Another court declares DOMA Sect 3 unconstitutional

owndbycatz

The federal district court in Connecticut issued a ruling today that DOMA, Sect 3--the part of DOMA that says the federal gov't can't recognize same-sex marriages for purposes of federal benefits--is unconstitutional. Here's the decision:
http://www.scribd.com/doc/101655391

And an article by Chris Geidner:
http://www.buzzfeed.com/chrisgeidner/federal-trial-court-in-connecticut-strikes-down-do

EvanKeel

It appears to be the same judicial reasoning that's been used in most of the other cases.

owndbycatz

It appears to be the same judicial reasoning that's been used in most of the other cases.

Pretty much. Part of what makes this decision somewhat unique is the analysis regarding the standard of scrutiny for the equal protection claim -- the discussion of whether gays & lesbians should be considered a suspect class and thus make laws which discriminate based on sexual orientation particularly hard to justify.

As the decision discusses, there is no binding precedent in this jurisdiction (2nd Circuit Court of Appeals) that says what standard of review to use in an equal protection claim brought by Gs&Ls. This judge says it should be heightened scrutiny, then goes on to say it doesn't require a heightened scrutiny analysis to strike down the law; it fails even under the very loose standard of "rational review."

There is another case holding that came to this same conclusion - that DOMA should be subjected to heightened scrutiny - Golinski v. OPM (in California). But there is an appeals court case in that jurisdiction that is (questionably) still good precedent that says only rational review can apply.

I know this gets into a lot of law nerd hair splitting, but the fact is that the holy grail of civil rights coups for GLBT people (at least in the courts) would be for the Supreme Court to decide that any law which discriminates based on sexual orientation must withstand heightened scrutiny. That would make it very, very difficult for any law discriminating against glbt people to pass constitutional muster.

owndbycatz

An interesting article looking at this question of level of scrutiny:
http://jurist.org/forum/2012/07/julie-nice-minimalism-doma.php

EvanKeel

it's worth noting. The issue of scrutiny is potentially kind of a big deal here.

kellydanforth

It's difficult to fathom that we are still fighting this fight. You would think that our country's history would have taught us already that keeping good people down was, is and will always be wrong.

psiphiorg

The only way for the Supreme Court to decide that laws which discriminate on the basis of sexual orientation or identity should be subjected to heightened scrutiny is if they find that such a law would otherwise be valid under rational review. Courts are accustomed to making the narrowest ruling they can, which means that if the law fails under the rational basis standard, there is no need to go further to decide whether a higher level of scrutiny would be required.

Another good thing about a narrower ruling is that there may be a larger majority that strikes DOMA down. I can count at least four votes (out of the necessary 9) for striking it down under heightened scrutiny, but we may get six or even seven to support a ruling which does not go that far, but does say that it fails rational basis scrutiny, and a 7-2 ruling plays much better to the public than a 5-4 decision. (I'm thinking of Kennedy as a very likely 5th vote, Roberts as a somewhat likely 6th, and Alito as a wildcard 7th.)

treetop57

Barney Frank thinks the Supreme Court will overturn DOMA in the next term: http://andrewsullivan.thedailybeast.com/2012/08/ask-barney-anything-when-will-we-see-the-end-of-doma.html

He also mentions something I didn't know. Republicans in the House recently voted to strengthen DOMA in the Defense Authorization bill.

treetop57

Whenever marriage amendments are on the ballot, you'll hear Republican argue, "We support equal benefits; we just think the word marriage shouldn't be redefined." At least, that's what I hear them argue in liberal places like California.

But they don't really believe in equal benefits, or at least their party does not.

Republican party platform committee won’t include civil unions for gay couples
By Liz Goodwin, Yahoo! News | The Ticket – 3 hrs ago

A committee drafting the Republican Party's platform decided not to add support for civil unions for gay couples into its document, according to the leader of a Republican gay rights group.

The committee voted down the civil unions amendment proposed by a Rhode Island delegate after "a good back and forth debate," according to Log Cabin Republicans President R. Clarke Cooper, though amendments may still be proposed and debated. Civil unions would provide more legal protections, such as hospital visitation rights, to same-sex couples. . . .

http://news.yahoo.com/blogs/ticket/republican-party-platform-committee-shoots-down-civil-unions-142819433.html

owndbycatz

The only way for the Supreme Court to decide that laws which discriminate on the basis of sexual orientation or identity should be subjected to heightened scrutiny is if they find that such a law would otherwise be valid under rational review. Courts are accustomed to making the narrowest ruling they can, which means that if the law fails under the rational basis standard, there is no need to go further to decide whether a higher level of scrutiny would be required.

While it's generally true that courts rule as narrowly as possible, there's a strong likelihood that SCOTUS will address the level of scrutiny if it takes any of the DOMA cases. The Department of Justice is arguing that laws which discriminate on the basis of s.o. should be subjected to heightened scrutiny and that DOMA fails under this standard.

The DOJ has been a bit cagey on the question of whether DOMA is constitutional under rational basis. When arguing the Massachusetts DOMA cases in front of the 1st Circuit Court of Appeals, they said the DOJ would "cease defending section 3 of DOMA on any basis, so I'm not here to defend it under any standard." But when one of the Judges pressed the issue and asked, "Do you have a position on what would happen if we use the rational basis test?" the DOJ's response was "We don't, your honor. We don't"

Because of this position, I think it entirely possible that the Court will at least touch on the question of scrutiny, even if it holds that DOMA, Sect. 3, is unconstitutional under rational review.

owndbycatz

And for anyone keeping score, there are now six separate cert petitions (the formal request that SCOTUS take a case) on the issue of DOMA, Section 3 filed with the Court.

psiphiorg

Here's where things stand:

* Windsor v. US - A widow in New York is challenging DOMA in that she had to pay about $360,000 in estate tax when her wife died, but if her spouse had been male then she would not have had to pay that tax. She won in the federal district court on June 6, 2012. The US (represented by the House of Representatives) is appealing to the Second Circuit Court of Appeals; Ms. Windsor is appealing to the Supreme Court (asking them to bypass the Second Circuit). This case is set for "conference" on Monday, September 24. If the Supreme Court decides to take the case during that conference, they should announce it the following day. If they decide not to take the case during that conference, they probably won't announce that until the following Monday. Or they may wait until they consider all of the DOMA challenges that are before them to make a decision about which, if any, to take up. In that case, we may not know for a while.

* Pedersen v. Office of Personnel Management - Six married couples and one widower in Connecticut, Vermont, and New York (all part of the Second Circuit) challenge DOMA on a variety of grounds, including not being able to add a spouse to a federal health insurance plan, being denied survivor's pension and Social Security survivor benefits, being denied time off work for the FMLA, and not being able to file joint income taxes. They won in the federal district court on July 31, 2012. Like Windsor, this case is being appealed to both the Second Circuit and the Supreme Court.

* Gill v. Office of Personnel Management - Three married couples and three widows/widowers in Massachusetts challenge DOMA on a variety of grounds, including not being able to add a spouse to a federal health or dental/vision insurance plans, not being able to use funds in a health savings account on their spouse, not being able to get retirement funds or insurance for a deceased spouse, and not being able to file joint income taxes. They won in the federal district court on July 8, 2010. This case and Massachusetts v. HHS, below, were consolidated, and the government appealed to the First Circuit Court of Appeals, and the plaintiffs won again on May 31, 2012. The government is appealing to the Supreme Court.

* Massachusetts v. United States Department of Health and Human Services - The Commonwealth of Massachusetts challenge DOMA on several grounds, including violating the Tenth Amendment and the Spending Clause of the US Constitution by using the threat of loss of federal funds to require the state to discriminate against its own people. Specifically, Massachusetts would risk fines if it buried a veteran's husband in the veteran's cemetery, and they must ignore spouses when determining eligibility for Medicaid and a state health plan, rejecting some who should be eligible and accepting some who should not be. They won in the federal district court on July 8, 2010. This case and Gill v. OPM, above, were consolidated; see Gill v. OPM for more details.

* Golinski v. OPM - A federal employee challenged DOMA because she was not able to add her wife to the federal health insurance plan. She won in the federal district court on February 22, 2012. The case is on appeal to both the Ninth Circuit and the Supreme Court.

owndbycatz

Well, you almost have it right: There are more petitions to the Supreme Court than you've accounted for.

In Windsor, both the Plaintiff and the federal government have filed separate petitions asking that the Supreme Court take the case before the 2nd Circuit reaches a decision. The feds just filed their petition on Sept 11. Parties' responses to the petitions aren't due in that case until October 19. Though Windsor's petition has been distributed for the September 24 conference, we all expect it to be delisted and redistributed for a later conference. In the meantime, oral arguments in the 2nd Circuit case are set for September 27 in NYC. House Republicans (technically, the Bipartisan Legal Advisory Group of the House, i.e., "BLAG") are intervenors in the case for the purpose of defending DOMA, given that the Executive Branch (the Dept. of Justice, i.e., DOJ) has taken the position in court that DOMA is unconstitutional. BLAG tried to get the 2nd Circuit to cancel the arguments, but the Court denied the request.

In Pedersen, like Windsor, both the plaintiffs and the federal government have filed petitions. The feds also filed their petition in this case on Sept 11 and responses in both of the Pedersen cases are due October 19. The Pedersen case is also on appeal in the 2nd Circuit, but in very early stages of the appeal -- no word yet when/if arguments will be scheduled in this case.

In the consolidated cases of Gill and Massachusetts, there are three separate petitions before the Supreme Court: (1) the Executive Branch (the DOJ on behalf of the federal defendants); (2) BLAG; and (3) Massachusetts. BLAG is appealing because it disagrees with the decisions below; the DOJ is appealing for "procedural reasons" to get a final decision in the case; and Massachusetts is appealing "in an abundance of caution" because, while it won as to final outcome, the 2nd Circuit didn't agree with Massachusetts's arguments that DOMA violates the Tenth Amendment and Spending Clause.

In Golinski, it was the DOJ that petitioned the Supreme Court to take the case before the 9th Circuit makes a decision. At the time of the petition, the only petitions in DOMA cases were those out of Massachusetts. There is speculation that the DOJ asked the Supreme Court to take this case as a hedge against the possibility that Justice Kagan will recuse herself from the Massachusetts cases. Shortly after the DOJ filed its petition, the 9th Circuit cancelled arguments that had been scheduled for September 10 and halted all 9th Circuit proceedings in the case, pending a final outcome in the U.S. Supreme Court.

I have all of the Supreme Court filings (petitions, responses, replies, letters, etc.) in all the DOMA cases uploaded to my Scribd account. The account isn't really designed to be used as a stand-alone, but instead is part of a project I'm working on (website to be launched in the near future) so it's not terribly easy to find things. If there's anything in particular anyone is interested in, let me know and I'll point you to the link.
http://www.scribd.com/EqualityCaseFiles

If anyone is interested in keeping up-to-date in the cases and you're on facebook, you can subscribe to my public facebook feed. Drop me a private message and I'll send you the link. I post updates in these and other cases from around the country impacting lgbt rights.

*edited to correct Bipartisan Legal Advisory "Group" (not "Committee")

treetop57

Ginsburg spoke Wednesday at the University of Colorado in Boulder. She was asked by a student about the equal-protection clause and whether the nation's high court would consider it applying to sexual orientation.

Ginsburg said with a smile that she couldn't answer the question. She said she could not talk about matters that would come to the court, and that the Defense of Marriage Act would "most likely" come before the court before the end of the current term.

http://news.yahoo.com/ginsburg-predicts-gay-marriage-high-court-005151406.html?_esi=1

Perhaps less there than meets the eye. I don't know how strategic justices are when deciding to vote to grant certiorari. Would the four liberal justices deny cert if they doubted they could get a majority? I guess in this case with a four-four split and Kennedy up for grabs, either side has the four votes for cert if they vote strategically and think Kennedy is on their side.

owndbycatz

I don't know anyone who doubts the Court will take at least one of the DOMA cases. If they deny cert, that leaves the 1st Circuit's decision in place, which means DOMA doesn't apply in that circuit, but continues being enforced (and challenged in court) in the rest of the country. Given that situation, the fact that it's a federal law that impacts the entire country, the pressure with multiple petitions and the DOJ asking the Court to take it, it's almost a certainty that they will grant cert in at least one. The question is really how many of these will they take and possibly consolidate.

Now, whether the Court will take the Perry (Prop 8) case is far less clear. Personally, I'm hoping they don't. If they deny cert, the 9th Circuit's decision striking it down stands, Prop 8 is dead, and marriages can resume in California. I'd rather a right to marry case comes to the Court after it has ruled on DOMA. At present, the Perry case is set for the Court's Sept 24 conference, but it's highly likely the Court won't take it up at the time and will reschedule it for a later conference.

treetop57

http://www.salon.com/2012/10/05/scalia_says_abortion_gay_rights_are_easy_cases/

This article doesn't give a source for this information:

The issue of gay rights, or more specifically same-sex marriage, is expected to be a big one in the term that began this week. While the justices initially were scheduled to discuss the topic at their private conference in late September, it now appears likely that they will not make a decision about whether to take up a gay marriage case until after the presidential election, which would mean arguments would not take place until the spring.

I find it amusing they don't give a source, because one topic of the article is Scalia's contention that you can't believe anything you read about internal workings of the court:

“Look it, do not believe anything you read about the internal workings of the Supreme Court,” he said. “It is either a lie because the press knows we won’t respond — they can say whatever they like and we won’t respond — or else it’s based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source. So one way or another it is not worthy of belief.”

I also found this amusing:

He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said. This imaginary justice, Scalia continued, announces that it turns out “‘the Constitution means exactly what I think it ought to mean.’ No kidding.”

As opposed to Scalia, who announces, "It turns out, the Framers meant exactly what I think they ought to have meant!" No kidding.

http://www.salon.com/2012/10/05/scalia_says_abortion_gay_rights_are_easy_cases/

owndbycatz

http://www.salon.com/2012/10/05/scalia_says_abortion_gay_rights_are_easy_cases/

This article doesn't give a source for this information:

The issue of gay rights, or more specifically same-sex marriage, is expected to be a big one in the term that began this week. While the justices initially were scheduled to discuss the topic at their private conference in late September, it now appears likely that they will not make a decision about whether to take up a gay marriage case until after the presidential election, which would mean arguments would not take place until the spring.

The source of that information is an understanding of how the Court's schedule works. Three of the DOMA petitions won't be ready to be distributed for conferences until late in October, meaning they won't be taken up until one of the November conferences at the earliest. It's a safe assumption that the Court will consider all the DOMA petitions at the same time so that is when they will all be considered. Saying it will be "after the presidential election" makes it sound as though that is the intent of the delay; but it's really just a result of when some of the petitions were filed and thus when responses for those petitions are due.

Though there's no reason for the Court to be waiting to consider the Perry (Prop 8) case petition until it considers DOMA cases, that appears to be what they're doing, so we likely won't get word on that case until late November (at earliest) as well.

As to, "the justices initially were scheduled to discuss the topic at their private conference in late September," the Prop 8 petition and one of the eight DOMA petitions were distributed for the September 24 conference; this was just because they were ready (all responses received) and thus automatically placed on the conference list. But there was general consensus that no action would be taken on the one isolated DOMA petition and some speculation that the Court would wait on the Prop 8 decision. That seems to be the case, as the Court has made no announcement one way or another on these two cases. As some point, we'll see both the cases redistributed to another conference, likely at the time all the other DOMA cases get distributed.

owndbycatz

Second Circuit decision in the DOMA case Windsor v. USA just in. In a 2-1 split decision, DOMA, Sect. 3, declared unconstitutional. This is the second federal Appeals Court to come to this conclusion. Also, VERY significant - the majority says DOMA must be subjected to heightened (intermediate) scrutiny.

Majority opinion:
http://www.scribd.com/doc/110431508/447

Dissent:
http://www.scribd.com/doc/110433273/448

treetop57

Citations omitted.

The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,” whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” . . .

In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority . . . .

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” “Substantially related” means that the explanation must be “‘exceedingly persuasive.’” “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” BLAG advances two primary arguments for why Congress enacted DOMA. First, it cites “unique federal interests,” which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution.” Second, BLAG argues that Congress enacted the statute to encourage “responsible procreation.” At argument, BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny. . . .

DOMA’s classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.

To lay people, it may sound bad that this court found gay or lesbian married couples a "quasi-suspect class." It really means the opposite of what it sounds like. It means that it is sort of suspicious when government uses that classification to treat some people differently from other people, not that the people themselves are suspicious.

owndbycatz

All the DOMA cases and Perry (Prop 8) case have been distributed for the Supreme Court's November 20, 2012, conference. This means we should know either Nov 21 or Nov 26 whether or not the Court will take any of these cases. If they do any or all, we can expect oral argument this Spring and a decision by the end of the Court's term in June, 2013.

Also on the distribution list - another case impact LGBT rights: Diaz v. Brewer (Brewer v. Diaz at the Supreme Court), the appeal of a preliminary injunction Lambda Legal obtained keeping in place Arizona state employees' domestic partner benefits pending a final decision in the case. The state of Arizona appealed the preliminary injunction to the 9th Circuit Court of Appeals, which upheld it (leaving benefits in place), and Arizona is now asking the Supreme Court to lift the injunction so the State can deny the benefits until the judge makes a final decision. Again, all that the Supreme Court will be deciding in late November is whether or not to hear the appeal. If it decides "yes", it won't decide on the merits (whether to lift the injunction) until some time next year.

treetop57

And if the Supreme Court denies cert, the Ninth Circuit's decision stands and the benefits remain in place?