British House of Lords Gives Final Approval to Gay Marriage

While the U. S. Supreme Court chose to dodge facing the fact that bans on gay marriage are unconstitutional on an equal protection basis in Hollingsworth v. Perry, the British House of Lords - not exactly an ultra-liberal body - has given its final stamp of approval to gay marriage in the United Kingdom.  Frankly, it is embarrassing to watch as other Supreme Courts around the developed world find that gay marriage bans are discriminatory and unconstitutional while America's Supreme Court lacked the balls and morality to call out religious based discrimination for what it is and rule broadly.  The only positive light is that the language in the Windsor opinion may likely set the stage for ending anti-gay amendments nationwide in future cases.  Here are highlights from Stonewall on events in the UK:

Lesbian, gay and bisexual couples in England and Wales will be able to marry next spring, after the House of Lords gave Third Reading to the Marriage (Same Sex Couples) Bill. Subject to consideration of amendments in the House of Commons – a technicality, as the Bill made it through the Lords without any material amendments – the Bill will now receive Royal Assent and become law.

Stonewall Chief Executive Ben Summerskill said: ‘It’s impossible to express how much joy this historic step will bring to tens of thousands of gay people and their families and friends. The Bill’s progress through Parliament shows that, at last, the majority of politicians in both Houses understand the public’s support for equality – though it’s also reminded us that gay people still have powerful opponents.

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Supreme Court Strikes Down DOMA and Dodges Larger Gay Marriage Issue.

Today the United States Supreme Court ruled that Section 3 of the federal Defense of Marriage Act ("DOMA") is unconstitutional.  The Court also ruled that  Proposition 8 proponents lacked standing to appeal the U.S. District Court ruling striking down Proposition 8 and ordered the Ninth Circuit to dismiss the appeal, thereby reinstating the District Court ruling.  While I am not surprised in many ways, I'd be lying if I did not admit that I had secretly hoped for a broad pro-gay marriage in Perry.

Back when the Supreme Court took the cases of Hollingsworth v. Perry and United States v. Windsor, I suspected that the Court would chicken out and avoid the larger issue of gay marriage on a national scale and I speculated that the issue of standing would be used to dodge making a larger decision.  I even referenced the case of  Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) and Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), that were both cited in today's ruling in Perry that the Proposition 8 proponents lacked standing to appeal the U.S. District Court ruling striking down Proposition 8.   Here are excerpts from the ruling in Perry:

Article III [of the United States Constitution which established the federal court system] demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U. S. ___, ___. Standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64. The parties do not contest that respondents had standing to initiate this case against the California officials responsible for enforcing Proposition 8. But once the District Court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in the District Court, but they had not been ordered to do or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this Court has repeatedly held, such a “generalized grievance”—no matter how sincere—is insufficient to confer standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574.

A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” 

Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’” Diamond, 476 U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their]advocacy,” post, at 4 (KENNEDY, J., dissenting), that is not a “particularized” interest sufficient to create a case or controversy under Article III.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

As noted, the ruling striking down Sec. 3 of DOMA is also not surprising and is in some ways reminiscent of the ruling in Romer v. Evans which was also authored by Justice Kennedy.   Here are some core excerpts from the ruling in Windsor that found that DOMA deprived same sex married couples equal rights and protections under the law and that DOMA was motivated by anti-gay animus:

The design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges.

DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may  vary, subject to constitutional guarantees, from one State to the next. 

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.  Depart­ment of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motivated by an improper animus or purpose, “[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles.

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.  The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. 

A future post will sort out where these rulings leave us - especially those of us living in anti-gay states like Virginia. We will also look at the shrieks and wailing coming from the Christofascists.

 

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DOMA and Proposition 8 Rulings To Come Tomorrow

Having tuned into SCOTUS Blog, official word is that the rulings in Hollingsworth v. Perry and United States v. Windsor will be handed down tomorrow at 10:00 AM.  The prediction is that Chief Justice Roberts will deliver the ruling in Perry and Justice Kennedy will deliver the ruling in Windsor.  The wait for these rulings has been like a slow torture.  I sincerely hope the Court embraces modernity and equality rather than religious based bigotry.

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Waiting on Proposition 8 and DOMA Decisions

As many of us wait and wonder what will happen with the Supreme Court rulings, a great "plain English" overview of both Hollingsworth v. Perry and United States v. Windsor can be found here at SCOTUS Blog.  Personally, I am hopefully optimistic on the DOMA case.  On Proposition 8, I suspect that the Court's ruling will do nothing for members of the LGBT community in anti-gay states like Virginia.  We will likely remain second class citizens subject to state sponsored discrimination in a modern day version of segregation.  Here are brief excerpts on the two cases:

To the extent that you can make any predictions based on the oral argument, Windsor and her supporters may have reason to be cautiously optimistic.  The Court’s four more liberal Justices – Justices Ginsburg, Breyer, Sotomayor, and Kagan – seemed to be squarely on her side.  They may also have a vote from Justice Anthony Kennedy (who is often regarded as the swing vote on the Court) to strike down the law as well, although perhaps for a different reason.  Generally a staunch supporter of states’ rights, he seemed troubled by the idea that with DOMA Congress was trying to regulate marriage – which, he seemed to indicate, has traditionally been the role of the states.

But there’s a chance that the Court might not even get to the question whether DOMA is constitutional at all.  The case may have a fatal procedural flaw.  In a normal case that comes to the Court, the party that lost in the lower court is the one asking the Court to review the case.  But this is not, as you may have figured out by now, the average case.  Windsor and the United States won in the lower court, by getting a ruling that DOMA is unconstitutional.  And to make things even more complicated, usually it is the federal government that appears in court to defend the constitutionality of federal laws, but the government isn’t doing that here; House Republicans are doing it instead.

The fate of California’s Proposition 8, before the Court in Hollingsworth v. Perry, seems murkier than DOMA’s.  Proposition 8 was a response to a 2008 decision by the California Supreme Court ordering the state to begin issuing marriage licenses to same-sex couples.  Before the end of that year, California voters had passed Proposition 8’s ban on same-sex marriage.

The sponsors of Proposition 8 defended it in court, because the State of California refused.  The two couples prevailed in the federal trial court and then in the U.S. Court of Appeals for the Ninth Circuit, with the latter holding that Proposition 8 was unconstitutional because it took the previously granted right to marry away from gays and lesbians just because people didn’t like them.

There is a threshold question of “standing” that piqued the interest of several Justices – the Chief Justice and the Court’s four more liberal Justices in particular – who seemed inclined at oral argument to hold that the sponsors of Proposition 8 lacked the legal right to defend it in court. 

[T]he Court could simply dismiss the case on the ground that it had made a mistake in taking it on. The one thing that didn’t seem likely after the oral argument was what some supporters of same-sex marriage had long feared:  a decision holding that the state’s ban on same-sex marriage is constitutional.  

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Where Will Gay Rights Be After SCOTUS Rules?

Many are waiting with apprehension this morning since today or Monday will likely be when the U. S. Supreme Court hands down its rulings in Hollingsworth v. Perry, the Proposition 8 case, and United States v. Windsor, the DOMA case.   The speculation is that DOMA will be ruled unconstitutional and for gays in states where gay marriage is legal, a host of new legal rights will become available.  The Proposition 8 case is another matter and few seem to anticipate a broad ruling that would strike down bans on gay marriage nationwide.  So where does that leave those of us living in virulently anti-gay states like Virginia?  Mostly still totally screwed and second, third or even fourth class citizens.  But, if DOMA does fall, there will be some possible rights flowing to us if we marry in states where gay marriage is legal.  As noted in prior posts, we will face very complicated and inconsistent legal rights and challenges.  A narrow ruling on Prop 8 and a striking down of DOMA will no doubt unleash a further host of law suits.  Here are highlights of some further analysis from Towleroad.

Normally, marriage law is pretty simple: For 99 percent of heterosexual couples, the hardest thing about marrying in one state and moving to another state is packing the fine china. Sure, there are some states (New York) that allow first cousins to marry and some states (West Virginia) that do not, but for the most part, when a man marries a woman, they are married in all legal respects whether they live on the 65th floor in an Upper West Side hi-rise or in a ranch house in Oklahoma. 

The end of DOMA doubles down the complexity faced by legally married same-sex couples. What is the governing law for marriages for federal law: the place of celebration or the place of domicile? What if the choice of law is different from different aspects of federal law? What happens when a legally married couple moves to a state that feels that their marriage violates public policy? What of gay couples that do not have the option of marrying and are in registered domestic partnerships or civil unions that provide all the benefits of marriage?

[I]n a world without DOMA, which makes the choice of law question moot, what will the federal government do? The general rule is the marriages are recognized in the state of celebration, or the state the couple signed the marriage license, even if they reside somewhere else.

Some people argue that all states should recognize same-sex marriages performed in other states because the Constitution, specifically the Full Faith and Credit Clause, requires the states to recognize the "the public acts, records, and judicial proceedings, of every other state." But a marriage license is not a judicial proceeding and although it could be considered a "record," courts have generally not required other states to give binding recognition under the Full Faith and Credit Clause to similar documents, such as a pharmacist's, dentist's, or a lawyer's license.

That means that the Constitution isn't going to be much help coming up with a clear choice of law rule in a post-DOMA world. We could rely on the common law default rule that marriages are recognized by the federal government based on the laws of the state of celebration. But the common law rule has exceptions -- big ones -- that make life impossibly difficult for gay couples to move from one state to another when those state gay marriage laws differ. For some moves -- say, from New York to New Mexico -- there is no problem because whereas New Mexico may not be a freedom to marry state, it will recognize out of state gay marriages. But for other moves -- say, from Massachusetts to Utah -- the public policy exception to out-of-state marriage recognition takes Utah off the map as a viable destination for gay couples.

This raises questions of social justice and fairness, but also constitutional rights. You have a right to move, and states that ban gay marriage and refuse to recognize out-of-state marriages put an effective burden on gay would-be new residents. In Saenz v. Roe (1999), for example, the Supreme Court held, in part, that those who leave one state and become permanent residents of another state have a right to be treated equally to native born citizens of that state. That holding is not cabined by a mover's sexual orientation: a gay person isn't entitled to be treated like any other gay person in his new state, but rather he is entitled to treated equally to any other person in his new state. That could apply to marriage discrimination, as well.

Of course, Congress could step in and solve the complexity problem. The Respect for Marriage Act (ROMA), for example, would codify the following rule:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

Short of this kind of Congressional action -- which, by the way, is unlikely, given the makeup of the House and the long decades that have passed without Congress taking any action to mop up the messy patchwork of choice of law rules when it comes to marriage -- the post-DOMA world will be a tangled web of common law rules that will be subject to future litigation. There are no simple answers to the next questions. The IRS may interpret the tax and bankruptcy codes to define marriage based on state of celebration, but that rule can be challenged. Immigration authorities may interpret the rule differently, based on contradictory case law coming out of the spousal visa context, though, as attorney Lavi Soloway has argued, the celebration rule is the stronger argument.

Yes, it will be very complicated for many of us.   All so that the Christofascists can feel morally superior and inflict their anti-gay animus on as many of us as possible.  So much for religious freedom and the "liberty" that America pretends to offer to all.

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Rachel Maddow: The GOP’s ‘Awkward’ Positions On "The Gay" WillSoon Come Crashing Down

As noted many times on this blog, some 20 to 25 years ago the Republican establishment decided that mobilizing the Christofascists would help the GOP win elections.  At the time, the powers that be in the GOP never stopped to ask the question of how, once these people have been allowed into the party grass roots, would the so-called establishment (i) control them and/or (ii) eject them from the party apparatus if their batshit craziness became a problem.    Now, the day of retribution is about to arrive and the GOP establishment seemingly has no plan on how to eject the most ignorant, nasty and hate-filled elements of today's GOO, the "godly Christian" crowd.  Rachel Maddow recently looked at the coming Armageddon for the GOP in terms of its virulently anti-gay platforms passed, of course, by the ugliest hate group elements of the GOP base.  Here are highlights from The New Civil Rights Movement:

Rachel Maddow last night explored the “awkward” stance almost every Republican politician has taken on LGBT civil rights, which, she says, has “bewildered” the rest of America. Starting with Texas governor Rick Perry winning the war on the war on Christmas by signing a bill making it “not illegal” to say “Merry Christmas” in schools (a bill, by the way, that is likely unconstitutional — see our discussion here) to Ralph Reed‘s Faith & Freedom Coalition‘s “Road to Majority” conference this weekend, which, Maddow noted, mockingly, lobbied Congress this week “on the evils of gay marriage and the darkness that will be unleashed on the land if the court rules in a pro-gay way.”

But Republicans can no longer feel safe talking about gay people the way they have in the past, says Maddow.  “Republican politicians are about to lose the luxury of only talking about gay rights in front of anti-gay audiences like the Faith & Freedom Coalition, or avoiding the question altogether because they don’t want to be quoted about it because their Republican position on the subject is so unpopular,” the MSNBC anchor reveals.

“Because in Republican world — it is a very different world than most of us live in when it comes to talking about ‘The Gay,’” Maddow rightly notes.  Nobody who has any real prospects of being a national leader in Republican politics in the next few years has anything other than a 100 percent anti-gay policy position on something like non-discrimination,” Maddow added. “That is apparently still a requirement if you are a Republican and you want to hold higher national office.”.

But all that is about to change, and the ability to be anti-gay and continue to hold elected office will “come crashing down on the Republican Party,” Maddow predicts, when the Supreme Courts hands down its rulings on two historic marriage cases, Prop 8 and DOMA,  .  .  .  .  .

“After these rulings come out, this is going to be the biggest news in the country,” Maddow concluded. “They’re going to have to talk to the rest of the country, too, increasingly not only against them on these issues but bewildered by them and their positions on these issues.”

Like, Ken Blackwell who happens to be African-American and whose troubled past didn’t preclude him from being paid big bucks by the hate group Family Research Council, telling a Congressman if the Supreme Court rules in favor of the LGBT community there will be mass civil rights disobedience protests “reminiscent of the Civil Rights Movement,” nationwide.

One of the biggest problems for the GOP in my view as a former GOP activist is that the Party increasingly operates and exists in a bubble.  GOP members listen to Fox News and ignore real world news: they listen to the lies and false propaganda of anti-hate group; and they refuse to get out and converse with normal sentient individuals outside the Tea Party, Republican Women's Clubs and spittle flecked Christofascist circles.   The world and the nation's demographics are changing even if many in the GOP cling to the fantasy that we are still in the 1950's or early 1960's where the Clever family (Leave It to Beaver) and Anderson family (Father Knows Best) were supposedly the norm. 

I hope the Supreme Court Rulings whatever they may be turn out to be unsettling, cataclysmic events for both the GOP and the Christofascists.

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Even if DOMA Falls, Many Gay Couples Will Remain Second Class Citizens

With more and more people waiting for the Supreme Court's rulings in Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (the DOMA case), increasing analysis indicates that absent a nationwide ruling for gay marriage, a striking down of DOMA alone will leave many same sex couples screwed.  We will remain second class citizens unless we emigrate from our home states to states that recognize full gay marriage.  That, of course, is precisely the goal of hate groups like Family Research Council and the National Organization for Marriage which seek to keep discrimination and mistreatment of LGBT citizens alive and well as long as possible.  They don't give a damn about "protecting marriage."  No, it's all about keeping gays inferior under the law.  A piece in the New York Times reviews the limited impact that the striking down of DOMA will have for most of us at least unless and until federal regulations and in some cases legislation is rewritten.  Here are highlights:

A Supreme Court ruling this month that could overturn the ban on federal benefits for same-sex couples is presenting the Obama administration with a series of complicated and politically sensitive decisions: how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.

The decisions could affect Social Security checks, immigration laws and military benefits for same-sex couples, among other issues, with the outcomes based on whether the couples live in a state that allows them to marry. 

Gay rights advocates, aware that a Supreme Court ruling that overturns the 1996 Defense of Marriage Act would be the beginning of their push to have the federal government recognize same-sex marriage, are urging White House officials to plan to modify hundreds of mentions of marriage throughout federal statutes and regulations.

If the justices do strike it down, they will sweep aside a law that has for years prohibited gay couples from receiving a vast array of federal benefits that married couples take for granted. But whether gay couples actually get those benefits would depend on where they live — and how vigorously President Obama seeks to change the legal language that determines whether a couple is married in the eyes of the federal government. 

For Mr. Obama, who appears eager to have his legacy defined in part by the advancement of civil rights for gay Americans, his administration’s actions after the ruling may be as important as the ruling itself.

Activists, however, are warning gay couples not to expect that federal benefits would arrive immediately, because government agencies vary widely in how they determine whether a couple is legally married. 

Some federal agencies, like the I.R.S. and the Social Security Administration, make that determination by looking to the state where a couple lives. Even with the 1996 law overturned, those agencies would deny benefits to gay couples who live in one of the 38 states that do not allow same-sex marriage.

Other agencies, like the Defense Department, already base their decision on the location of a couple’s wedding, regardless of where the couple lives now. The same-sex spouse of a service member would get health care benefits no matter where the couple lives, as long as the two married in one of the 12 states where same-sex marriage is legal. 

“Without sweeping decisions from the court, we’ll continue to have a patchwork across the country that denies all families equal protection,” Mr. Sainz said. “We are going to fight for full equality in all 50 states, including marriage.” 

It's not encouraging.  Those of us in Virginia - one of the most anti-gay states in America - will still be largely screwed and not equal citizens.  And should the GOP statewide ticket of gay haters be elected in November, an already bad situation will become far worse.  As I've said before, if family circumstances were different, I'd leave Virginia in a hear beat.

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