SCOTUS to make decsion about DOMA

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http://www.guardian.co.uk/world/2012/no ... riage-doma

Supreme Court nears gay marriage decision over Doma-related cases

Justices will decide next week whether to consider the constitutionality of same-sex marriage

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Karen McVeigh
guardian.co.uk, Friday 23 November 2012 12.32 EST
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Justices of the US supreme court
The justices of the US Supreme Court in October 2010. Front row (L-R): Clarence Thomas, Antonin Scalia, chief justice John Roberts, Anthony Kennedy and Ruth Bader Ginsburg. Back row (L-R): Sonia Sotomayor, Stephen Breyer, Samuel Alito and Elena Kagan. Photograph: Tim Sloan/AFP/Getty Images

The nine judges of the US Supreme Court will decide next week whether to consider the constitutionality of same-sex marriage – a keenly awaited choice that will have far-reaching implications for thousands of legally married gay couples across the United States.

Activists are hoping that shifting public opinion on the issue, most recently demonstrated by election-day victories in all four states where same sex-marriage measures were on the ballot, will convince the judges to take on the issue.

Up for decision is a set of cases relating to the Defense of Marriage Act (Doma), a 1996 law which states that every time any federal law refers to marriage, it means only that between a man and a woman. Same-sex couples who are legally married in one of nine states or Washington DC are thus denied the benefits or opportunities afforded by marriage to opposite-sex couples.

Five federal courts have ruled that Doma is unconstitutional. The Supreme Court could decide to take on one or more of these cases. The judges will also decide whether to consider an appeal from supporters of California's Proposition 8, a voter-approved amendment to the state constitution which seeks to ban same-sex marriage. Another petition before the justices relates to the state of Arizona, which is seeking to revive a state law that is similar to Doma.

Four Supreme Court justices must agree a case in order for the court to take it. They can take up all of the measures before them, none of them or some. The justices are expected to announce a decision on 30 November.

Advocates of marriage equality are hoping that the tide of public opinion that has been demonstrated by polls over this year will persuade the justices to strike down Doma. Last year, the Obama administration decided not to defend the law in court, believing it to be unconstitutional.

Brian Moulton, legal director of Human Rights Watch, a marriage-equality group, said that the election-night victories had underlined the need for a Supreme Court decision on Doma, because of the growing number of couples who will be affected by a federal law that discriminates against them.

Moulton said: "The number of couples who are married at the state level who will not be recognised because of Doma will get bigger and bigger, so the scope of the problem will grow. That might influence the question of whether to resolve the issue."

He said he was optimistic that the judges would decided to take up the issue: "The justices are people as well and they read the newspapers. That gives them a sense of where the country is going on these issues."

Two of the Doma cases, both brought against the federal office of personnel management, relate to the denial of healthcare benefits to same-sex spouses. Gill v United States Office of Personnel Management is from the First Circuit in Boston and Golinski v OPM is from the Ninth Circuit. In each of these cases, the Court of Appeal held that Doma violated equal protection rights.

Gill was considered with another Doma case, Massachusetts v United States Department of Health and Human Services, in which the First Circuit Court of Appeals ruled that Doma's denial of federal recognition to lawfully-married same-sex couples violated the US constitution's guarantee of equal protection of the laws.

The Supreme Court is widely expected to take one of the cases, but predicting an outcome is difficult. If, for instance, the Supreme Court declines to take the Gill and Massachusetts cases, the First Circuit decision would stand. However, it would apply only to the states in that Circuit – Maine, Massachusetts, New Hampshire and Rhode Island.

Douglas Nejaime, an associate professor at Loyola Law School in Los Angeles, said Doma was important but pointed out that it does not have wider implications for states where same-sex marriage is illegal.

Nejaime said: "The reason that the popular vote on election night figures into this is it shows the court that more states are recognising same-sex marriage. If they overturn Doma it just means that those couples will be recognised federally. It wouldn't have any impact on states where they don't recognise same-sex marriage."

More controversial, he said, was the question of whether the justices decide to take on Proposition 8. It is exclusive to California, so it is less likely the justices will take it up. Both a federal trial court and the Ninth Circuit Court of Appeals have ruled Proposition 8 unconstitutional. However, the Ninth Circuit found that it was the unique circumstances of California that made adopting Proposition 8 a violation of the US constitution.

If, as many predict, the justices decline to consider an appeal from supporters of Proposition 8, same-sex couples would again be permitted to marry in California, as was the case for a few months in 2008 before the passage of the proposition. Because of the size of the state, such a decision would at a stroke dramatically boost the number of gay couples in the nation who would be able to legally marry.

Nejaime said that the court had several options regarding Proposition 8, including upholding it along the narrow focus of the Ninth Circuit ruling. "If they went behind the Ninth Circuit, we would only have same-sex marriage in states that already have domestic partnerships or civil union. The broadest ruling would be to say all of the states where same-sex marriage is not allowed is unconstitutional – but I don't think the court is ready to go there."

If the justices decide not to take the case, California could begin issuing marriage licences within days.

Wendy Goffe, a lawyer in Seattle who has written on the issue, also believes that the justices will decline the Proposition 8 case.

Goffe said: "I'm not convinced they would take it because the Supreme Court [is] very much in support of state rights."

Citing the decision by the Supreme Court in January to uphold controversial parts of an immigration law in Arizona, she said: "If you look at the Arizona decision – where they took that and upheld the case and that is a terrible law, but they said it's not our place to mix in with the state. The only way they might pick up Prop 8 is if they make a decision to take all the cases before it. But that would lead to a big mess. It could take decades."

So, thoughts on how they'll decide?

[Broomstick]

I'm not certain how they will decide, but it seems to me that the full faith and credit clause (article IV, section 1) of the constitution means that a legal marriage in one state is a legal marriage in all states, and that once same-sex marriage is valid in even one state it should be recognized as legitimate in all. But I'm not a lawyer.

[Ralin]

I'm not certain how they will decide, but it seems to me that the full faith and credit clause (article IV, section 1) of the constitution means that a legal marriage in one state is a legal marriage in all states, and that once same-sex marriage is valid in even one state it should be recognized as legitimate in all. But I'm not a lawyer.

Which is why I think it should be decided federally. I don't have a problem with gay marriage, but it doesn't seem right that one state should get to decide something like that for the other forty-nine.

[Crossroads Inc.]

I actually agree.

Last time something was "Forced" onto America (Roe v Wade) We still to this day have a strong right wing backlash. And while The Right will never get over beign against gay marriage, I would 'feel' better to know that we Won over them one state at a time, changing the minds of the population, then in one grand sweeping court choice.

[General Zod]

So how about that emancipation proclomation?

[Crossroads Inc.]

AH.. I should have seen that coming.

I guess I would say that the courts are there for when "The People" fail or cannot be changed.
The past 10 to 12 years has seen the Right wage war against gay marriage and ban it in state after state. Within the last 5 or 6 years we are slowly seeing the tide turn against them as states are starting to pass it, first in the courts and then by voting on it directly.

I would say in another 5 to 10 years or so, we will say the states divided with all Left wing states endorsing gay marriage, and all Right wing states banning it. At that point I would imagine the courts would have to step in to make everyone fall under the same rules and make it the law of the land.

[Simon_Jester]

The Emancipation Proclamation only affected states that had already seceded and rebelled. It wasn't just a legal decision, it was an act taken in the context of civil war: "All right, you seceded because you're afraid the majority government will abolish slavery? Well, by withdrawing from the government you've guaranteed it. Have fun!"

Roe v. Wade was a legal decision, and I think it was the right one, but let's not kid ourselves. Crossroads is right; it had consequences. The vast majority of states still had laws on the books against abortion, a large fraction of the nation still thought it was a great evil, and another large fraction was undecided. Forcing the issue created a powerful, organized reaction against Roe v. Wade, and against abortion and women's rights in general.

Making that the model for future civil rights issues is going to have costs, costs that we shouldn't laugh off.

[Highlord Laan]

I'm all for the Supreme Court taking DOMA and laws like it out in a single swoop. They're all blatantly unconstitutional, end of line. Any cry of "states rights!" is little more than shrieking bullshit that was settled in 1865.

[Aaron MkII]

I'm all for the Supreme Court taking DOMA and laws like it out in a single swoop. They're all blatantly unconstitutional, end of line. Any cry of "states rights!" is little more than shrieking bullshit that was settled in 1865.

This. Force equality onto America, or the bullshit will continue. You'll have a bunch of backwards states that will never "legalize" it. As if we should leave fundamental rights to the the fucking mob.

[SirNitram]

If only I beleived the SCOTUS would rule impartially based on the constituion.

[Simon_Jester]

This is a question about what our fundamental rights are in the first place. I may think I know the answer, but that doesn't mean I should automatically want it enforced when the great majority of the nation is still dead set against me.

You never know. One of these days the left might be wrong about whether or not something is a fundamental right. So I think it might be wise to wait for at least a large fraction of the country to come to a consensus before forcing a solution on the "fucking mob." Otherwise the mob starts punching back, hard.

With civil rights, the transition worked because by the 1950s much of the country was sympathetic to civil rights for women and African-Americans. There was struggle and pushback, but it wasn't nearly so organized and ferocious.

With abortion rights the transition did not work because it came when much of the country still objected. Pro-choice advocates have been fighting an uphill battle ever since, and constantly having to worry about the instant canned disaster that would come about if the Court ever reversed Roe v. Wade.

Which kind of situation do we want gay marriage to create?

[General Zod]

And if you take no action at all you risk getting an angry mob from the people looking for help. So which mob would you prefer to deal with?

[Sea Skimmer]

I'm not certain how they will decide, but it seems to me that the full faith and credit clause (article IV, section 1) of the constitution means that a legal marriage in one state is a legal marriage in all states, and that once same-sex marriage is valid in even one state it should be recognized as legitimate in all. But I'm not a lawyer.

It should, but the court is very reluctant to make such a ruling because by implication it would also affect several other touchy issues such as, it would force all states to recognize gun permits from all other states. That would mean anyone anywhere could get a concealed carry thanks to Florida. This could also apply to a vast range of other permits and licenses people might not be very happy about.

[Aaron MkII]

This is a question about what our fundamental rights are in the first place. I may think I know the answer, but that doesn't mean I should automatically want it enforced when the great majority of the nation is still dead set against me.

You never know. One of these days the left might be wrong about whether or not something is a fundamental right. So I think it might be wise to wait for at least a large fraction of the country to come to a consensus before forcing a solution on the "fucking mob." Otherwise the mob starts punching back, hard.

With civil rights, the transition worked because by the 1950s much of the country was sympathetic to civil rights for women and African-Americans. There was struggle and pushback, but it wasn't nearly so organized and ferocious.

With abortion rights the transition did not work because it came when much of the country still objected. Pro-choice advocates have been fighting an uphill battle ever since, and constantly having to worry about the instant canned disaster that would come about if the Court ever reversed Roe v. Wade.

Which kind of situation do we want gay marriage to create?

Hmm, I see where your going with this. Though I don't think abortion rights and equality for gays are all that comparable. What we're talking about for LGBT's are essentially tax benefits, visitation rights and all the usual married stuff.

[Omega18]

Since there appears to be allot of confusion here, there is essentially no way the Supreme Court is going to overturn DOMA entirely. The court challenges in question are deliberately more narrow ones which only address the issue of federal recognition of gay marriages legal in individual states, and don't get into the full faith and credit issue which is related to a separate clause of DOMA. Why the Supreme Court could theoretically decide to rule on the constitutionality of DOMA in general, in practice there is no way this happens. (Even if the Supreme Court did decide its time to make gay marriage legal everywhere, they would do it with the Proposition 8 case which would be the neater way to manage it anyways.)

I do think its overwhelmingly probable at this point that the Supreme Court is gong to rule DOMA's portions on the federal recognition of gay marriage are unconstitutional. (Impacting things like immigration, taxes, and social security.) It simply is infringing on too many states and increasingly people at this point, and its a ruling the Supreme Court can make in favor of gay rights without going as far as impacting unwilling states as other rulings potentially could. (The ruling could even be made from a fairly conservative judicial perspective with states rights as the justification.)

[Simon_Jester]

I think a court ruling that says "the states handle marriage licenses; if a state recognizes you as married the federal government has to do so too" would be just fine and a good thing. Mostly because no local government can then protest that they're being "forced" to do anything; it's only the federal government's policy that's affected.

What I think would be very premature (good thing it's not on the table!) would be a federal court attempt to require all states to offer marriage licenses to gay couples. We are not yet at a place as a nation where that could be done without causing a huge amount of trouble and pumping a lot of strength into the organized anti-gay movement.

Forcing the states to recognize each other's gay marriages via the full faith and credit clause strikes me as constitutionally sound, but it has a lot of consequences, like the one Skimmer mentioned about gun law and gun permits.

[General Zod]

Forcing the states to recognize each other's gay marriages via the full faith and credit clause strikes me as constitutionally sound, but it has a lot of consequences, like the one Skimmer mentioned about gun law and gun permits.

We already do it with regular marriage; get married anywhere in the US and your marriage is recognized everywhere in the US. I don't necessarily see a clear cut path from things like gay marriage to carry/conceal permits.

[Ahriman238]

Here's something that bothers me. Once you get over the visceral "Eww, gay cooties!" reaction I feel that the right should be the natural defenders of marriage equality. Regardless of whether they personally approve, aren't conservatives all about people having the right to do as they wish with a bare minimum of laws and taxes to keep a functioning society? And shouldn't the Republicans, who above all fear government overreaching be ready to spit tacks over the idea of government saying who can and cannot get married?

But of course, they have to appeal to red-necks and religious nuts and so vote against the things that would be consistent with their stated goals. The level of double-think necessary to be a Republican is truly astonishing.

[Aaron MkII]

Here's something that bothers me. Once you get over the visceral "Eww, gay cooties!" reaction I feel that the right should be the natural defenders of marriage equality. Regardless of whether they personally approve, aren't conservatives all about people having the right to do as they wish with a bare minimum of laws and taxes to keep a functioning society? And shouldn't the Republicans, who above all fear government overreaching be ready to spit tacks over the idea of government saying who can and cannot get married?

But of course, they have to appeal to red-necks and religious nuts and so vote against the things that would be consistent with their stated goals. The level of double-think necessary to be a Republican is truly astonishing.

Saying one thing, while doing another is as old as politics itself. And as long as the GOP makes the most noise, they distract from what is actually happening.

[General Zod]

Here's something that bothers me. Once you get over the visceral "Eww, gay cooties!" reaction I feel that the right should be the natural defenders of marriage equality. Regardless of whether they personally approve, aren't conservatives all about people having the right to do as they wish with a bare minimum of laws and taxes to keep a functioning society? And shouldn't the Republicans, who above all fear government overreaching be ready to spit tacks over the idea of government saying who can and cannot get married?

But of course, they have to appeal to red-necks and religious nuts and so vote against the things that would be consistent with their stated goals. The level of double-think necessary to be a Republican is truly astonishing.

That's what make Republicans such massive hypocrites. They only want a small government for things that they like.

[The Duchess of Zeon]

Broomstick is not quite right, the accepted definition of the constitutional full faith and credit clause is that you have to accept what another state does, not do it yourself. I.E., every state in the union would have to accept a gay marriage--from a state where gay marriage is legal, and that marriage was legally performed there. So for example the law in MA which was repealed a while ago banning out of state couples from marrying if the marriage wasn't according to the laws in their home state, would mean (if another gay marriage state had it), that, for instance, your state could refuse to recognize a gay marriage from New York, but would be required to recognize one from Maine (just as a hypothetical).

This status could then continue to exist indefinitely in a legal sense. States where out of state couples can marry would then become permanent marriage destinations for gays living in states with constitutional amendments banning gay marriage.

And yes it would also mean you could get your Florida concealed carry they issue to non-state residents and use it to pack a pistol legally in New York, because the laws of Florida would make it a legally acquired permit even though you weren't a resident, so New York would have to accept it. I wonder if we're going to see this explicitly mentioned as part of a compromise in SCOTUS when it makes the ruling, in fact.

[Simon_Jester]

The problem with this is that the implications are very far-reaching. There are fifty states; some of them permit strange things.

Nevada issues licenses to brothels- in Nevada. Surely they couldn't issue a license to open a brothel in another state, though; it's outside their jurisdiction and the other state doesn't have legalized prostitution anyway.

So there would have to be some kind of test put in place about what sorts of licenses can be issued in one state and binding on all other states, and what sorts cannot. It could get pretty tangled.

[Ziggy Stardust]

With abortion rights the transition did not work because it came when much of the country still objected. Pro-choice advocates have been fighting an uphill battle ever since, and constantly having to worry about the instant canned disaster that would come about if the Court ever reversed Roe v. Wade.

The problem with this argument is that you can't prove that not having passed Roe v. Wade would have made any appreciable difference. It's all well and good to grumble about this supposed "backlash", but you don't have any evidence that the current cultural and legal climate with regards to abortion would be better than it is now (i.e. more accepting). Unless you can prove that, you don't have an argument, because even the "backlash" is preferable to the alternative.

[Simon_Jester]

We already do it with regular marriage; get married anywhere in the US and your marriage is recognized everywhere in the US. I don't necessarily see a clear cut path from things like gay marriage to carry/conceal permits.

I don't know if there's a court case requiring a state to recognize other states' marriage licenses if it doesn't want to, though.

It's not guaranteed, but if the Court does say that the full faith and credit clause requires one state to recognize a whole class of licenses from another state, licenses that aren't even available under their own laws...

At the very least that's going to be used as a precedent by some challenges. And I don't think that would be wrong of the challengers. A good Supreme Court ruling should have broad consequences, because they're supposed to decide constitutional law, not policy questions.

If we're challenging nonrecognition of gay marriage by certain states, we're not doing it on grounds of "gay marriage is right and these states are wrong to ignore it." Or on grounds of "gay marriage is good for the country." Those aren't the Court's decisions to make. We're doing it on grounds of "it violates the full faith and credit clause for one state to ignore a license/permit issued by another state." And that should set a precedent for other cases.

[Broomstick]

We already do it with regular marriage; get married anywhere in the US and your marriage is recognized everywhere in the US. I don't necessarily see a clear cut path from things like gay marriage to carry/conceal permits.

I don't know if there's a court case requiring a state to recognize other states' marriage licenses if it doesn't want to, though.

1967's Loving v. Virginia

However, as noted in the OP's quote, some of these challenges are also under the "equal protection under the law" amendment. So there is more than one approach to this.

Now that I think about it, the full faith and credit clause requires the states to recognize each other's marriages, I think someone who is a literalist might argue it doesn't require the Federal government to recognize them, in which case the equal protection approach might be better in this instance.