Marriage equality supporters gather outside the U.S. Supreme Court building Wednesday as the high court hears oral arguments in a case challenging the constitutionality of the anti-gay Defense of Marriage Act. (Courtesy of GLAAD)

LGBT legal experts believe majority on Supreme Court will find law unconstitutional

LISA KEEN | Keen News Service

Today’s argument in the U.S. Supreme Court over the Defense of Marriage Act sounded at times as if President Barack Obama was on trial for enforcing the law even though he considers it unconstitutional. At other times, it sounded like Congress was on trial, for attempting to cloak its moral disapproval of gay people under the guise of seeking “uniformity.” And at the end of two hours, LGBT legal activists seemed cautious but optimistic that there are five votes to find DOMA unconstitutional.

It was the second and final day of two historic sessions at the nation’s high court to hear oral arguments in cases challenging the federal law denying recognition of marriage licenses granted to same-sex couples — and challenging a state law banning same-sex couples from obtaining marriage licenses.

Wednesday’s case, U.S. v. Windsor, posed the question of whether Section 3 of DOMA violates the equal protection clause of the 14th Amendment. New York lesbian Edith Windsor filed the lawsuit with the help of the ACLU when the federal government demanded she pay more than $360,000 in estate taxes after her same-sex spouse died. Surviving spouses in male-female marriages do not have to pay estate taxes.

LGBT legal experts said after Wednesday’s arguments in the DOMA case that it’s likely the Supreme Court will strike down the law when it issues its ruling, expected sometime in late June.

“I think we’re going to win,” said Shannon Minter of the National Center for Lesbian Rights. “I think the court is going to reach the merits on this case and I think they’re going to say that DOMA violates the federal constitution, probably for equal protection reasons. … I do think DOMA is dead.”

The first 50 minutes of the two-hour argument was given to a discussion of whether the case was properly before the court, given procedural questions. On the issue of DOMA’s constitutionality, former George W. Bush Solicitor General Paul Clement, an attorney hired by the Republican-led Bipartisan Legal Advisory Group (BLAG), said the Congress, in passing the law in 1996, did not discriminate against gays but simply decided to define the term “marriage” “solely for federal law” in order to ensure “uniformity” in the deliverance of benefits.

“It’s rational for Congress to say it’s treating same-sex couples in New York the same as same-sex couples in Nebraska,” said Clement.

That assertion did not go unchallenged.

Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, and Ruth Bader Ginsburg all questioned Clement on it.

“What gives the federal government the right to be concerned at all about the definition of marriage?” asked Sotomayor, noting that marriage has always been considered an area of state law. She suggested members of Congress appeared to create a law to disfavor a “class they don’t like.”

When Clement suggested Congress was helping the states by putting the issue on “pause” and letting the states work through the democratic process in deciding the law in each state, Kennedy noted that DOMA seemed instead to be “helping states if they do what [members of Congress] want them to do.”

Justice Ginsburg said DOMA appears to affect same-sex couples by turning their marriages into a sort of “skim milk,” in comparison to whole milk version enjoyed by male-female couples.

Justice Kagan perhaps hit the hardest note when she said the record of House proceedings around DOMA in 1996 seemed to indicate Congress “had something else in mind than uniformity … something that’s never been done before.” She quoted a passage of the House report that said that DOMA was intended to express “moral disapproval” of marriage for same-sex couples.

“That’s a pretty good red flag,” said Kagan.

Clement seemed to be caught off guard by the excerpt. “Does the House Report say that?” he asked.

The challengers of DOMA appeared off guard at times, too.

Chief Justice John Roberts asked both Solicitor General Donald Verilli and plaintiff’s attorney Roberta Kaplan whether it would be permissible for Congress to adopt a definition for federal purposes that included gay couples, rather than excluded them.

Verilli said the House Report excerpt “makes glaringly clear” that DOMA was intended to exclude lawfully married same-sex couples.

“Are you saying that 84 senators were motivated by animus?” asked Chief Justice Roberts in follow-up to both Verilli and Kaplan.

Both Verilli and Kaplan clearly avoided saying that think DOMA was motivated by animus.

“It could have been a lack of reflection or an instinctive response,” said Verilli. But, he added emphatically, “Section 3 discriminates and it’s time for this court to recognize that discrimination cannot be reconciled with our fundamental commitment to equal protection of the law.”

But it was during questioning about the procedural matters that Roberts and other conservative justices hammered on what came across as much as a political jousting as it was a legal matter.

Roberts wondered why President Obama didn’t have “the courage of his convictions” that DOMA was unconstitutional and “instead, wait until the Supreme Court” rules it so.
Justice Samuel Alito said he thought it odd that President Obama would continue to enforce DOMA “until the court tells him to stop.”

Justice Breyer commented that the president has an “obligation” to faithfully execute the laws, whether he likes them or not.

Jon Davidson, legal director for Lambda Legal, said he was “very encouraged” by the argument.

“When it comes to the merits, I think there are at least five justices who are prepared to strike down Section 3 of DOMA,” he said. “One of the things that Justice Ginsburg said at the end, about the beginning of the sex discrimination cases, the court did strike down laws that discriminated based on sex based on rational basis, and saw it as discrimination.”

Mary Bonauto, head of civil rights for Gay & Lesbian Advocates & Defenders, said she thought the questioning was “vigorous” on the procedural issue of standing. On the issue of DOMA’s constitutionality, she said she thought Justice Kagan “called out” the discriminatory statement in the House report.

“Overall, they were asking the right questions and the right themes were in play,” said Bonauto.

Jenny Pizer, a Lambda Legal attorney who followed the case at the three-week trial in San Francisco, said she thought it was clear that the argument of “uniformity” made “no sense at all.”

“It was surprising to me the suggestion from some of the conservative justices that the administration should not enforce laws when they have questions about constitutionality or have a view of constitutionality different from previous administrations have said. That seems immensely impractical,” said Pizer.

“One thing that did seem clear yesterday and today,” said Pizer, “is that we’re witnessing a moment of recognition of anti-gay discrimination and the government trying to come to terms with how it should change. Perhaps we shouldn’t be that surprised that some justices are resistant to addressing the merits of question, but the justices are particularly well situated to address them.”

Yesterday’s argument was over the constitutionality of Proposition 8, California’s voter-approved ban on marriage licenses for same-sex couples. The court heard 80 minutes of argument in Hollingsworth v. Perry over whether it should find California’s ban on same-sex marriage unconstitutional.

In both cases, both sides see Justice Anthony Kennedy as the most likely justice to provide a fifth vote for the winning side. But Tuesday’s argument in the Proposition 8 case left many speculating that the court may decide that opponents of marriage quality did not have proper legal standing to appeal the case.

Legal standing was an issue in the Windsor case, too, because the Obama administration appealed the Second Circuit U.S. Court of Appeals ruling that DOMA violates the equal protection clause of the constitution. A party bringing an appeal must show it is injured by the lower court holding.

© Copyright 2013 by Keen News Service. All rights reserved.

Editor’s Note: The following is the fourth in a four-part series to prepare readers for what to expect March 26 and 27 when the U.S. Supreme Court takes up the marriage equality cases.

LISA KEEN | Keen News Service

Two of the LGBT civil rights movement’s most important cases come before the U.S. Supreme Court on Tuesday and Wednesday, March 26 and 27 and, regardless of the outcome, they will almost certainly be the most watched oral arguments ever on an LGBT issue.

A “United for Marriage” coalition of national and local LGBT groups have planned a number of events and rallies for the steps of the Supreme Court building and have organized buses from several cities to bring in participants. (CLICK HERE FOR INFO ON RALLIES IN NORTH TEXAS) The rallies are likely to enjoy a great deal of visibility on national TV screens, as the high court does not provide for any live camera or web broadcast of the arguments themselves.

There are only 400 seats in the courtroom, according to the public information office: 240 are for the public, 36 for journalists, and the rest (124) for guests of the justices and members of the Supreme Court bar. The court also provides a few more seats for journalists in an adjacent “hallway” with obstructed views of the courtroom, and it has 30 seats in the public section where visitors can watch for three to five minutes each before being rotated out.

Readers who are eager to absorb the arguments themselves but are unable to snare a courtside seat have two options: an audio recording and a transcript –both available at www.supremecourt.gov. (Click on “Oral argument” and choose either “Argument transcript” or “Argument recording.”) The public information office says both will be available by noon Dallas time on Tuesday and 1 Dallas time on Wednesday.

Some of the players are already well known to readers, some are not. Certainly, the key issues in the case have occupied a central focus for the LGBT community for many years now and the resolution of both cases are of enormous consequence to LGBT people throughout the country.

To help readers prep for the argument and the expected crush of media reporting on the cases, the following is a quick guide to the issues, the attorneys, and what to listen for:

Tuesday, March 26 at 10 a.m. EDT: Proposition 8:

Case name: Hollingsworth v. Perry (Case No. 12-144)

Issue in play: Whether the voters of California have a right to amend their state constitution to prevent same-sex couples from obtaining marriage licenses the same as male-female couples. A decision, if rendered, could potentially affect other states with such bans.

Question posed by the court: Whether Proposition 8 violates the equal protection clause of the Fourteenth Amendment. (The Fourteenth Amendment prohibits states from depriving any person of “the equal protection of the laws.”)

Additional question posed, on standing: Whether the Yes on 8 coalition that campaigned for passage of Proposition 8 has legal standing to appeal the lower court decision, given that California elected officials chose not to appeal.

Plaintiffs in the original lawsuit: Two California couples who seek the right to marry: Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank.

Petitioner bringing appeal: Dennis Hollingsworth is a former state senator from California who helped lead protectmarriage.com, a coalition of groups that established the Yes on 8 campaign. He and other officials brought the appeal after losing in the Ninth Circuit U.S. Court of Appeals.

Attorneys arguing merits and standing:

For Yes on 8 and for Proposition 8: Charles Cooper

For same-sex couples and against Proposition 8: Ted Olson

For the U.S. and against Proposition 8: Solicitor General Donald Verrilli

History behind the case: This dispute began more than 13 years ago, when voters first approved Proposition 22 to limit marriage to heterosexual couples only. That vote was challenged in state court and, the California Supreme Court ruled in 2008 that such a restriction violated the state constitution’s guarantee of equal protection. Opponents of allowing gays to marry came up with another initiative, Proposition 8, to amend the state constitution. Proposition 8 passed that same year, but supporters of same-sex couples, via the newly minted American Foundation for Equal Rights, filed suit in 2009 in federal court, saying the ban violated the equal protection rights of gays under the federal constitution.

The litigation made a major media splash at the time because AFER’s lead attorneys were former George W. Bush Solicitor General Ted Olson and renown liberal litigator David Boies. In the 2000 election, Olson and Boies had been opposing attorneys in the Supreme Court case deciding who won the 2000 presidential election. The AFER lawsuit also garnered considerable attention because much of the LGBT legal infrastructure was against it. But during a three-week trial in San Francisco federal court, the community came onboard and plaintiffs won. U.S. District Court Chief Judge Vaughn Walker (who came out as gay after retirement) issued a decision in August 2010, saying Proposition 8 violated the federal equal protection clause because there was no rational basis for limiting the designation of marriage to straight couples. He also said it violated the federal due process clause because there was no compelling reason for the state to deny same-sex couples the fundamental right to marry.

State officials in California chose not to appeal the decision, but the Yes on 8 coalition was allowed to do so (creating the question of legal standing). In February 2012, a three-judge panel of the Ninth Circuit U.S. Court of Appeals upheld Walker’s decision but on much more narrow grounds –it said the U.S. Supreme Court’s 1996 ruling in Romer v. Evans precluded voters from withdrawing the right to marry from same-sex couples in California. But the Supreme Court is asking for arguments on the broader question of whether Proposition 8 violates the constitutional right to equal protection.

Wednesday, March 27, 10 a.m. EDT: Defense of Marriage Act:

Case name: U.S. v. Windsor (Case No. 12-307)

Issue in play: Whether the federal government can deny to citizens who are legally married to a same-sex partner the same benefits it provides citizens who are legally married to an opposite sex partner. A General Accounting Office study in 2004 found that DOMA affects 1,138 federal statutory provisions of the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.

Question posed by the court: Whether Section 3 of DOMA violates the equal protection clause of the Fourteenth Amendment. The Fourteenth Amendment prohibits states from depriving any person of “the equal protection of the laws.”
Additional question posed, on standing: The Supreme Court has posed two questions: Whether the executive branch’s agreement with the Second Circuit decision in Windsor v. U.S. (that DOMA is unconstitutional) precludes the Supreme Court from ruling in the case, and whether the House Bipartisan Legal Advisory Group (BLAG) has standing to defend DOMA in court.

Plaintiff in the original lawsuit: Edith Windsor is the surviving spouse of Thea Spyer. The couple had been together for 40 years and married in Canada in 2007. Spyer died in 2009, before New York State allowed marriage licenses for same-sex couples. The U.S. Internal Revenue Service would not allow Windsor to take the routine marital estate tax deduction and, instead, demanded she pay more than $360,000 in taxes on the estate she shared with her spouse.

Petitioner bringing appeal: The U.S. brings the appeal to defend the administration’s obligation to enforce DOMA. But the real defender of DOMA in this case is a legal team hired by the Republican-led House legal office (aka BLAG).

Attorneys arguing standing:

At the invitation of the court, against standing: Vicki C. Jackson

For the U.S. and against standing: Deputy Solicitor General Sri Srinivasan

For BLAG and for standing: Paul Clement

Attorneys arguing merits:

For BLAG and for DOMA: Paul Clement

For the U.S. and against DOMA: Solicitor General Donald Verrilli

For plaintiff Windsor and against DOMA: Roberta Kaplan

History behind the case: The Windsor lawsuit is one of seven challenges with appeals pending before the Supreme Court against DOMA, the law approved by Congress in 1996 to head off what was then a burgeoning movement toward achieving equal rights to marriage. The law has two sections: Section 2 says that no state “shall be required” to recognize a marriage license to a same-sex couple granted by another state. Section 3 says that the federal government can give recognition to marriage licenses of male-female couples only. Section 3 is the only part of DOMA under contention in the lawsuits.

In December, the Supreme Court agreed to hear U.S. v. Windsor. The Windsor case was originally filed by the ACLU with the help of Windsor’s attorney, Roberta Kaplan at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison in New York, and Pamela Karlan, co-director of the Supreme Court Litigation Clinic at Stanford Law School. Karlan, who is openly gay, has been mentioned as a potential candidate for a Supreme Court nomination.

The Second Circuit of the U.S. Court of Appeals, the first federal appeals court to examine DOMA under heightened scrutiny, ruled last October that DOMA violates the equal protection clause of the constitution.

Defending DOMA is former George W. Bush Solicitor General Paul Clement, an attorney hired by the Republican-led Bipartisan Legal Advisory Group (BLAG). House Speaker John Boehner called for Clement’s help after directing BLAG’s General Counsel to begin defending DOMA in court after the Obama administration announced it believes the law to be unconstitutional. The Obama administration is obliged to enforce the law (hence the IRS demand that Windsor pay the taxes), but it has refused since February 2011 to defend the law as constitutional.

What to listen for in the arguments: In both cases, Justice Anthony Kennedy’s comments and questions will be watched with a great deal of interest. Kennedy wrote the opinion in Romer and in the 2003 Lawrence v. Texas decision striking down sodomy laws. Both sides consider him the key vote to sway in order to consolidate a five-vote majority.

The critical points in Kennedy’s decision in Romer were that Colorado Amendment 2, prohibiting laws that banned discrimination based on sexual orientation, had “the peculiar property of imposing a broad and undifferentiated disability on a single named group,” that “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus,” and that “it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.”

But Kennedy has been listing toward the conservative wing of the court recently, leading its dissent against President Obama’s Affordable Care Act and leading its majority ruling to allow corporations to contribute without limits to political campaign activities. And in a speech in Sacramento March 6, he told reporters he thinks it is a “serious problem” that the Supreme Court is being asked to settle controversial issues facing a democracy.

What to watch for on television: Because the court does not allow cameras in the courtroom, rallies outside the Supreme Court will almost certainly get considerable air time.

A “United for Marriage” coalition of national and local LGBT groups has planned events outside the Supreme Court building beginning Monday, March 25, with a “Youth Lights for Equality” candlelight vigil in front of the Supreme Court from 6:30 to 8 p.m. On Tuesday morning, at 7:15 a.m., there will be an interfaith “Prayer for Love & Justice” service, followed by a procession at 8:30 a.m. to the Supreme Court building. At 8:30 a.m. Tuesday, there will be a “United for Marriage Rally” on the steps of the Supreme Court. And on Tuesday evening, at 5:30, a “Parting of the Waters” seder.

The “United for Marriage Rally” will return at 8:30 a.m. on Wednesday on the front steps of the Supreme Court.

After the argument is over each day –shortly after 11 a.m. on Tuesday and after 11:50 a.m. on Wednesday, EDT– attorneys from both sides of the argument that day typically convene impromptu press conferences on the front steps of the Supreme Court. They express optimism about the outcome, compliment the justices for asking “good questions,” and explain the importance of the cases in short sound bites. One thing they don’t typically do is predict the outcome.

© Copyright 2013 by Keen News Service. All rights reserved.

…………………

PART I: Standing in the way: A look at the standing issues in both cases that could determine whether the court makes a decision or passes on either or both. (March 15)

PART II: President’s Punch: How strong a position has the Obama administration taken in both cases to push for the most decisive victory on marriage equality? (DallasVoice.com)

PART III: Friends and foes at the bar: What groups have lined up for marriage equality and which have lined up against? What have the gay legal groups submitted? (March 22)

SMU professor Bryan A. Garner, left, and U.S. Supreme Court Justice Antonin Scalia.

U.S. Supreme Court Justice Antonin Scalia will be at Southern Methodist University tonight to discuss his new book, Reading Law: The Interpretation of Legal Texts.

SMU professor and the book’s co-author Bryan A. Garner will join Scalia for the discussion.

It was during a similar lecture at Princeton University in December that Scalia was asked by a gay student about his anti-gay views and how he equates anti-sodomy laws to those banning murder. Scalia said he was drawing a moral parallel between the laws and legislative bodies should ban things viewed as immoral.

Scalia will also serve as a Distinguished Jurist-in-Residence at SMU Dedman School of Law Monday and Tuesday, where he will speak to several law classes.

The lecture begins at 7 p.m. at SMU’s McFarlin Auditorium. General admission tickets are $35. Tickets and a copy of the book are $50. Books will not be sold at the event, but Garner and Scalia will sign copies. To register, go here.

Texas state Sen. Wendy Davis

According Associated Press legal affairs reporter Mark Sherman (as quoted on the Fort Worth Star-Telegram’s blog, PoliTex), “The justices discussed moving the primary date back further to give the courts handling different aspects of the case more time. ‘Why can’t this all be pushed back, and wouldn’t that eliminate a lot of the problems we are grappling with in this case?’ Justice Samuel Alito asked.”

And TheHill.com indicates that justices were not happy with either the map drawn last year by the GOP-controlled Texas Legislature or with the interim map drawn last month by federal judges in San Antonio, quoting Chief Justice John Roberts as saying during today’s hearing, “How do you decide between two wrong choices?”

TheHill.com also said, “Most justices indicated they thought both maps were unacceptable and could not be put into law without violating the Voting Rights Act.”

The Legislature’s map favors Republicans, especially in Tarrant County where Democratic state Sen. Wendy Davis saw her district taken away, with portions of it allocated to more Republican-leaning areas north and south of Fort Worth.

That map was challenged in federal court by Democratic lawmakers, including Davis, and minority groups who claim that the voting power of Hispanics and other minorities were severely compromised by lawmakers’ map. The federal judges then issued a redrawn interim map that basically re-established Davis’ district and created a new Democratic-leaning congressional district in Tarrant County, among other changes.

State officials then appealed directly to the Supreme Court.

At the same time, the federal district court in Washington, D.C., is in the middle of hearing a separate case challenging the lawmakers’ map, with opponents claiming that map violates the Voting Rights Act. That court is not expected to reach a conclusion in time for Texas to hold primaries on April 3.

Officials with both political parties in North Texas have said they are at a standstill until some court somewhere reaches a decision.

“We’re waiting, just like everybody else,” said Jennifer Hall, interim chair of the Tarrant County Republican Party. Regardless of which map — either one of the two in question now or something completely different — is eventually used, Hall said, “It’s going to make a lot of work for us.”

And Darlene Ewing, chair of the Dallas County Democratic Party, said recently, “Right now, everything is in limbo, right down to the question of, ‘Do I even still live in my same precinct?’ It’s just crazy. We have a whole bunch of candidates who don’t even know if they legally reside in the districts where they have filed to run.”

Dallas County Republican Party Chair Wade Emmert said today that unless the courts settle the matter by mid-January, “we’ll have to push the primaries back again.”

The final outcome could impact which party controls both houses of Congress after this year’s election. And that could have serious consequences for the LGBT equality movement.

The ongoing battle has already affected the schedule for at least one LGBT political group: Stonewall Democrats of Dallas announced today that they have had to reschedule their endorsements screening session. The new date for the group’s endorsement screenings is Feb. 18, beginning at 9 a.m., in the Rainbow Room at Resource Center Dallas, 2701 Reagan St. To be eligible to vote on endorsements, individuals must be members in good standing, which means they must have all dues paid current by midnight on Jan. 19.