Of course it’s pretty self evident that DOMA discriminates. Of course discrimination by itself isn’t wrong… its only wrong when based on ‘wrong’ criteria (I discriminate based on party affiliation all the time in the voting booth). I look forward to the case because I suspect that the government will have to show that the grounds by which discrimination is permissible. Presumably they will have to show some standing theory on how married gay couples are dissimilar enough to married hetero couples to justify the differing treatment. Moreover, I think they’ll have to explain how the differences they show are relevant to the rights in question.
Mary Bonauto, GLAD’s Civil Rights Project director, said the lawsuit is the first major challenge to the section of the law that denies same-sex couples access to more than 1,000 federal programs and legal protections in which marriage is a factor.
…
Laurence Tribe, a constitutional law professor at Harvard Law School, said the lawsuit is a “plausible challenge” to DOMA.
I’ve thought ever since it was passed that it violates the 14th amendment’s equal protection clause. Why has it taken 12 years to do this?
Conventional wisdom has been that the court wouldn’t be receptive given its current membership. And in fact, I think GLAD has been involved in discouraging others who previously wanted to mount this challenge. I wonder what’s changed? Certainly not the composition of the court. I trust GLAD to know their stuff, but enquirering minds want to know!
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p>Here’s the related bit from Bay Windows.
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p>Maybe the hesitation before was just that enough time hadn’t yet gone by since Goodridge to prove that SSM isn’t a danger to children, puppies and the height of the sky?
Bay Windows link.
… before that ‘the world didn’t end’ argument is powerful because its extremely resistant to refutation.
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p>It might have also been a ‘get ducks in a row’ issue. The guys at DI and Thomas Moore operated similarly for ID challenges,… although in their case ‘ducks in a row’ involved ‘seeding’ communities with their designed methods to enact ID education without running afoul (allegedly) of any establishment issues followed by waiting for a choice case to be pressed.
if the earlier challenges that got tamped down were to the part of DOMA having to do with one state recognizing marriages conducted on another states. Looks like the GLAD suit is not dealing with that part of DOMA, but focusing only on the federal rights/benefits side.
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p>If this makes it to the SCOTUS, who defends DOMA before the court? Wouldn’t that be the USAtty General? I wonder if GLAD is wagering that an Obama appointee would be put in th position of defending a law that Obama has said he thinks is wrong. But if Obama is a 1-termer, what are the odds the case would get that far that fast?
… the Solicitor General. I suspect that one of the ‘moves’ that the government might make in the case is to put DOMA up for revision and use that to get the court to wait (punt). As far as odds? No idea. I suppose that it could be influenced by how quickly the defendants want to get it heard too, which could be quickly if they want to use the case as a basis for moving forward with DOMA revision or repeal.
Maybe be the time it gets to SCOTUS, the membership will be different…
As I said in another thread, I could see Scalia quitting in Obama’s second term, but not in his first. Other than an unexpected health event, then, IMHO there’s not likely to be a change in the Court’s center of gravity for a while.
…it was timed so that if the Court’s make-up changes it will be favorable. Currently Stevens, Breyer, Kennedy, Ginsburg and Souter who all joined the majority in Lawrence v. Texas are still on the court. Not a bad bet that five justices that found discrimination against gays and lesbians to violate equal protection will do so again. And if one of them exits the court during the pendency of the challenge they will be replaced by Obama and not George Bush.
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p>Now actually seems like a very good time to do it to me.
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p>
Gill complaint (pdf) and GLAD’s dedicated page.
GLAD has a page where you can view video essays by each plaintiff or plaintiff couple explaining why they are participating in the lawsuit. Pretty cool.
Here is a statement from a press release sent out by his office:
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p>
with a bill to repeal DOMA, or is he going to kick back and let the courts undo the work of undoing the wrong inflicted on us by Congress? He was on the right side of the equation when DOMA was being debated, but he seems to be content on the sidelines now. I hope that will change. We need someone to introduce an LGBT civil rights omnibus bill, and I think Senator Kerry would be the perfect person to do it.
… it could be that the timing is so that the court case can be held up as a supporting reason for legislation. Certainly if the lower court rules that DOMA is a problem, it becomes easier politically to deal with DOMA. Not saying this is the plan, but it could be.
You live in Washington State, right? Would either Cantwell or Murray be willing/able to do this? Murray was in the Senate in 1996 – do you know how she voted?
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p>For better or worse some have settled into the notion that if it’s a constitutional question, better take the politics out and let the courts decide. Georgetown law professor Mark Tushnet argues against that approach in his book “Taking the Constitution Away From the Courts”. Kerry probably has less to worry about political backlash at home than some, but my question would be can he get the votes to pass it. If he already has reason to believe it can’t pass then he may decide not to take time trying right now.
Ha ha ha. Because of course the courts would never allow anything like politics to influence their decisions!
Oral arguments in the Prop 8 challenge are this Thursday. CA elects its supremes, and they can also be recalled. The haters have already threatened to recall anyone voting to sink prop 8. I can see that, depending on one’s personality, that knowledge could influence the decision making in either direction, to the extent it influences it at all. Let us hope the court is stacked with dig in the heels “by god i’ll do right despite you idiots” types, rather than the “gosh this is a nice gig” types.
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p>our side will be out in force thursday too, a press of humanity watching the proceedings on jumbotrons on the grounds of the courthouse building, willing the justices to kill prop 8 and leave 36,000 people married. it makes me uncomfortable for either side to do anything that could be though of as trying to influence the justices. but then, our side faces running another initiative campaign to reverse prop 8 should the court uphold it, so any massive sign of cohesion and purpose like the event thursday will help us in public opinion during the campaign. sigh. damned if you do, damned if you don’t.
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p>apparently the court already has the ruling sketched out by the time of oral arguments, so in some justices minds its already a done deal. that’s a scary thought. i really hate other people having the power to take decisions about my life out of my hands, as if i’m a child. now i have to wait 90 days on pins and needles to learn what they’ve decided for me. gag.
I didn’t realize that CA popularly elected their Supreme Court judges, but this is a perfect example of why judges should never be elected in my opinion. They’re job is to uphold the Constitution and laws, not the people’s will. As blasphemous as this might sound in a “democracy”, thwarting the will of the people is a dirty job, but somebody’s got to do it! Even for elected legislators I don’t like recalls because even with just two-year terms there needs to be a chance to take an entire record into account rather than just dump somebody on a whim out of vengence over one particular vote.
back in 1996.
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p>”I oppose this legislation because not only is it meant to divide Americans, but it is fundamentally unconstitutional, regardless of what your views are. DOMA is unconstitutional. There is no single Member of the U.S. Senate who believes that it is within the Senate’s power to strip away the word or spirit of a constitutional clause by simple statute.
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p>”DOMA would, de facto, add a section to our Constitution’s full faith and credit clause, article IV, section 1, to allow the States not to recognize the legal marriage in another State. That is in direct conflict with the very specific understandings interpreted by the Supreme Court of the clause itself.
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p>”The clause states–simple words–
Full faith and credit shall be given'--notmay be given,’shall be given'--in each State to the public Acts, Records and judicial Proceedings of every other State.’ It says: And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.<
p>”It doesn’t say no effect. It doesn’t say can nullify. It doesn’t say can obviate or avoid. It says it has to show how you merely procedurally prove that the act spoken of has taken place, and if it has taken place, then what is the full effect of that act in giving full faith and credit to that State.
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p>”I think any schoolchild could understand that allowing States to not accept the public act of another is the exact opposite of what the Founding Fathers laid forth in the clause itself. Let me repeat: Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
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p>”Now, if we intend to change it–and that is a different vote than having the constitutional process properly adhered to. But it seems to me that what Congress is doing is allowing a State to ignore another State’s acts, and every law that Congress has ever passed has invoked the full faith and credit of another State’s legislation.
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p>”All of these laws share a basic common denominator. They all implement the full faith and credit mandate. They do not restrict it. Not once has it been restricted in that way. For example, the Parental Kidnapping Prevention Act of 1990 provided the States have to enforce child custody determinations made by other States. The Full Faith and Credit for Child Support Orders of 1994 provided that States have to enforce child support determinations made by other States. It did not say you could not do it. It did not say you could avoid it. It did not diminish it. It said you have to enforce it. The Safe Homes for Women Act of 1994 required States to recognize protective orders issued in other States with regard to domestic violence.
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p>”Those laws are the products of constitutional exercises of the appropriate congressional law in implementing the full faith and credit clause. The bill before us, a statute, is the exact opposite. It is an extreme unconstitutional attempt to restrict and undermine the basic fundamental approach which helps create the concept of a unified and single nation.”
But I’m surprised that the Senator didn’t know that precedent already gives the states the right to reject full faith and credit on public policy grounds.
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p>Alabama was never going to be forced by the FFC clause to recognize a Massachusetts SSM, regardless of this statute.
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p>In other words, that speech, though well intended, is wrong. And it is surprising that he didn’t know that.
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p>In any event, it doesn’t appear that this particular provision of the statute is at issue here, unless I heard Nina Totenberg wrong. Rather, at issue is the failure of the federal government (and only the federal government) to recognize the marriage of people who are resident of a state that (i) has the legal authority to decide what a marriage is, and (ii) deems them to be married.
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p>I’m not sure if there are enough votes to get the result GLAD is looking for. I suspect that the likely result, especially if there is a plaintiff ruling below, will be to empower the knuckle-dragging elements within the GOP, and set them to three and a half years of frothing about something that isn’t high on the priority list of voters trying to survive a nasty recession.
he has a very long record (which he is justifiably proud of) of strong pro-LGBT equality legislative advocacy, and it has never endangered his reelection. He has one of the most solid equality stances in the senate, and one of the safest seats. He’s the senator to do this. Your “if-then” statement regarding Kerry is the biggest cop out I’ve seen all day. Way to keep the legislators responsible and on the ball!
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p>As for my senators, Patty Murray voted for DOMA, bless her heart. Maria Cantwell wasn’t in the senate at the time.
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p>Btw Joe Biden also voted for DONA.
if it works. One reason might be that having the Congress repeal it might be really tough because there are some Senators and Congressmen who would run the risk of being defeated.
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p>Obama might also not want this issue raised in Congress yet
because there are still so many issues where he will have to use his political capitalincluding health care and getting a global warming treaty passed (something Kerry will take the lead on in the Senate.)<
p>If the Supreme Court doesn’t act on it or decides not to declare it unconstitutional, I agree with you that Senator Kerry could be the perfect person to lead that effort.
Sorry, but “someone might not get reelected” and passing the buck to the courts to clean up your own chamber’s mess is beyond pathetic. I certainly hope this is just you musing, and not Kerry’s explanation for why he isn’t actively forwarding legislation. THERE IS NO MORE IMPORTANT ISSUE than relieving a minority of government-sponsored discrimination. Other issues come to the same level, yes, but shield your eyes if you ever say “wait just a little ok until we take care of the important things?” in front of me for real, because I’ll be spitting venom. This isn’t some theoretical gift we’re asking Congress to give we little pathetic special rights beggars, this is our birthright as American citizens we’re demanding.
Take it from someone who’s been there – you mess with Laurel on this subject at your peril, even if you happen to agree with her on ther merits!
This is an issue that may well affect her directly and it is clearly her number one issue. I can see why she had a problem with me speaking of the other major issues facing the country – many of which Kerry and the committees he is on are involved in. I still think that other issues are more urgent at the present time.
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p>I may be wrong, but I doubt that the type of bill she wants could pass the House or Senate at his point. That is another reason why I said that there are other issues, that all the Democrats want to address first, which have a reasonable chance of passing and which are very important and will make a difference have to be addressed first.
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p>However, there are times things that will not pass must be written, introduced, and fought for because they are important. In Kerry’s case, a clear example of this is Kerry/Feingold. The debate over that plan did not immediately get more than 12 other Senators to follow him, but it changed the discussion and within a little more than a half year – all Democrats – except Lieberman – were in favor of some variation of that plan – including many who called in “cut and run”.
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p>DOMA may not be repealed the first time a bill is considered, but even in it losing, it will cause the discussion needed to happen. So, I think I get her frustration that this is not being addressed when we have the biggest majorities in a very long time and the Presidency.
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p>My apologies in advance to Laurel for writing something that is likely presumptive – as I obviously don’t know her reasons.
Could pro equality states stop a federal constitutional amendment?
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p>Massachusetts
Connecticut
New York
Rhode Island
Vermont
Maine
New Hampshire
New Jersey
Maryland
Hawaii
California
Washington
Oregon
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p>All 13 would be needed to prevent 75% of states approving, unless some other states couldn’t get it passed. Maybe New Mexico (which recognizes foreign SSM) wouldn’t pass it. Maybe Illinois and/or Minnesota lighten up; maybe Colorado sanity overcomes Colorado spirituality.
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p>Still, I’m terrified that a win could backlash big time. GLAD et al really need to make sure we’ve got enough states behind us.
It would need 2/3 of both the House and the Senate before it ever got to the states. Not gonna happen any time soon.
as in 2-4 years w.r.t. an amendment. But, I could imagine a worst case scenario where the GOP does hold 51 senate seats and a majority in the house, and puts the screws to Dems in moderate districts.
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p>There’s also the ne’er-been-used end around: two-thirds of the state legislatures ask Congress to call a national convention to propose amendments.
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p>Again, it seems unlikely in both cases, but not outside the realm of possibility. Of course, time is on the side of equality, and if the haters couldn’t get this done five years ago, it doesn’t seem like they could get it done now…
that if even that craven monster bush couldn’t get the thing to a vote, it just isn’t going to happen. still, it is sobering to realize that we already have 29 states with anti-equality constitutional amendments, and 45 with punishing doma laws. so it does pay to be vigilant because if an amendment ever did make it our of congress, i think odds are decent that it would get passed by the states.
a multi-pronged strategy to (a) get individual states on board, and (b) get tUSA on board is so key. Of course, this has been the strategy by GLAD et al for quite some time now.
To get there they have to pick up 10. Here are the Senate races (per Wikipedia)
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p>#
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p> * 2.1 Retiring Senators
o 2.1.1 Ted Kaufman (D) of Delaware
o 2.1.2 Kit Bond (R) of Missouri
o 2.1.3 Sam Brownback (R) of Kansas
o 2.1.4 Mel Martinez (R) of Florida
o 2.1.5 George Voinovich (R) of Ohio
* 2.2 Democratic incumbents
o 2.2.1 Blanche Lincoln of Arkansas
o 2.2.2 Barbara Boxer of California
o 2.2.3 Michael Bennet of Colorado
o 2.2.4 Christopher Dodd of Connecticut
o 2.2.5 Daniel Inouye of Hawaii
o 2.2.6 Roland Burris of Illinois
o 2.2.7 Evan Bayh of Indiana
o 2.2.8 Barbara Mikulski of Maryland
o 2.2.9 Harry Reid of Nevada
o 2.2.10 Kirsten Gillibrand of New York
o 2.2.11 Chuck Schumer of New York
o 2.2.12 Byron Dorgan of North Dakota
o 2.2.13 Ron Wyden of Oregon
o 2.2.14 Patrick Leahy of Vermont
o 2.2.15 Patty Murray of Washington
o 2.2.16 Russ Feingold of Wisconsin
* 2.3 Republican incumbents
o 2.3.1 Richard Shelby of Alabama
o 2.3.2 Lisa Murkowski of Alaska
o 2.3.3 John McCain of Arizona
o 2.3.4 Johnny Isakson of Georgia
o 2.3.5 Mike Crapo of Idaho
o 2.3.6 Chuck Grassley of Iowa
o 2.3.7 Jim Bunning of Kentucky
o 2.3.8 David Vitter of Louisiana
o 2.3.9 Judd Gregg of New Hampshire
o 2.3.10 Richard Burr of North Carolina
o 2.3.11 Tom Coburn of Oklahoma
o 2.3.12 Arlen Specter of Pennsylvania
o 2.3.13 Jim DeMint of South Carolina
o 2.3.14 John Thune of South Dakota
o 2.3.15 Bob Bennett of Utah
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p>Looking at this – it would be tough for them to net 1 unless things change drastically – much less 10.
in 2010 and 2012. I used “worst case” to emphasize that this is not a situation I’m expecting. Then again, in December 2004 nobody expected 57(+2) Democrats in the Senate by 2009.
we’ve been experiencing heavy backlash since the hawaii supreme court made its fateful marriage equality ruling back in 1993. the backlash came into full bloom during the bush-rove years, when marriage was used as a gotv mechanism for the gop. i am not afraid of backlash because the reality is that haters will use any excuse to hate, and therefore backlash has been our reality for my whole adult life. before marriage it was aids.
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p>there is risk to every push forward, but I am delighted that GLAD is doing this. They have always proven themselves to be very smart about case selection and timing. I trust them. And, it is my belief that we need to stay on the offensive and maximize hater demoralization.
“how married gay couples are dissimilar enough to married hetero couples”
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p>With gentle respect, Mr. Lynne, that’s obvious on its face. But I take your meaning and intent. DOMA, as written, is indeed discriminatory. I suggest, however, that it is not discriminatory because it requires a man and a woman to comprise a marriage, it is discriminatory because it fails to recognize that there are circumstances outside those of marriageable entities, in which two people find themselves desirous of binding themselves to each other permanently.
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p>Love, you see, is a feeling you feel when you are about to feel a feeling you’ve never felt before! Seriously, nothing in that quote mentions sexuality or orientation.
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p>But I digress. Suppose a law were passed that did away with this discrimination by allowing state-blessed civil unions for two human beings who are not a heterosexual couple? Such a union would contemplate a similar permanent binding as a state-blessed marriage, complete with all the legal entitlements thereto; insurance, taxes and tax law, obligations and parental rights to and for their children, wills, trusts and estates, dissolution — the whole ball of wax?
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p>(I mention children above because of the eminently disabusable notion held by some hetero folks that gays and lesbians are prone to pedophilia — a notion for which I can find absolutely no evidence. And since I have both children and gay friends, believe me, I’ve checked.)
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p>This would perserve the sanctity of marriage, as it is commonly defined by religous manifestos, and still extend the dignity of the state’s blessing equally. And I don’t see this as “separate but equal,” I see it as a solution to the problem faced by Christians and other religous groups who face the dictate of their manifestos and beliefs on one hand, and the demands for society to bless gay marriages on the other. And I don’t see how such an arrangement could violate either the prohibition clause (erroneously called the separation clause) of the First Amendment, or the Fourth Amendment.
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p>Most of you are aware that I am opposed to “Don’t Ask, Don’t Tell,” and in favor of opening the Military to gays and lesbians. If we have discrimination in DOMA, I don’t see that it can’t be eliminated without violating religous sacraments.
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p>I would value your response, and that of others.
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p>Best,
Chuck
It would have to be a Federal one that makes it clear that all existing laws that refer to marriage, married persons, martial state, etc. also apply to people in such civil unions.
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p>I don’t see there is any religious issue here at all. Civil marriage in this country has always been legally distinct from religious marriage. For instance, no one can currently force the Catholic church to marry two divorced people. Same sex marriage is really no different than any number of other marriages that are not blessed by various churches.
I meant to include the word ‘Federal’ above. Dumb omission.
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p>As to the religious issue, I think it really does exist, in the minds of those of most of those with a religious adherence. And I also think there are two types of those folks.
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p>The first is the person who doesn’t want to see the church’s sacraments violated, and is opposed to gay marriage for that reason. The second is the homophobe who simply is using his so-called religiousity to mask his hatreds. These are the clowns who give conservatism a bad name.
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p>Best,
Chuck
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p>Because some religious people believe that marriage is theirs to co-opt doesn’t make it so. As Kevin rightly points out, there is a federal component here and it doesn’t speak to any religious faith whatsoever. Two separate entities perform marriages. The religious entity should not and does not dictate what the governmental or civic entity does regarding marriage.
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p>
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p>This also makes no sense. A particular religious faith’s sacraments are not violated by similar behaviors of those unrelated to the faith. For example, if religion A performs a baptism ritual one way and another completely unrelated group B performs a baptism ritual in a completely different way, each conforming to their own beliefs and tenets, can group B be forced to forfeit their baptism ritual to conform to religion A’s sensibilities? No.
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p>Religion does not own marriage and it cannot force people who view marriage differently to adhere or conform to their particular flavor of marriage. The government also performs marriage and, rightly, doesn’t give a rat’s ass about how any one religious groups views or performs their marriage own ritual.
We have agreed to disagree. Marriage is a covenental sacrament to those on the Christian right, who are not homophobes. (Those who are don’t speak for me.) The state has elected to usurp the term “Marriage” from religious bodies who view marriage as the purview of the Church, or Synagogue, or Mosque.
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p>We view “similar behaviors,” if that means marriage, by definition, as an intolerable encroachment on the sacrament, if it does not meet the definition of Christian marriage. I won’t speak for conservative Jews, or Muslims, or Hindus, or Buddhists, but I suspect if you go there, you’ll get similar responses.
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p>And religious people haven’t co-opted marriage. If you stop and consider the origins of marriage (we aren’t talking just the Bible here!) you’ll find it quite the other way ’round. Yeah, anyone can argue differently, based on narrow or myopic observations, but that doesn’t change reality.
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p>What your insistence on gay marriage is doing, in the minds of tolerant ‘religious people’ (yes, Virginia, there really ARE such people, and they aren’t related to Santa!) is pushing them into a position where they take as hard a line as do you. You’re outnumbered, between twenty-five and fifty to one, and that’s a battle you can’t win. If you keep pushing, you may lose everything you’ve gained.
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p>And no, that isn’t a threat, rather, it’s a statement of fact, from somebody who’s spent a lengthy life learning how reality works. It is said that history repeats itself. In this instance, I fear the LGBT community may just be working its ass off to become part of that history.
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p>Best,
Chuck
Civil marriage is much older than Christianity. If anything it is religious zealots who are trying to usurp the term.
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p>Oh really? Actually, no. The civil rights issues around SSM will eventually be resolved in favor of same-sex couples, and people will look back upon the shameful behavior of the religious hegemonists in this nation with disdain similar to that which we reserve for Jim Crow supporters.
…that the one state that used to PROHIBIT clergy from performing marriages was – wait for it – Massachusetts! This was back in the days of the Puritan colony, so it seems that the group often held up as an example of this nation’s alleged Christian founding understood marriage to be exclusively a civil contract.
… the state’s consideration of ‘sanctity’ should be exactly none. Taking sanctity out of the equation (which the state must), what’s left is for the state to consider what shall remedy the discrimination. The obvious answer is to expand the eligibility of marriage. It’s really as simple as that. It’s not (nor can or should it be) the state’s job to ‘uphold sanctity’ – whatever that means for whoever.
After an excellent summary of the case and the history behind it, Link ends his blog post with this comment.
I guess that’s what we all want to know: will Obama & Congress clean up the DOMA mess legislatively as some of them have promised, or will they see this case as another excuse to pass the buck?
I know they’re a certified hate group, but they’re so damn funny! For example, their commentary on GLAD and the DOMA suit:
No, they’ve just won every major case they’ve filed. Dumb luck I guess.
Well yes, Brian, you might like to say that the Parkers’ case was so mind-numbingly baseless that the judge got a hernia while laughing it out of court.
Heaven forbid that an AG should put a premium on equal protection of the laws!
Lawbreakers rarely appreciate the police interfering in their pursuits.
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p>And to wrap it all up, a spot of Godwin’s Law:
What, no quotes from Pink Swastika? You’re getting lazy, Brian!