Defense of Marriage Act

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Gay rights and the Supremes

Justice Antonin Scalia has made it clear that he is, at best, uncomfortable with the series of decisions made by the Supreme Court on gay rights.  Soon after the decisions last June on DOMA and Prop 8,  Asawin Suebaeug wrote an article for Mother Jones in which the best and worst parts of his dissents were highlighted. 

Justice Antonin Scalia is not a big fan of gay sex, gay marriage, or gay anything. His dissent to Wednesday’s decision on United States v. Windsor, in which the Supreme Court ruled, 5-4, that legally married same-sex couples should get the same federal benefits as straight ones, shows as much. (The high court’s ruling invalidates a provision of the Defense of Marriage Act that barred same-sex couples from receiving health, tax, and retirement benefits.) In a nutshell, Scalia’s dissent focuses on the court’s prime purpose and power, and he is aghast that the majority assumed the power to shoot down DOMA. (To read the seven worst things Scalia has said or written about homosexuality, click here.)

And Andy Borowitz has made a cottage industry out of zinging him including “Scalia Arrested Trying to Burn Down the Supreme Court”.

WASHINGTON (The Borowitz Report)—In a shocking end to an illustrious legal career, police arrested Justice Antonin Scalia today as he attempted to set the Supreme Court building ablaze.

Justice Scalia, who had seemed calm and composed during the announcement of two major rulings this morning, was spotted by police minutes later outside the building, carrying a book of matches and a gallon of kerosene.

…

Back at the Supreme Court, Justice Scalia’s colleagues said they hoped he would get the help he needed, except for Justice Clarence Thomas, who said nothing.

Meanwhile  Justice Ruth Bader Ginsburg celebrated the marriage of a long time friend to another man while Justice Anthony Kennedy who wrote the decision on DOMA is being celebrated himself.

Justice Kennedy was a guest at an event in San Francisco featuring the Gay Men’s Chorus and speeches thanking him for his DOMA decision as well as his two previous decisions expanding gay rights.  The New York Times reported

The San Francisco Gay Men’s Chorus sang “Give ’Em Hope” for a revered and in some ways surprising guest who shared a California stage with them last month: Justice Anthony M. Kennedy.

Justice Kennedy was in San Francisco for an American Bar Association meeting, but he was also there to be celebrated by the men on the risers behind him. In remarks from the stage, San Francisco’s mayor, Edwin M. Lee, thanked the justice “for upholding the Constitution and justice for all” in his majority opinion in June in United States v. Windsor, a major gay rights victory.

“Freedom is always a work in progress,” Justice Kennedy said in his own remarks, making clear that there was more work to be done.

Justice Ginsburg performs an historic marriage ceremony.

Justice Ginsburg performs an historic marriage ceremony.

justice Ginsburg became the first Supreme to officiate at a gay wedding.

Ginsburg officiated Saturday at the marriage of Kennedy Center President Michael Kaiser and John Roberts, a government economist.

“Michael Kaiser is a friend and someone I much admire,” Ginsburg said in a written statement Friday. “That is why I am officiating at his wedding.”

…

“I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship,” Ginsburg told The Washington Post in an interview.

“It won’t be long before there will be another” performed by a justice. She has another ceremony planned for September.

Kaiser told The Associated Press that he asked Ginsburg to officiate because she is a longtime friend.

So at least two, and if we take Justice Ginsburg at her word, three Supreme Court Justices moving forward with the times.

Has anyone else noted that one of those getting married was John Roberts?  Wonder what the Chief Justice thinks about that?
Photograph:  Margo Schulman/Kennedy Center
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A question for the Chief Justice

So, Mr. Chief Justice, where did you say you went to law school?  That’s what I want to ask Mr. Roberts after yesterday’s hearing on The Defense of Marriage Act or DOMA.

Here is the relevant exchange as reported by the New York Times.

He expressed irritation that the case was before the court, saying President Obama’s approach — to enforce the law but not defend it — was a contradiction.

“I don’t see why he doesn’t have the courage of his convictions,” the chief justice said. He said Mr. Obama should have stopped enforcing a statute he viewed as unconstitutional “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’ ”

The White House took umbrage at the remark and said the president was upholding his constitutional duty to execute the laws until the Supreme Court rules otherwise. “There is a responsibility that the administration has to enforce laws that are on the books,” said Josh Earnest, a deputy White House press secretary. “And we’ll do that even for laws that we disagree with, including the Defense of Marriage Act.”

The Chief Justice should know that the President has to enforce laws until they are declared unconstitutional by a court.  Thus my question.

The situation, however, is a little bit more complicated.  NPR explains it this way.

Has the Obama administration abrogated its responsibility by continuing to enforce DOMA, while refusing to defend it in court?

Justice Antonin Scalia: “And I’m wondering if we’re living in this new world where the attorney general can simply decide, ‘Yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.’ If we’re in this new world, I — I don’t want these cases like this to come before this court all the time. And I think they will come all the time if that’s … the new regime in the Justice Department that we’re dealing with.”

Deputy U.S. Solicitor General Sri Srinivasan: “Justice Scalia, one recognized situation in which an act of Congress won’t be defended in court is when the president makes a determination that the act is unconstitutional. That’s what happened here. The president made an accountable legal determination that this act of Congress is unconstitutional.”

Paul Clement, lawyer for GOP House leadership in defense of DOMA: “The House’s single most important prerogative, which is to pass legislation and have that legislation, if it’s going to be repealed, only be repealed through a process where the House gets to fully participate.”

Justice Kennedy: “Suppose that constitutional scholars have grave doubts about the practice of the president signing a bill but saying that he thinks it’s unconstitutional — what do you call it, signing statements or something like that? It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice because if the president thinks the law is unconstitutional, he shouldn’t sign it, according to some view. And that’s a lot like what you’re arguing here. It’s very troubling.”

Deputy U.S. Solicitor General Sri Srinivasan: “But my point is simply that when the president makes a determination that a statute is unconstitutional, it can follow that the Department of Justice won’t defend it in litigation.”

What should a President do in a situation like this one?  Does he just continue to enforce the law while trying to get Congress to repeal it as Paul Clement seems to argue.  Or does he do what he did:  say he thought the law was unconstitutional while both appealing and enforcing it.  I suppose that he could have issued an executive order to the IRS to accept joint tax returns from all legally married couples but that would have created an even bigger uproar that going to the Supreme Court.

My point, Mr. Chief Justice, is that yes, this may be an unprecedented situation, but the job of the Supreme Court and therefore your job is to make the ultimate decision on Constitutionality.  So just do your job.  And by the way, where did you go to law school?

Edith Windsor, the plaintiff in the DOMA case,

Edith Windsor, the plaintiff in the DOMA case.

Photograph Christopher Gregory/The New York Times

 

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The Supremes and Gay Marriage

There were wonderful thing said by some of the Justices today, but I want to concentrate on the cartoons.  Here are three from the Washington Post.

First Pat Oliphant.

Oliphant 3-26-2013

I love the duck in the corner reminding everyone that this is the same court that gave us corporations as people.

Moving on to Tom Toles.

Toles 3-26-2013

And finally Nick Anderson.

Anderson 3-26-2013

Do we have to say more?

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The Supremes and getting married

Marriage is several things.  It is a contract between two people recognized by the state and it is a spiritual and, for some, a religious bond.  When my parents were married in a Buddhist ceremony, one of their friends, a Jewish lawyer, is alleged to have said in a stage whisper, “It doesn’t matter what ritual is used, it’s still just a contract.”  I wish I had thought to ask him about this when I became an adult, but true or not it makes a nice story.

Yes, same sex couples can live together and in some places they can have a recognized civil union which may provide some benefits, but it is not the same as being married.  I can tell you from personal experience that they create very different states of mind.  Being married provides a level of comfort and security just living together does not.  And part of this comes from marriage being a contract.  Yes, all types of relationships fail and they fail for as many reasons as there are failures, but marriages are more difficult to sever therefore can provide more of a base on which a relationship can grow.

I’ve been writing about gay marriage as states are added to the list and I’ve been watching the attitude of the country toward gay marriage change.  Chris Cillizza posted two helpful charts on his Washington Post blog, the Fix.

Pretty amazing change is a relatively short period of time.  And Democrats have gone from not wanting to touch the issue to running for office supporting gay marriage in the space of one presidential election cycle.  This change was reflected at the ballot box.  I am happy that Washington State, Maryland, and Maine voted to legalize same sex marriage, but I still have this voice in the back of my head that says equal rights are not something that should be determined by a majority vote.

The Boston Globe reported

Last month, Washington, Maine, and Maryland became the first states to pass same-sex marriage by popular vote. They joined six other states — New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont — and the District of Columbia that had already enacted laws or issued court rulings permitting same-sex marriage.

And now the Supreme Court will be ruling on the issue.  The New York Times explains

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.

The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The California case was brought by the two lawyers who were on opposing sides in the infamous, Bush v. Gore case, Ted Olson and David Boies.  The second case is one of several that challenged the Defense of Marriage Act or DOMA.  It is interesting that the Massachusetts case is not the one being heard.

There was reason to think that Justice Elena Kagan was not free to hear an appeal from the Boston case because she had worked on it or a related case as United States solicitor general. The current solicitor general, Donald B. Verrilli Jr., gave the court a number of other options, including Windsor, probably partly to make sure that a case of such importance could be heard by a full nine-member court.

Edith Windsor of New York sued to be treated as a surviving spouse

The Obama Administration is not defending DOMA.

Chris Cillizza ended his post with this thought.

Go deeper into the Pew numbers — and thanks to Pew, you can! —  and you see why those trend lines won’t be reversing themselves.  In 2011-2012, 62 percent of people 18-29 supported gay marriage — by far the strongest support among any age group. During that same time period, just 32 percent of those 65 or older supported gay marriage.

The simple truth: Support for gay marriage tracks directly with age. The younger you are, the more likely you are to support it. Given that, it’s hard to imagine gay marriage getting less popular as the years go on.

Whatever the Supreme Court does with its two gay marriage cases next year, the die has been cast on the politics of the issue. By the 2016 presidential election, this could well be a decided issue that neither party — yes, that includes Republicans — spends much time talking about.

My guess is that the Supreme Court will overturn DOMA and rule that states can allow gay marriage if they want.  We will see in a few months if I’m right.

Photograph – Chester Higgins Jr./The New York Times

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Taxes and Gay Marriage

I wrote about a lawsuit filed in Massachusetts to end the Defense of  Marriage Act back in March and yesterday Ellen Goodman published a good piece about why this is important.  Titled “A Strange Duel Citizenship”, Goodman writes

THEY ARE NOT the only married couple in America who talk about taxes and ulcers in the same sentence. Nor are they the only couple who believe they are paying more than they should. On that ground they are part of a noisy majority.

But they are a couple for whom tax season also entails an identity crisis. You see, Melba Abreu and Beatrice Hernandez file state taxes as what they are – a legally married Massachusetts couple. But under federal law, they have to file federal taxes as what they aren’t – two single women.

This identity crisis is not just some psychological blip on the cheerful landscape of their family life. In the last four years, the government’s refusal to consider them a married couple has cost the writer and the CFO of a nonprofit about $5,000 a year. As Beatrice puts it, “We don’t know anyone for whom $20,000 and counting isn’t significant.”

This is not about forcing states to choose to marry people.  It is about the simple act of recognizing legal marriages in other states.  It is not different from my straight marriage being recognized in Massachusetts even though I got married in Virginia.  Goodman concludes

So what do you say about an out-of-date law that enforces an identity crisis? What do you say about a law that “defends” marriage by denying it? The winds are blowing, but in a very different direction.

Amendment to this post

When I wrote this on Saturday morning, I hadn’t seen Stephen Colbert’s video mocking the anti-gay marriage ad – which he describes as combining the 700 Club and the Weather Channel.  Take a look.