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Open DOMA IS GUTTED Thread

tigtog

Hurrah for the next step forward for marriage equality.

The Supreme Court on Wednesday struck down as unconstitutional a key part of the 1996 Defense of Marriage Act that denies federal benefits to same-sex couples who are legally married in the states where they reside.

The decision was 5 to 4, with Justice Anthony M. Kennedy joining the court’s liberals [Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan] to form the majority. It did not address the question of whether there was a constitutional right to same-sex marriages.

[…]

In a second ruling Wednesday morning, the court gave another boost to same-sex unions, clearing the way for gay marriages in California by declining to rule on the state’s Proposition 8, which defined marriage as between one man and one woman.

In the DOMA case, Justice Antonin Scalia read a lengthy and scathing dissent from the bench, saying the court should have left the matter for Congress to settle and had unfairly labeled proponents of traditional marriage as bigots.

[…]

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. also dissented.

Roberts wrote separately to emphasize that the opinion did not address a broader right to marriage.

“We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples,” Roberts wrote. “That issue, however, is not before us in this case.”

Still a long way to go, but at least one major plank of discrimination and heartache has been set aside.

30 thoughts on Open DOMA IS GUTTED Thread

  1. I have no idea what guiding philosophy underlies the court’s decisions in the past few days. Some pleased me (no patenting genes, no more DOMA, striking down prop 8), some angered me (VRA, affirmative action, sexual harassment, Baby Girl vs. Adoptive Couple), and some have just baffled me.

    But – this is good news!

    1. Well, the Court’s underlying philosophy is at least partially tied to the need to interpret the law (or at least appear to do so) consistently, reasonably, and in line with precedent.

      So, while I’m entirely a fan of the VRA, the Court’s decision to strike part of it down isn’t entirely ideologically opposed to their decision to strike down DOMA; the idea that it is stems from viewing the court as a purely partisan political body, instead of the reality which is that it’s a mix of a partisan political body and a scholarly legal body.

      1. Really? Because I admit it baffles me that the conservative wing of the Court, which usually styles itself as strict-constructionist and makes noises about deferring to congress, would strike down the VRA.

        1. While I am not going to defend the decision in Shelby County, i think this particular set of criticisms is unfair. No member of the Supreme Court identifies as a “strict constructionist,” and I don’t think one ever has. Arch-conservative Scalia has actually said that not only is he not a strict constructionist, but nobody else should be either.

          Talk about deference to Congress is largely just rhetoric. If you want to uphold a law, you talk about deference to Congress; if you want to strike it down, you don’t. This is quite bipartisan. There was no deference to Congress in Windsor (the DOMA case): instead, the majority opinion had long passages expounding on how family law has traditionally been the province of the states.

      2. You’re right; it is a mixed body — four, sometimes five, partisan political hacks and four, sometimes five, legal scholars.

  3. I am so very happy. Both in general, for every single person who will benefit, and personally. Not for myself, since the chances of my ever marrying again (with someone of the same sex or otherwise) are essentially nil for a number of reasons, but for my son. Who called me very excitedly this morning to ask if I’d heard the news. Yes, I had!

    Who knows; perhaps those who used to argue that civil unions were just as good as marriage — an argument which never made sense to me — will now have to admit that it’s no longer possible to make that argument (what with same-sex marriages entitled to federal recognition, unlike civil unions), and will make it more likely that additional states like will legalize same sex marriage, and that in New Jersey, Governor Christie will either change his mind, or his veto will be overriden.

    Let’s also hope that one of the next steps will be for the challenges to Section 2 of DOMA (which allows states to refuse to recognize same-sex marriages entered into in other states) to start succeeding. There’s admittedly nothing in today’s decision actually compelling that result, and the decision is replete with language about federalism and deference to state decisions on marriage, but some of the good language in the decision about due process and equal protection, and deprivation of rights, would seem equally applicable in a Section 2 context.

    Regarding Scalia’s dissent, I think I predicted a long time ago that any opinion he authored would contain the words “homosexual sodomy.” Indeed, his dissent contains exactly those words. He’s so predictable. His dissent is basically one big “I am not a hater” whine, replete with references to how this is supposedly a “stolen” victory, and how “sure” he is that the people who passed DOMA weren’t solely motivated by a desire to harm gay and lesbian people. Right.

    What a contemptible human being he is; I don’t care that once in a great while (as in some First Amendment contexts) he comes out on the right side of things.

    If someone had told me ten years ago that this much would have been accomplished, I wouldn’t have believed it. Even though there’s still an awfully long way to go. And even though I’ve seen nothing to indicate that ENDA is likely to pass anytime soon, at least not in a trans-inclusive form. People always say that trans acceptance and trans rights are 20 years behind gay and lesbian acceptance and rights. There are times I think things aren’t quite so bad, and other times I feel that trans people are a great deal further behind than that; certainly with respect to societal acceptance. Of course, it’s quite unlikely that I’ll still be around in 20 years given my health problems, so I’ll probably never find out.

    1. I think Kennedy’s opinion contained language that definitely paved the way for a more broadly inclusive SCOTUS decision on marriage equality. Perhaps even on a federal level, even though it sought to shore up the state’s rights argument. My favorite part of his opinion (admittedly all dicta from a legal pov) was the following:

      By this dynamic DOMA under- mines both the public and private significance of state- sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify.

      I’m hopeful after this opinion that more states will extend marriage equality to all of their citizens, and I also believe that Kennedy’s opinion in this case will eventually be considered as one of the most significant one’s issued by SCOTUS in this century.

    2. Let’s also hope that one of the next steps will be for the challenges to Section 2 of DOMA (which allows states to refuse to recognize same-sex marriages entered into in other states) to start succeeding. There’s admittedly nothing in today’s decision actually compelling that result, and the decision is replete with language about federalism and deference to state decisions on marriage, but some of the good language in the decision about due process and equal protection, and deprivation of rights, would seem equally applicable in a Section 2 context.

      I doubt it. Section 2 has always been redundant; it’s been established since at least the era when Southern states mostly had anti-miscegenation laws and northern states mostly didn’t that the Full Faith and Credit Clause does not compel a state to accept a “foreign” (i.e., celebrated outside its borders) marriage that is contrary to its public policy. I think there is no chance that FF&C will be the mechanism by which marriage equality spreads across the United States. Rather, I would predict that within three years, a challenge to one of the many state laws or constitutional amendments banning same-sex marriage will reach the Court in a procedural posture that won’t allow them to dodge, and that at that time Kennedy will vote to recognize a constitutional right to marry the (single) partner of one’s choice.

    3. I’m in much the same boat. Twenty years ago, this might have made my life different. Not sure I’m good for another twenty.

      My Positively Last Boyfriend lives in California and has been engaged for a few months; he should be one of those most immediately affected by the P8 punt.

      I hope you’ll at least have the chance to attend a wedding in a parental function (should that be your son’s chosen path) and that, if you do, the occasion proves to be all you hope.

      1. Thank you, Douglas. I hope so too, very much. There aren’t too many things that would give me greater joy than being able to be present at such an event.

  4. It is especially exciting to me that this decision came on the 10th anniversary of Lawrence v. Texas, which overturned sodomy laws nationwide. I’m sure there is a joke here somewhere about saving sex for marriage … My headache isn’t letting me get there, though.

    I know it seems like progress is occurring at a glacial speed, but it seems like we’ve come a long way in a decade, back when it was actually legal for states to criminalize same-sex sex. Even people like my grandmother have done a total 180 in just a few years — she went from “Marriage is about having children” in 2000 to “Marriage is about love” in 2006.

    It’s happening! Slowly but surely.

  5. If I marry a man in Massachusetts and then go to Kentucky and marry a woman, am i committing bigamy? Am I only committing bigamy if I return to Massachusetts?

    1. As long as you stay in Kentucky, and as long as Kentucky refuses to recognize the validity of same-sex marriages entered into in another state, I don’t see how you can be charged with bigamy there.

    3. You’d probably get audited by the IRS (for having both of your spouses trying to claim that they are married to you), but I have no idea what the outcome would be.

    4. You probably are. State bigamy statutes usually recognize marriages that were lawful where performed even if they are otherwise legally invalid in that state. Some Western states actually go so far as to criminalize plural marriages that are purely social/religious, with no attempt to obtain a legal marriage to more than one person. (These laws are aimed at FLDS types.)

  6. Thank you Donna.

    The Section 2 challenges to DOMA face an interesting dynamic. The Perry case, the Prop 8 case, was decided solely on standing, which means to me that there were not five votes either way for a decision on the merits. It’s a wierd coalition: two conservatives and three from the moderate bloc in the majority, and Kennedy with two conservatives and a moderate against standing. Anyway, there were clearly four judges each way on Prop 8, and neither group could get Kennedy on their side for a merits decision, and the decision on standing is a punt.

    On Section 2, the alignment doesn’t change much. It’s still 4-4 with Kennedy unwilling to be the judge that forces the Gulf Coast states to recognize marriage equality, but also unwilling to be the fifth vote for another Bowers v. Hardwick that would destroy his legacy.

    So the cases will work their way up. As Scalia said, some couple in New York will move to Alabama. They may litigate their entitlement to federal benefits there, but also they may challenge DOMA Section 2. There will be a lot of folks in potentially similar circumstances. Those folks will be sympathetic to all but the most hardened bigots. The District Courts will decide the cases, and the Circuits will decide the appeals. And the losers will appeal to the Supreme Court … which will dodge it. They don’t actually have to hear most cases; they pick and choose. So I think different Circuit Courts will decide different ways, producing what is called a “split in the Circuits.” The First and Second and Third, collectively covering New England and the Mid-Atlantic, will go the right way, as will the Ninth. The Fourth, Fifth and Eleventh down South will surely go the wrong way, given their current makeup. (The Seventh in Chicago will depend on the panel. I won’t predict the 6th, 8th or 10th.) And the Supreme Court will sit on its hands and wait.

    But while they wait, the side of justice wins. It’s not fair to make people wait for fundamental rights, but the Scalia side lost its best chance yesterday. If they didn’t get Kennedy yesterday, the facts on the ground and the political lay of the land are only going to encourage him to strike Section 2 for the same reasons the Court struck Section 3. Kennedy has cares about being within norms of international human rights, and he acknowledges that marriage equality is a human rights issue. As more states and more countries and more of the American public support it, he’ll only get more willing to do so himself.

    If Obama gets to replace Scalia (or Thomas, but Scalia’s older) the replacement will certainly reduce that bloc to three; any Obama replacement for RBG will match her commitment. (My prediction is Goodwin Liu.)

    If the conservative bloc remained unchanged, if the next POTUS were a Republican, if one of the four moderates left the bench, by that time the country may have moved so much that a judge conservative enough to join Scalia couldn’t get confirmed. One can imagine a scenario where it could go the wrong way, but I think it’s unlikely. I think Scalia and Alito lost their best chance yesterday, and all they will do from here on in is lose more.

    1. I don’t see a broad circuit split developing. I think the first time a state law against marriage equality is struck down by a court of appeals and the state goes for cert, we will get a merits decision in favor of marriage equality. My over/under is July 1, 2015 for the Court’s recognition of the right to marry, regardless of gender.

      1. I think Kennedy, who when for a minute he thought he might have to decide it on the merits openly mused about DIGing the case, may well want to dodge for the remainder of his tenure. And I think getting four justices to grant cert without confidence in how Kennedy comes down will be tough.

        1. I don’t buy it. He could have written Windsor as a federalism case if he wanted to, and instead he wrote it as a mushy combination of substantive due process and equal protection. He is waving a red flag at marriage-equality proponents, saying “Bring me the case!”

          Now, how that translated into the extremely strange lineup in Hollingsworth, I can’t begin to explain. But the way he wrote Windsor give me confidence that he’s all the way there.

        2. It seems to me that he did write it as a federalism case, in that he heavily emphasized the importance of deference to state decisions on marriage, and wrote about violation of due process (and equal protection, in basically the same breath) in the sense of the federal government depriving couples who are legally married under state law of the benefits (and obligations) that marriage usually confers, and does confer upon different-sex married couples.

          So I do think there’s room in his decision for a ruling that the same logic doesn’t necessarily apply to states, and doesn’t necesarily require striking down Section 2 of DOMA. Which was the entire point of the first part of Roberts’s dissent — which, to that extent, wasn’t really a dissent, but an attempt to argue prospectively that the scope of the decision should be limited to its specific context.

        3. Yeah, any explanation of what happened here has to also explain why Holllingsworth (1) made him so uncomfortable that he wanted to dismiss as improvidently granted; and (2) produced standing opinions that shattered the ideological blocs, as well as dealing with what he wrote in Windsor. I do not see a clear indication that he’s all the way there. I see nothing that indicates to me that he’s ready today to tell Texas and Mississippi that they have to recognize same sex marriages. And if he were, he would have yesterday. Do you doubt that there were four other votes for that outcome?

        4. Donna: I don’t agree that he pitched it at federalism. On page 18, the opinion says “Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.” If he’d wanted to leave the due-process and equal-protection issues (with their screamingly obvious implications for universal marriage equality) alone, he would not have written that line, and would instead have written something much closer to the Federalism Scholars’ amicus brief. The holding of the case clearly does not establish a freestanding constitutional right to same-sex marriage. But I think Kennedy’s decision about how to draft Windsor provides all the information we need about where he’s at. He’s bought into the arguments of the marriage-equality camp. There’s no reason to believe that he’s going to go backwards on this. The time to get a case with no vehicle problems before SCOTUS is now.

          Thomas: I think the DIG float at oral argument is outdated information. That was his thinking at the time. Yesterday, he voted and wrote in a direction that would have forced the Court to reach the merits, if it had carried one more Justice. Why would he do that if he wanted to duck it?

          Now, that doesn’t explain why Ginsburg, Breyer, and Kagan went along with Roberts’s standing opinion. Frankly, I have no idea. I eagerly await the opening of Justice Ginsburg’s papers in 2044 or whenever, so we can find out what on earth happened there. But I don’t think your account of a Kennedy desperate to avoid the merits fits with the action he took yesterday.

  7. Yeah, Val and I wibbled when we heard the news. It’s a huge damn step, and not just for the US; like it or not, the place is a colonial power right now, and the sooner this goes down, the better.

    Now please, PLEASE can we turn this momentum towards ENDA? And also immigration reform for same-sex binational couples?

    That would be nice.

    1. We’re all still waiting to see exactly how it pans out, but in theory Windsor should be all that’s necessary for bi-national same-sex couples who’ve obtained a legal marriage. With a few exceptions, federal immigration law recognizes a marriage which was valid where/when it was entered into. So if a bi-national couple marries in New York State or the Netherlands, for instance, the federal government should theoretically recognize that marriage now for purposes of filing an I-130 or other marriage-related petitions/applications.

      Now, as a practical matter, those cases are still on hold as of today. But I can’t imagine it’ll be too long until they start processing.

      1. Wasn’t that part of Rachel Maddow’s coverage, how an intern (I think in New York?) got the decision hot off the printer and then ran over 700 yards to a courtroom where one half of a bi-national couple was about to be deported?

        1. Well, immigration law is complicated, and the media gets it wrong about nine times out of ten. My understanding is that once DOMA was overturned, the IJ had grounds to continue the case, since it looked like the spouse would be able to get an I-130 granted. 🙂 The news reports make it sound like he had an I-130 petition denied because of DOMA in 2011, and that he has an appeal pending on it. Since he might have relief from removal now, the IJ decided there was good cause for a continuance of the removal proceedings. The Immigration Judge can’t adjudicate the I-130 herself, though (only the adjustment of status or “green card” application, for which you need an approved visa petition to be eligible), thus the continuance rather than just going ahead with the application.

          The man wasn’t “about to be deported” – the Immigration Judge was just about to enter a removal order. That doesn’t mean that DHS was going to stick him on a plane or anything. At the very least he would’ve had 30 days to file an appeal. And if the removal order HAD been entered, now that DOMA’s gone he probably had a fair shot of getting proceedings reopened based on the pending I-130.

          Still, all that aside (probably more about immigration law than you ever cared to know, and that’s just a splinter off the tip of the iceberg), the Brooks have a great story. 🙂 I bet the IJ was super excited, too. I know people in my (federal) office were bawling, we were so happy.

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