THE NATION – Will the Supreme Court Be Left Behind on Gay Marriage?

Will the Supreme Court Be Left Behind on Gay Marriage?

Proposition Love Jewelry.  *Portion of the proceeds supports Marriage Equality and Gay Rights.
Proposition Love Jewelry. *Portion of the proceeds supports Marriage Equality and Gay Rights.

Nan Hunter on March 4, 2013 – 4:02 PM ET

In case you haven’t noticed, the biggest question facing the Supreme Court when it decides the gay marriage cases this spring has become whether it can rise to the level of LGBT rights ferocity already achieved by American business leaders, moderate Republicans and the Obama administration. By the end of last week, when all the amicus briefs in support of striking down California’s Prop 8 and the Defense of Marriage Act (DOMA) had been filed, support for marriage equality seemed to have been transformed into the new normal—at least outside the confines of the Court.

In fact, judging from the press coverage of the briefs, if the justices don’t rule in favor of gay marriage, it is the Court that will look bad. This perception is an incredible achievement, a brilliant exercise in political framing by the lawyers and legal organizations behind the two cases, who mobilized the amicus show of force. The business brief and the Republican brief, especially, are clearly designed to provide political cover for the Court’s five conservative Justices.

While nothing is certain, there is virtually unanimous agreement among lawyers and law professors that the tougher case for gay rights groups is the challenge to Prop 8 rather than the one to DOMA. The Prop 8 case raises the question of whether all of the forty other state laws banning gay marriage are constitutional, while DOMA implicates only a federal recognition policy that leaves variance in state laws intact.

The best hope for winning Hollingsworth v. Perry, the Prop 8 case, remains either securing a narrow ruling that invalidates only the California law, or persuading the Court that it need not reach the merits at all, relying on the argument that those defending Prop 8 lack the necessary standing because they are private parties that have no authority to enforce it. (The governor and attorney general of California declined to defend the law.) From the beginning, though, the Ted Olson-David Boies strange bedfellows team that brought the case has argued that every law banning gay marriage should be struck down. Even six months ago, that position seemed too radical to attract much support outside the circle of true believers.

Now, however, a ruling of national scope is precisely the outcome endorsed in the brief filed by 100 corporations and in the Republican brief signed by luminaries including former White House officials Ken Duberstein (Reagan Chief of Staff) and Stephen Hadley (Bush National Security Advisor); Iraq War hawk Paul Wolfowitz; two Chairs of the Council of Economic Advisers under Bush; the former Director of the Congressional Budget Office; a Justice Department official from the Nixon Administration; the former Chair of the Federal Communications Commission, who is also Colin Powell’s son; and four former Republican governors. And, oh yes, Clint Eastwood.

What happened to make possible this conservative blessing of what had seemed to many like such a radical outcome? Fundamentally, the only change is that the political gestalt has shifted so that what was always a conservative claim—to gain access to the core institution for privatizing a broad range of social functions—is increasingly being endorsed by conservatives. Sooner or later, it had to happen.

Nonetheless, it is unquestionably true that the conventional understanding of where the center of American politics stands on this issue has dramatically moved. The reasons are many. A cumulative process, especially since 2009, has driven support for legalizing gay marriage ever higher in public opinion polls. The shock of the 2008 defeat in California catalyzed a younger generation of gay men and lesbians, with ardent support from straight allies, to insist on marriage as the premier gay rights issue. Since that election, gay groups have won a series of state-level battles, as several legislatures legalized equal marriage, including New York (with one chamber controlled by Republicans). At the national level, Congress repealed Don’t Ask Don’t Tell.

The icing on the wedding cake came with last November’s election. Voters in three states affirmatively chose to adopt gay marriage, and Minnesota voters rejected the attempt to pass a Prop 8-like measure. Moreover, the first President ever to endorse marriage equality was handily re-elected, without his position ever surfacing as a controversial issue in the campaign. Indeed, support for gay marriage, along with immigration reform, has become the litmus test most frequently identified in the press for assessing whether the Republican Party can rebrand itself as moderate and escape terminal fuddy-duddyism.

Of course, the outcome in the Supreme Court will be decided not by polls or pundits but by nine individuals; actually by six, since there is no question as to which result Justices Scalia, Thomas and Alito will endorse. But Justice Kennedy, who wrote the two strongest opinions supporting gay equality in past cases, and even Chief Justice Roberts, who has no real track record in this area, are likely to take seriously the libertarian and business arguments for allowing gay couples to marry. Not doing so would continue the house-divided status quo, in which one’s marital status and even the possibility of divorce depends on an increasingly irrational mélange of different state laws. And, as the firepower across the political spectrum in support of gay marriage so dramatically demonstrates, the ultimate resolution is inevitable. Best just to bite the bullet and do it now.

If this all sounds a bit too good to be true, maybe it is. Justice Kennedy is also a strong believer in state sovereignty, and a decision forcing legal change in forty-one states may be too much for him to join. The great bulk of the US population lives in a jurisdiction where gay marriage is not legal. The defenders of Prop 8 will to try assuage the justices that if the political process is left to work, more and more states will re-amend their constitutions and change their statutes to gradually adopt gay marriage laws on their own, without judicial “interference.” In addition, the liberal justices who support gay marriage may worry that a sweeping Roe v. Wade-like decision will trigger a massive backlash. These considerations combine to make that standing argument sure seem like a nice way to kick a vexatious can down the road.

This is the new political environment in which the legal arguments about marriage equality will succeed or fail. But that might not be enough to put gay marriage supporters over the top. Supreme Court justices breathe the same cultural air that the rest of us do, but they don’t have the luxury that politicians have to just say—hey, guess what, I’ve changed my mind on that one. The substantive legal arguments have to be both persuasive and consistent with other applications of the same body of doctrine. Even if a judge wants to see a certain result, the opinion “has to write”—the analytic structure has to support that result.

The substantive questions in the DOMA case (which also has a jurisdiction/standing question, though it is probably less likely to prove decisive than the one in Perry) all arise from the Equal Protection Clause of the Fourteenth Amendment. In previous civil rights cases, the Court has developed a set of increasingly stringent levels for reviewing legislative classifications, with racial classifications receiving the highest level, or strict scrutiny; and gender classifications requiring heightened scrutiny, which is somewhat less rigorous. The baseline and point of comparison for both is called rational basis review, a lenient standard under which courts defer to legislative judgment if the distinction drawn has a rational relationship to any legitimate government interest.

So far, the Court has not explicitly applied either heightened or strict scrutiny to sexual orientation discrimination, but it did nonetheless strike down an anti-gay state law by applying what seemed to be a heightened version of rational basis review. As a result of the Supreme Court not being more transparent in its approach in gay cases, the lower federal courts are all over the board in terms of whether they apply heightened scrutiny, rational basis review with bite, or deferential rational basis review.

The selection of the standard is critically important because it usually determines the outcome as to whether a law is ruled unconstitutional. For example, the Justice Department argues in its brief that DOMA is unconstitutional if heightened scrutiny is applied, but valid if rational basis review is used, unless the Court uses heightened rational basis, in which case DOMA is unconstitutional after all. (Are you still with me?) The most important outcome of the DOMA case for the future of gay rights law is that the Court is likely to declare itself on which standard should be applied to any law that discriminates based on sexual orientation.

It is also true in Perry, the Prop 8 case, that the Court could determine the law’s constitutionality by using an Equal Protection analysis. However, in that case there is another doctrinal option. Under the Due Process Clause (i.e., no state can deprive an individual of liberty without due process of law), the Court has held repeatedly that the right to marry is a fundamental right. When a law deprives persons of a fundamental liberty right, the denial must be narrowly tailored to achieve a compelling state interest.

Until just a few years ago, the majority of courts deciding gay marriage cases ruled that although there was a right to marry, there was not a right to same-sex marriage. Those two examples, judge after judge said, were just different, essentially and tautologically so. But U.S. District Court Judge Vaughn Walker, who conducted the trial in the Prop 8 case, ruled that one basis for the law’s unconstitutionality is its violation of the due process liberty right to marry.

The Olson-Boies brief in the Supreme Court opens with this liberty claim; the equal protection argument comes second. Usually litigators begin a brief with what they believe is their strongest argument, suggesting that Olson may push the Court for a victory based on recognition that the marriage-childbearing link being pressed by Prop 8’s defenders doesn’t justify denial of a right as important as marriage. Indeed, the first sentence in the brief quotes from a 1978 Supreme Court decision stating that marriage is “the most important relation in life,” a quotation repeated twice more in the first four pages of the brief.

If Perry is decided on liberty grounds, its scope will be limited to marriage rather than applying to all sexual orientation classifications. But for many people, that would be like saying that a truce applies only to ending a war, rather than preventing all future battles. If gay couples can’t be excluded from marriage, what forms of government discrimination could possibly be constitutional?

The next stage in this saga is that the Court will hear oral arguments in Perry on March 26 and in Windsor v. United States, the DOMA case, on March 27, in what will be a feast for constitutional law buffs. Based on the questions asked by the justices, the betting is certain to be fast and furious on how the cases will come out. That enterprise, however, is notoriously prone to mistakes, given how often the questions reflect a Justice playing devil’s advocate rather than tipping her hand.

Because these cases will be among the last argued during the current term, they will likely be among the last in which the opinions are issued. There is no deadline for when the Court must decide cases, but it will announce all of the term’s opinions before leaving for the summer. For gay marriage, that almost certainly portends nuptials—or not—in June.

Queerty – Facebook Is Filing Marriage-Equality Amicus Brief With Supreme Court

Facebook Is Filing Marriage-Equality Amicus Brief With Supreme Court

A note on LGBTQ@Facebook reveals that the social-media giant will be filing a brief this week in opposition to the Defense of Marriage Act and Proposition 8, both of which are before the Supreme Court in March:

This week, Facebook is proudly joining hundreds of businesses in submitting briefs to the U.S. Supreme Court supporting same-sex marriage. The briefs explain to the Court how the Defense of Marriage Act and California’s Proposition 8 discriminate against employees in same-sex marriages and create undue burdens on companies and employees.
We’ll post links to both filings on the LGBTQ@Facebook page when they are available.
That’s a status update we can get behind!
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BY: DAN AVERY
ON: FEB 26, 2013

 

 

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Pink News – 30 Gay and lesbian lawyers to be sworn into the Supreme Court next week

US: 30 Gay and lesbian lawyers to be sworn into the Supreme Court next week

by James Park
16 January 2013, 1:00am

The swearing-in ceremony takes place next week

30 openly gay and lesbian lawyers will be sworn into the US Supreme Court bar in a ceremony to be held next week.

It will be the first time that representatives of the National LGBT Bar Association will take part in the mass swearing-in that occurs when the court is in session.

Although openly gay and lesbian lawyers already practice before the Supreme Court, next Tuesday’s ceremony will the first time that they will be identified as members of the LGBT Bar Association.

The association says that many members will also be in Washington DC to see President Barack Obama be inaugurated for his second term on Monday.

Los Angeles Times – Gay marriage in the balance as Supreme Court takes up Prop. 8

Gay marriage in the balance as Supreme Court takes up Prop. 8
December 7, 2012 | 3:53 pm

Gay rights activists said the stakes were high as the U.S. Supreme Court on Friday agreed to decide the issue of gay marriage.

The high court will decide on the legality of Proposition 8, the ban on same-sex unions approved by California voters in 2008.

“I think any time our gay issues go to the U.S. Supreme Court we are all filled with anxiety because you never know,” said West Hollywood City Councilman John Duran. “We have a lot of anxiety because we realize whatever decision they make, if it’s adverse, we have to live with it for a generation.”

MAP: How gay marriage has progressed in the U.S.

Gay marriage foes were decidedly more ebullient, saying they liked their chances in front of the high court.

“Arguing this case before the Supreme Court finally gives us a chance at a fair hearing, something that hasn’t been afforded to the people since we began this fight,” said Andy Pugno, general counsel for Protect Marriage.com.

Others said they would be on edge until the high court rules.

Q&A: Prop. 8, gay marriage and the Supreme Court

“No one cries at civil unions or a domestic partnership. No one cries at signing a document at the courthouse. They cry at weddings,” said Dave Reynolds, 28, of Santa Monica, who married his husband in August in New York, where same-sex unions are legal.

Reynolds and his husband, JJ Shepherd, 31, first met as kids at summer camp. They would have preferred to get married in California, but they want to start a family with the legal protections a marriage license will grant them. The couple also wanted to tie the knot around the same age as their opposite-sex peers.

“We couldn’t wait for California to do it,” Reynolds said. His husband is an attorney, “so we know how long it was going to take.”
TIMELINE: Gay marriage since 2000

By agreeing to review Hollingsworth vs. Perry, the justices could hand activists a historic victory and legalize same-sex marriage nationwide. But gay rights advocates are also well aware that the court could rule against them and set the movement back at a time when same-sex marriage has seen a series of election victories at the state level.

“I think it’s the critical issue for gay and lesbian Americans today. It’s the issue that signals full equality and respect. Not just acceptance — respect,” said Tom Watson, the board chairman of Love Honor Cherish, a group that has advocated for a ballot initiative to repeal Proposition 8.

“The case goes directly to the scope of civil rights in this country, whether they’re extended to everybody or defined very narrowly,” Watson said.

Watson, a Los Angeles attorney, said he expected the justices to take the case, though it was tough to predict how the conservative-leaning court might rule. He noted that the court asked the parties to address whether supporters of Proposition 8 have standing, or the right to defend the measure. Normally, state officials would defend a state law being scrutinized by the Supreme Court, but California’s leaders have declined to do so.

If the court found that Proposition 8 supporters do not have standing, the justices would not have to rule on the merits of the case. Under those circumstances, the U.S. 9th Circuit Court of Appeals ruling that the measure is unconstitutional would stand and same-sex marriages could resume in California.
“It would be winning on a technicality,” Watson said.

Because of the uncertainty, Watson said his group would continue to consider pushing forward with a 2014 ballot measure to repeal Proposition 8. Either way, he said, California’s gay and lesbian couples are in for a frustrating wait.

“We have kids growing up with parents that don’t have the legal protections that marriage gives,” Watson said. “And, let’s face it, people die.”

Watson said someone had recently emailed his group asking whether his friends could get married. One member of the same-sex couple was in a hospice.

It pained Watson to send the answer: no.

Chi Chi LaRue, a 53-year-old West Hollywood resident, said he was “exhausted” by the ups and downs of the legal process.

On Friday, when reached by The Times for comment just as he was landing in Las Vegas, he said he was caught off guard: “I don’t have anything to say because I can’t process it.”