to lead to secession? Think about the end of separate but equal. There were a lot more people who were upset about Brown v. Board of Education than this issue. The Union did not fall apart.

I suspect that if the SCOTUS rules in such a way that the whole country has SSM, that there will be some people cheering in the streets, some people cursing the court from the pulpit, and a large herd of people in the middle (who are much more interested in a Lady Gaga/Justin Bieber duet) sending out a long collective yawn across the country.

In order to secede, you have to have people interested in doing so. I don't see it on this issue.

[Bill “Papa” Lee]

Guys, do you really think that a ruling in favor of same sex marriage is going to lead to secession?

No...but someday we will go too far.

[Saints Alive]

Guys, do you really think that a ruling in favor of same sex marriage is going to lead to secession? Think about the end of separate but equal. There were a lot more people who were upset about Brown v. Board of Education than this issue. The Union did not fall apart..

There was no religious backing for segregation as there is for gay marriage that is the one huge difference.

[RobertAC]

There was no religious backing for segregation as there is for gay marriage that is the one huge difference.

I would respectfully disagree, Saints Alive. There was, many years ago, a commonly held belief that "mongrelization of the races" was against God's natual plan. Watch "Birth of a Nation" as an example. The overall theme of the film is that white people know their place, and black people know their place, but mullatos are evil.

Below is a famous scene from the movie where white men dish out justice to an evil mulatto who raped a white woman:

These beliefs are largely gone, but they had strong religious overtones. In that former society, "separate but equal" was part of God's plan.

[Saints Alive]

Where in the bible does it call blacks an abomination? I can tell you where it says that about homosexuality.

[california boy]

From what I have read, the legalizing of gay marriage for the entire country is not what is before the court. Most people highly doubt that the court would make such a ruling based on the cases before it. Most however are pretty confident that DOMA will be struck down. For those that are intersted, here is an analysis of the DOMA case that the Supreme Court is taking up. This is from a liberal sight. Perhaps someone can post an analysis of this case from a conservative site so we get a feel for how each side sees this case being played out.

Second Circuit Holds DOMA Unconstitutional, Supreme Court Up Next: An Analysis

BY ARI EZRA WALDMAN

A relatively conservative three-judge panel of the Second Circuit Court of Appeals decided today that Section 3 of the Defense of Marriage Act (DOMA), which defines marriages for the purposes of federal law as only those between one man and one woman, is unconstitutional. It also took the groundbreaking step of declaring that discrimination on the basis of sexual orientation warrants heightened scrutiny, not rational basis review, which is likely to force the Supreme Court to mediate the resulting circuit split on the appropriate level of scrutiny. Windsor v. United States follows on the heels of a similar First Circuit decision (Massachusetts, where the court used "rational basis plus") and precedes one from the Ninth Circuit (Golinski, where the district court called for heightened scrutiny, but rejected DOMA using both levels of scrutiny) and, ultimately, the Supreme Court.

The case of Edie Windsor brought a personal face to the odious discrimination wrought by DOMA. When her wife, Thea Spyer, passed away, the widowed Edie was forced to pay hundreds of thousands of dollars in federal taxes that any surviving spouse of an opposite-sex marriage would not have had to pay. With the help of the ACLU, lawyers at Paul Weiss, and the Obama Administration, Ms. Windsor challenged DOMA as a violation of the right to equal protection of the laws. Today, the Second Circuit agreed.

The stage is now set for the Supreme Court to say DOMA is unconstitutional alongside a clear statement of the appropriate level of scrutiny for antigay discrimination. Expect the grant of certiorari within a few months.

AFTER THE JUMP, I take you through a quick summary and analysis of today's decision in Windsor.

There are three substantive take home lessons from the Second Circuit's decision:

1. That Baker v. Nelson is irrelevant.

2. That antigay discrimination merits heightened scrutiny.

3. That DOMA fails to meet heightened scrutiny and is, therefore, unconstitutional.

Let's take each point in turn.

Baker v. Nelson is irrelevant and, in any event, outdated.

Baker v. Nelson was a summary dismissal of an appeal from a Minnesota Supreme Court decision that said that Minnesota law did not allow gay couples to marry and that such a law did not violate the Federal Constitution. When the Supreme Court shoots down a "summary dismissal," it is almost like ignoring it, or saying that the case does not raise any issue for a federal court to address. In doing so, the Court restricts using that case as precedent to the very specific set of facts in that particular case. And that is why Baker is irrelevant to DOMA. Windsor asked the question of whether the federal government can define marriages as opposite sex marriages for the purposes of federal benefits while Baker asked whether a state can restrict marriages to opposite sex couples in the first place.

Perhaps more importantly, the Court said that even if it is wrong about that (it is not), Baker is no longer good law. Significant doctrinal developments since Baker, which was decided in 1971, have changed the landscape of minority and gay rights, in general, and marriage rights, in particular. There was no such thing as intermediate scrutiny in 1971. Antigay discrimination did not even need a rational basis until 1996 (Romer v. Evans). And, until Lawrence v. Texas in 2003, gays were still presumptive criminals.

What's more, the court said, Baker does not foreclose us from using heightened scrutiny on antigay discrimination. Here, the Second Circuit departs from the First Circuit's decision in Massachusetts, which refused to use heightened scrutiny because Baker appeared to stand in the way and enshrined discrimination into federal law. First, the level of scrutiny for federal marriage discrimination could be different than the level of scrutiny for a state's marriage discrimination law, only the latter of which could even implicate Baker (though the Court does not say Baker would be a barrier to heightened scrutiny in that case, either). Second, the Supreme Court's refusal to use heightened scrutiny in Romer is not dispositive on anyone; the petitioners in that case gave up their call for heightened scrutiny at the trial level, so the issue was never properly before the Court.

Analysis: Almost every federal court decision on DOMA has pushed Baker v. Nelson aside and yet the Congressional Republicans defending DOMA now keep coming back with it. It is a losing argument and the Second Circuit offered us the best explanation to date: Baker refers to state law, the legalization of marriages in the first place, not the federal laws that are triggered when a valid marriage happens at the state level. Plus, Baker is outdated: it was from a time long before gay Americans were liberated from the status of enemies of the law.

Heightened Scrutiny for Antigay Discrimination

The court then recognized that the law of scrutiny in this area is in a state of flux or uncertainty. Congressional Republicans want the barest and lowest form of rational basis review. The First Circuit used a "rational basis plus" level of scrutiny that has been used for discriminatory social legislation. The district court below claimed to use simple rational basis. The Second Circuit had no dog in this fight, however; heightened scrutiny was appropriate here.

The four factors for determining use of heightened scrutiny -- history of discrimination, a defining characteristic that is relevant to the classified group's ability to contribute to society, obvious distinguishing characteristics, and minority status or political powerlessness -- are all present. And, although "immutability" and "powerlessness" are not determinative, all factors counsel in favor of heightened scrutiny.

For the next several pages, the court reasons through each factor, slapping down Congressional Republicans' sometimes hateful arguments. They tried to argue that because gays were never disenfranchised, gays have no history of discrimination. The court laughed this off, noting that the Republicans' attorney, Paul Clement, conceded that gays have been discriminated against "at least since 1920." They then tried to argue that while the status of being gay does not limit one's ability to contribute to society, the status of being a same-sex couple diminishes that couple's ability to procreate and raise children. This is Congressional Republicans at their homophobic best, and the Court not only rips them for failing to cite any authority for that falsehood but for positing an irrelevant fact for determining scrutiny levels. They tried to argue that sexuality changes over time, so gays, as a sexual identity, are not immutable. Even if that were true, the court said, it's irrelevant. The test requires an obvious distinguishing characteristic that sets apart the victimized group from the rest of the population. The fact that a law exists discriminating against them for their same-sex attraction is proof enough of the defining trait. And, they tried to argue that improvements in the political environment for gays has made gays powerful. The court again laughed this off, noting that Congressional Republicans were missing the point: the issue is not the fact of some power or improvement in political power, but rather the groups ability to protect themselves from discrimination in the political sphere. Gay American cannot do that, as evidenced by the slew of antigay laws passed against us.

Analysis: Affirming the use of heightened scrutiny for antigay discrimination is an unprecedented victory for the gay rights movement. We have been calling for this substantive change in the law for years and our efforts were exponentially aided by President Obama deciding to stop defending DOMA and declaring his Administration's position in favor of heightened scrutiny. But today's decision is not only an affirmation of what we all know to be true. It also places the Supreme Court in a unique position. Windsor disagreed with Massachusetts on the level of scrutiny, so there is now a clear circuit split on the matter and one that can only be resolved by the Supreme Court.

Although I have argued that the DOMA cases offer the Supreme Court a chance at conservative and liberal agreement, it is not clear how they will come out on the appropriate level of scrutiny. DOMA has the chance to be struck down with six votes (the four moderate-liberal justices, including Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, alongside the author of Lawrence and Romer, Justice Anthony Kennedy, and Chief Justice John Roberts, who may hate DOMA's federal encroachment and may not want to be on the wrong side of history on this case), but the scrutiny level will be up to Justice Kennedy. He purposely left the scrutiny level obscure in Lawrence and never had the option to consider it in Romer, so he may be disinclined to clarify it any more. However, he cannot deny the uncertainty he has created -- countless lawyers, courts, and academics have argued as much -- so he may be interested in clarification.

DOMA is Unconstitutional

Heightened scrutiny requires that the proponents of a discriminatory law prove that the law is "substantially related to an important government interest." That unhelpful phrase means that the justification must be really important and the stated interests must be real, not ad hoc or derived ex post. At oral argument, Mr. Clement basically conceded that none of his profferred interests -- maintaining a consistent definition of marriage, securing the fiscal state of the federal government, and, oddly, "avoiding the unknown consequences of a novel redefinition of a foundational social institution," and encouraging "responsible procreation" -- could withstand heightened scrutiny. The Second Circuit agreed.

To the extent that there ever was a uniform definition of marriage, it was whatever the state's wanted. And, if anything, DOMA created more complexity by leaving all the other differences in the various state marriage laws in place and adding a new, novel criterion it never had asked for before.

Nor can DOMA be justified because Congress hoped to save money. That government interest, though important, is not sufficient to justify discrimination alone. Here, the Second Circuit adds two points not well developed in other decisions striking down DOMA: First, the law actually effectuated a benefit withdrawal from married couples in that, previously, any married couple would get the same benefits and, with DOMA, only the opposite-sex ones could. Second, DOMA's breadth, touching on so many areas of federal law that have nothing to do with money, belies any suggestion that it has anything to do with conserving fiscal resources.

DOMA could not be justified as a means of preserving the traditional definition of marriage, an interest the court found dubious in the first place, but practically impossible to achieve via DOMA. After all, the law leaves in place marriage law in the various states, where several (and soon, hopefully 3 more) allow same-sex couples to marry.

And, DOMA could not in any way encourage responsible procreation, an admittedly important government interest, because DOMA provides no incentives for opposite sex couples to enter a marriage and then have children. Instead, the law is a sword that keeps people out of wedlock and there is no evidence to suggest that opposite sex couples will marry only if gays are kept away from it.

Analysis: In holding DOMA unconstitutional under heightened scrutiny, the Second Circuit followed its sister and lower courts by showing how unrelated DOMA is to anything other than bare discrimination against gays. It also went further. It emphasized the great reach of the law and took a logical approach to finding a connection between a law and supposed interests that make no sense. The court also put its ruling in context, noting that gay marriage used to be an unknown in marriage law. But, the law is not concerned "with holy matrimony," but with "civil marriage." It showed that its home jurisdiction, New York State, has opened the doors of marriage to gay New Yorkers, but in so doing, did not touch a church's right to and role in blessing that union in the eyes of a given conception of god. The implication is that any law concerned with such divine matters of morality has no place in American life.

Conclusion

The Second Circuit's decision in Windsor is a great victory for the gay community in several ways. In the most practical sense, it declared DOMA unconstitutional and puts Ms. Windsor one step closer to the money she was forced to pay simply because she is gay. As a substantive matter, Windsor puts us all closer to DOMA review at the Supreme Court because it is a case that raised similar issues to Massachusetts, but had unique elements. Now that the case has arrived at the Court's door in the normal course, we can expect the Supreme Court to grant certiorari within a few months.

More broadly, the decision reflects the progress of gay rights in the courts. I have spoken at length at how one decision moves other decisions, which build on other decisions, and make the next decision easier. That is why Lawrence, which was about anti-sodomy laws, Perry, which is about gay marriage in California, and Windsor, which is about federal benefits, are all related. The Second Circuit cited Supreme Court, appellate court, and district court decisions on gay rights, minorities, federal benefits, and a host of other areas to show that DOMA's discrimination is unconstitutional. And, while making obvious distinctions between DOMA and, say, state bans on the freedom to marry, progress on DOMA brings us many steps closer to overturning all state and federal laws that brand us as second-class citizens.

[Calm]

There was no religious backing for segregation as there is for gay marriage that is the one huge difference.

MLK: "It is appalling that the most segregated hour of Christian America is eleven o'clock on Sunday morning."

Won't provide links, but there are plenty who think that the "Bible commands segregation." Just google it.

Here is a link to a site that has identified verses dealing with segregation from both a positive view and a negative one:

http://www.openbible.info/topics/segregation

Edited December 8, 2012 by calmoriah

[The Nehor]

edit: the more that I think about it this could be an issue that leads to state secession. Especially since I believe 30 states have one man one woman language in their constitutions.

Not a chance. Only a few states could secede without definitely becoming second or third-world hellholes. Those few (Texas, California) would experience a severe economic depression for at least a decade.

No one is going to do this. It is just rhetoric.

[thesometimesaint]

Not according to Mormon scripture, we are bound by the laws of the land "if" they allow us freedom of conscience. See D&C 134: 11, one day the laws of our land will make necessary the building of "Zion"...The New Jurusalem.

We cried "Uncle" when the Feds simply disincorporated the Church. We have yet to feel the full force of Federal power which includes the strongest military the world has ever seen come down on us. As to Zion, I have no idea as to how that is going to come about. But I doubt it will be through military might.

[canard78]

Pardon, but I thought we had this ironed out the other day. Succession and secession are different words with different meanings. And losing has one o, not two.

I do agree with you about secession being unconstitutional, though. The very attempt is treason.

I'll avoid commenting on the thread in question as American policy/constitution is no business of mine.

But... I couldn't resist pausing to celebrate your diligence to correct spelling/grammar. My mum and I salute you.

(He says, pausing to scrutinise the same in his own post)

[Saints Alive]

MLK: "It is appalling that the most segregated hour of Christian America is eleven o'clock on Sunday morning."

Won't provide links, but there are plenty who think that the "Bible commands segregation." Just google it.

Here is a link to a site that has identified verses dealing with segregation from both a positive view and a negative one:

http://www.openbible.info/topics/segregation

I am well aware that people tried to use the bible to support segregation, but segregation isn't in the bible, at least not as clearly as Gods disapproval of homosexuality.

[cdowis]

It may or may not pass Constitutional muster. Pragmatically I don't hold out much hope that it will. It seems to be a direct assault on the equal protection clause of the Constitution but I'm no lawyer.

Just curious== does it pass constitutional muster for the state to deny a driver's license to someone who is blind? Does this deny equal protection under the law. May I point out that a blind person is allowed to apply for such a license.

Anyway, I have asked this question several times, and have yet to get a response.

Edited December 8, 2012 by cdowis