Another court declares DOMA Sect 3 unconstitutional
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And if the Supreme Court denies cert, the Ninth Circuit's decision stands and the benefits remain in place?
Yes, that's correct. If the Supreme Court denies cert, the 9th Circuit decision stands and it will issue its mandate (a formality that means its decision takes effect). Once the mandate is issued, marriages can resume in California.
The latest news: The Supreme Court has now moved all of these cases (Prop 8, DOMA cases, and Arizona's Diaz) from its conference on Nov 20 conference to the conference on November 30 -- yet another delay in getting any news on the fate of these cases.
Also just wanted to say that the fact that SCOTUS has delayed making a decision on whether or not to take to the Prop 8 case until it also decides which, if any, DOMA cases to take makes it more likely that we're going to see a long delay in a resolution to this case. Even if the Court doesn't announce it's granting cert to Prop 8, it may well delay any decision on the cert petition until after it reaches the merits on the DOMA cases, likely in June.0 -
Supreme Court delays decision on taking up gay marriage cases
By David G. Savage
November 30, 2012, 1:00 p.m. [EST]
The Supreme Court took no action Friday on a series of pending appeals involving gay marriage, putting off until at least next week a decision on which cases to hear.
The justices met behind closed doors to debate cases involving the Defense of Marriage Act and California’s Proposition 8, the voter initiative that limits marriage to a man and a woman. The court said only that it had agreed to hear two new business cases. . . .
http://www.latimes.com/news/politics/la-pn-supreme-court-cases-20121130,0,6426075.story0 -
And... nothing again today on the Court's Monday Order List. Lyle Denniston at SCOTUSblog reporting this likely means the cases have been shifted into conference of Friday, Dec 7.
It's official: the online dockets for the cases now show they've all been rescheduled for the Dec 7 conference0 -
Supreme Court to take up Prop. 8, DOMA
The Supreme Court announced today that it will consider the constitutionality of the federal Defense of Marriage Act and California's ban on marriage, two cases that could have a significant impact on marriage laws across the country.
The Defense of Marriage Act (DOMA), passed by Congress and signed by President Clinton in 1996, prohibits federal recognition of same-sex marriages. Both the first and second circuit court of appeals have struck down a provision of the law denying federal benefits, like Social Security benefits or the ability to file joint tax returns, to same-sex couples legally married. Because of these lower court rulings, DOMA has been declared unconstitutional in some regions of the country but not others -- an issue the Supreme Court should rectify.
The court will also consider California's Proposition 8, the ballot initiative banning same-sex marriage that voters passed in 2008. Prop. 8 passed after California Supreme Court granted same-sex couples the right to marry, putting California voters in the unique position of taking away rights granted by the court. After Prop. 8 passed, a federal court followed by the Ninth Circuit Court of Appeals said Proposition 8 was unconstitutional.
The high court is expected to hear arguments in both cases and issue rulings over the summer.
http://www.cbsnews.com/8301-250_162-57557877/supreme-court-to-take-up-prop-8-doma/0 -
Specifically, the Court agreed to take up the the Prop 8 case and petition filed by the federal government in the Windsor case. Here is the order.
http://www.scribd.com/doc/114792870/Supreme-Court-Order
And sorry I didn't report this sooner. I've been crazy busy answering questions on live blogs ever since the news broke.0 -
What do you think the questions about standing mean? Could they be trying to punt by saying none of the petitioners have standing?0 -
What do you think the questions about standing mean? Could they be trying to punt by saying none of the petitioners have standing?
I don't know if they're trying to punt, but one possible outcome for both the cases is that none of the petitioners have standing, in which case the Court won't come to a decision on the merits.
In the Prop 8 case (Hollingsworth v. Perry), there has been serious doubt from early on whether the Prop 8 Proponents (Hollingsworth, et al.) had standing to bring an appeal. The Proponents were given permission to intervene to defend the law at the trial level. However, it wasn't necessary for them to have federal standing in order for the case to go forward because there were parties with standing involved at trial (plaintiffs and the state/county official).
But once the named defendants dropped out of the case by declining to appeal the district court decision, it was necessary for the Proponents to have their own, independent standing in order for there to even be an appeal. This was an issue all throughout the appeal proceedings. Eventually, the 9th Circuit determined Proponents had standing and came to a decision on the merits. If the Supreme Court overturns this ruling on standing, the 9th Circuit decision will likely be vacated and Judge Walker's decision will be the final word on the case.
In the DOMA case, it's more involved. The Supreme Court is basically asking if BLAG (the House Republicans) has standing to appeal -- procedurally similar to the situation with the Proponents in the Prop 8 case -- but ALSO looking at whether the federal defendants (Executive Branch) can petition the court for review, given that it prevailed below.
While these are all important, and largely unresolved, questions of standing in federal courts, I find it hard to believe the Court would take up such high-charged cases just to resolve these issues.
And as to punting, they could have easily punted on the Prop 8 case by declining to take it. It's much harder to side-step the DOMA cases, but they're going to have to confront it at some point soon, so better now than later. Already, two different Circuit Courts have struck it down and I am confident the 9th Circuit would have followed if Golinski hadn't been put on hold. If the Court decides no standing for BLAG or DOJ in the Windsor DOMA case, I don't see where that leaves it, as the same issues exist in all the other DOMA petitions currently at the Cour. I guess we'd have to wait until/if a lower court upholds DOMA and that case gets brought to the Court by a losing party.0 -
The Supreme Court has set a briefing schedule for USA v. Windsor (the DOMA case).
http://www.scribd.com/doc/116873895/Briefing-Schedule
Opening briefs are due January 22, 2013. The House Republicans (BLAG) will file the opening brief on the merits and the attorney appointed by the Court to argue against BLAG's and DOJ's standing will file the opening brief on the standing/jurisdiction issue.
There's still no word on when oral argument will be. In order to be in March, it would require shortening the usual 30 days for a reply, but that's certainly possible. If not, it will be during the April sitting - either Apr 15-17 or Apr 22-24.0 -
The Supreme Court released its oral argument schedule for March. The Prop 8 case (Hollingsworth v. Perry) is scheduled for March 26 and the DOMA case (USA v. Windsor) for March 27. Both arguments start at 10am. Currently, arguments are set for just the standard one hour, but the Court could decided to expand that time.0
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From the Plaintiffs' brief to the Supreme Court in the Prop 8 case. (Plaintiffs are pro-marriage equality. Proponents are anti-marriage equality.)Proponents accuse Plaintiffs (repeatedly) of “redefining marriage.” But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court’s declarations regarding the emotional bonding, societal commitment, and cultural status expressed by the institution of marriage, Proponents actually go so far as to argue that, without the potential for procreation, marriage might not “even..exist[ ] at all” and “there would be no need of any institution concerned with sex.” (internal quotation marks omitted). Thus, under Proponents’ peculiar, litigation-inspired concept of marriage, same-sex couples have no need to be married and no cause to complain that they are excluded from the “most important relation in life.” Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.
This, of course, reflects a complete “failure to appreciate the extent of the liberty at stake,” not to mention matters such as love, commitment, and intimacy that most Americans associate with marriage. As Proponents see it, marriage exists solely to serve society’s interest; it makes no sense to speak of an individual’s right to marry.
Quoted by Andrew Sullivan. http://dish.andrewsullivan.com/2013/02/22/prop-8-goes-to-washington/0 -
Slightly shocked that limited-government conservative George Will recognizes that DOMA isn't consistent with small-government conservative principles:As the scholars’ brief says, DOMA “shatters two centuries of federal practice” by creating “a blanket federal marital status that exists independent of states’ family-status determinations.” Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. By striking down DOMA — by refusing to defer to Congress’s usurpation of states’ powers — the court would defer to 50 state governments, including the 38 that today prohibit same-sex marriage.
http://articles.washingtonpost.com/2013-03-20/opinions/37870263_1_doma-defense-of-marriage-act-general-police-power0 -
Slightly shocked that limited-government conservative George Will recognizes that DOMA isn't consistent with small-government conservative principles:As the scholars’ brief says, DOMA “shatters two centuries of federal practice” by creating “a blanket federal marital status that exists independent of states’ family-status determinations.” Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. By striking down DOMA — by refusing to defer to Congress’s usurpation of states’ powers — the court would defer to 50 state governments, including the 38 that today prohibit same-sex marriage.
http://articles.washingtonpost.com/2013-03-20/opinions/37870263_1_doma-defense-of-marriage-act-general-police-power
In a perverse sort of, batsht crazy libertarian way, I suppose. I have to disagree with his premise that marriage is a state's rights issue. I also have to disagree with his logic that striking it down would somehow legitimize the authority of the states in terms of prohibition of same-sex marriage.
I seriously think that all of this crap is just a chip on State's Rights enthusiast's shoulders about losing the damn civil war. The south lost. Marriage has been declared a right. Move on. I really don't know how (from a conceptual stance, if not legal) we can possibly suggest that same-sex marriage is not a right when 1) Marriage has been declared a right by SCOTUS, and 2) SCOTUS has ruled that homosexuality is a part of identity--that behavior in this case defines identity. Game, set, match. Then again, I'm no where near a lawyer, just one of those people who thinks they're a constitutional scholar when something pisses them off : )0 -
As distasteful as you find it, Evan, it looks like the states rights argument is going to be what pushes federal recognition of same sex marriages over the finish line. All the sources I'm reading say Kennedy's questions today make it clear that is his main concern with DOMA.0
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As distasteful as you find it, Evan, it looks like the states rights argument is going to be what pushes federal recognition of same sex marriages over the finish line. All the sources I'm reading say Kennedy's questions today make it clear that is his main concern with DOMA.
And depending on how that goes down, could it leave the door wide open for certain states to prevent same-sex marriages from being legal through tyranny of the majority, despite marriage being constitutional right and all? Perhaps those couples could get married in a state where it's legal, and it would be recognized federally, but certainly not locally.
In the long run, I'm not sure I see that as a good thing, but leave it to Kennedy to take the narrowest path possible.0 -
Overruling DOMA based on states rights would do exactly what you fear, Evan: Allow states to bar same-sex marriage as well as permit same-sex marriage. Unless the court does something unexpected on the Prop 8 case and finds that denying marriage equality violates federal equal protection.
Sure, I'd like a whole loaf, but I'll take half a loaf for now!0
