It appears that the arguments and questioning on DOMA during the SCOTUS hearing today have put the 17 year old law into question. As usual, SCOTUSBLOG has some great analysis of the arguments.
That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.
That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.
After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality. And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.
Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.
Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.
Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction. But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.
There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.
In discussing the origins of the law, Paul Clement, who represents the Bipartisan Legal Advisory Group, said that Congress’s key interest in passing DOMA was preserving the uniform treatment of couples in various states at a time when there where indications that some states might allow same-sex marriages.
“All these federal statutes were passed with the traditional definition of marriage in mind,” Clement said. “What Congress says is, ‘Let’s take a time out. This is a redefinition of an age-old tradition.’”
But Kagan fired back in her questioning, telling Clement that Congress wasn’t preserving tradition, but departing from it when it jumped into the marriage issue. “The only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state,” she said. Congress’ foray into the issue in 1996 was so unusual that it “sen[t] up a pretty good red flag,” she said.
A short time later, Kagan read aloud from the House Judiciary Committee report on DOMA. “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality,” she said, quoting the report.
“Is that what happened in 1996?” she asked to gasps, “oohs” and some laughter from many in the gallery who seemed to think she’d managed a rare Supreme Court “gotcha” moment.
Clement said he was not claiming moral disapproval constituted a sufficient basis for the law. “The House report says those things,” he said. But, he added, “we’ve never invoked [the report] in trying to defend the statute.”
The crowd outside the SCOTUS building got rowdy and into some fights. Other interesting analysis can be found on Slate. I loved this line by Ginsberg.
Justice Ruth Bader Ginsburg had the laugh line of the day when she scolded DOMA for creating “two kinds of marriage, full marriage and the skim-milk marriage.” It was easy to see which one you’d want in your coffee.
Please post more things you’ve found on the arguments today!
SCOTUS Justices Hinting They Will Avoid Issuing a Broad Ruling Legalizing or Banning Same-Sex MarriagePosted: March 26, 2013
This morning the Supreme Court held oral arguments on the challenge to California’s Proposition 8 ban on same-sex marriage. At Business Insider, Eric Fuchs writes:
The first of two huge Supreme Court cases on gay marriage may be heading for a partial victory for supporters of the movement.
“SCOTUS won’t uphold or strike down Prop 8,” SCOTUSblog’s Tom Goldstein predicted over twitter after the Tuesday hearing was over.
So what does that mean, and why would that be a partial victory for gay marriage advocates?
The hearing involved California’s voter-approved ban on gay marriage, known as Proposition 8, which was struck down by a federal judge and an appeals court. When California declined to defend the law, it was backed by a coalition of anti-gay marriage advocates and elevated to the Supreme Court.
The Supreme Court could decline to issue a ruling at all, however, by finding the anti-gay marriage advocates don’t have legal “standing” to defend the law.
If that happens, then the appeals court ruling would stand and gays could continue to get married in California.
You can listen to the oral arguments and/or read the transcript at The Washington Post.
I can’t say I’d be surprised if the justices punt this one. I know that the Scalia clique would love to ban same-sex marriage, but they probably couldn’t get the votes; and even if they did, they have to realize that the blowback from the public would be horrendous.
Some times people are so transparent that you wonder why you can’t literally see through them. Rob Portman’s conversion to a born gain PFLAG member just strikes me as a bit shallow. I’m not the only one who finds his sudden change of heart about marriage equality to be more about him than about actually recognizing that civil rights under the law should apply to every one. This bit is from Matt Ygleisas at Slate.
I’m glad that Sen. Rob Portman of Ohio has reconsidered his view on gay marriage upon realization that his son is gay, but I also find this particular window into moderation—memorably dubbed Miss America conservatism by Mark Schmitt—to be the most annoying form
Remember when Sarah Palin was running for vice president on a platform of tax cuts and reduced spending? But there was one form of domestic social spending she liked to champion? Spending on disabled children? Because she had a disabled child personally? Yet somehow her personal experience with disability didn’t lead her to any conclusions about the millions of mothers simply struggling to raise children in conditions of general poorness. Rob Portman doesn’t have a son with a pre-existing medical condition who’s locked out of the health insurance market. Rob Portman doesn’t have a son engaged in peasant agriculture whose livelihood is likely to be wiped out by climate change. Rob Portman doesn’t have a son who’ll be malnourished if SNAP benefits are cut. So Rob Portman doesn’t care.
It’s a great strength of the movement for gay political equality that lots of important and influential people happen to have gay children. That obviously does change people’s thinking. And good for them.
Why is it that some people only seem to do the seemingly right thing only when it impacts them?
Krugman has similar thoughts on the topic. Why is it these folks can’t empathize with situations involving other people’s children? Is it really that far of stretch to say his conversion is nice but hardly praiseworthy given the circumstance that he was a rigid homophobe until it impacted him?
But while enlightenment is good, wouldn’t it have been a lot more praiseworthy if he had shown some flexibility on the issue before he knew that his own family would benefit?
I’ve noticed this thing quite a lot in American life lately — this sort of cramped vision of altruism in which it’s considered perfectly acceptable to support only those causes that are directly good for you and yours. We even have a tendency to view it as “inauthentic” when people support policies that aren’t in their self-interest — when a rich man supports higher taxes on the rich, he’s somehow seen as strange, and probably a hypocrite.
Needless to say, this is all wrong. Political virtue consists in standing for what’s right, even — or indeed especially — when it doesn’t redound to your own benefit. Someone should ask Portman why he didn’t take a stand for, you know, other people’s children.
So, here’s another weird thing. All the folks talking about this particular angle seem to be in the economics business. Is it because we’re intrigued by what motivates people to choose one thing over any other thing?
I think we should have compassion for all peaceful people. Yglesias and I would express our compassion in pretty different ways: he would have a powerful government use force to grab people’s wealth and give it to others and I wouldn’t. But where we agree is that you shouldn’t have to wait until the state interferes with your peaceful son before you start advocating that the state not interfere with other people. So, for example, maybe Portman’s son doesn’t smoke marijuana or snort cocaine. But if he did, it would be admirable for Portman to come out in favor of legalizing marijuana and cocaine. It would be even more admirable if he came out in favor of legalizing them absent any evidence that his son uses them.
I guess we have to leave it to the psychologists to tell us why some people just don’t come around to the compassionate, wise, and just thing to do until it gores their ox. I wish I could be a bit more bottom-lined about this and just be glad there’s another vote out there for marriage equality. Still, the entire circumstance and now the media adoration pouring all over Portman just doesn’t have that fresh sanctified smell to me. It does seem that I may be suffering a symptom of my career choice which again, studies how people make choices.
This should be an interesting set of arguments to watch as SCOTUS will review both the California ban on gay marriage and potentially challenge DOMA. I’ve never quite figured out why the state has such a compelling interest in the domestic arrangements of individuals. I can’t see the world coming to an end if we extend the franchise or end it completely for that matter. It has traditionally been a transfer of property rights and legal rights and that’s just about the extent of it as far as I’m concerned. It used to be that women were part of the property transfer and thankfully, we’ve dropped the legal aspects of that. Any one that wants to share property rights and decision making with another person has only my best wishes for best of luck. I still refer to my 20 year marriage as the pilfering of my assets and personhood, but hey, I’m not bitter, am I? (Interesting that this happens on what would be my 37th wedding anniversary.)
The U.S. Supreme Court will take up the issue of gay marriage for the first time, agreeing to rule on a California ballot measure banning the practice and a federal law defining marriage as solely an opposite-sex union.
The cases, which the court will decide by June, loom as a potential turning point on one of the country’s most divisive issues. High court review comes as the gay-marriage movement is showing unprecedented momentum, winning victories at the polls in four states this year.
The California dispute will address whether gay marriage is legal in the most populous U.S. state, home to more than 37 million people. The case also gives the justices a chance to go much further and tackle the biggest issue: whether the Constitution guarantees same-sex marriage rights nationwide.
As usual, the justices did not offer any explanation of why they decided to take the cases. Oral arguments are expected in the spring, with a ruling to follow in the summer. The court traditionally holds its most important decisions until the last day of its term, sometime in June or July.
Justice Anthony Kennedy is seen as likely to side with the court’s liberal bloc on DOMA, but his views on Proposition 8 are harder to predict.
Striking down only DOMA, and leaving Proposition 8 intact, would not recognize a right to same-sex marriage, but would leave the issue to the states.
Several states have already begun to recognize same-sex marriage and the success of marriage-equality ballot measures on Election Day was seen as a watershed moment, as opponents of same-sex marriage had long argued that popular opinion was on their side.
In addition to the California case, the justices today said they will review the U.S. Defense of Marriage Act, a 1996 law that two federal appeals courts said impermissibly treats legally married gay couples differently than heterosexual couples. DOMA, as the measure is known, blocks gays from claiming the same federal tax breaks and other marriage benefits that opposite-sex spouses enjoy.
I certainly hope we can get pass the idea that what passed for marriage since the Victorian age is the be-all and end-all of frameworks. What we need to be interested in is a social and legal construct that best supports individuals and not some outdated notion from a Godey’s Lady book.
I just could not help myself, that cartoon was too dang funny.
I have some photo galleries to share with you in a bit, first let’s take a look at one of the news items from earlier today.
He was a rising star in Hungary’s far-right Jobbik Party, and was notorious for his incendiary anti-semitic comments – including attacks on the ‘Jewishness’ of the political elite; but Csanad Szegedi’s career as an ultra-nationalist standard bearer now looks to be over after the revelation that he is in fact Jewish.
Szegedi, who had in the past accused Jews of ‘buying up the country’, faced weeks of Internet rumours about his ancestry before acknowledging in June that his grandparents on his mother’s side were Jews.
It emerged that his grandfather was a forced labour camp veteran and that his grandmother was a survivor of the Auschwitz death camp.
Following the revelation the 30-year-old has been politically exiled from Jobbik, and his career has been left in ruins. He resigned from the party last month after concerted pressure.
Anyone who tells you that the Holocaust can never happen again is wrong.
After resigning from the Jobbik party last month Szegedi now faces pressure to give up his seat in the European Parliament as well.
Jobbik claims its issue with Szegedi is the alleged bribery, rather than his Jewish roots.
Szegedi came to prominence as a founder member of the Hungarian Guard. The group formed in 2007 wore black uniforms and striped flags recalling the Arrow Cross, a pro-Nazi party which governed Hungary at the end of World War II and killed thousands of Jews.
In all, 550,000 Hungarian Jews were killed during the Holocaust, most of them after being sent in trains to death camps like Auschwitz.
The Hungarian Guard was banned by the courts in 2009 but Szegedi had allegedly already joined Jobbik party, which was launched in 2003. Jobbik quickly rose to become the biggest far-right political force in Hungary.
And to think this kind of stuff is going on here in the US as well. It isn’t just Jews, but any ethnic or cultural group, LGBTs or Women, or non-christian religion, that the far right wing can manipulate to their kind of anti platform.
Case in point:
Well, you get where I’m coming from….
There is a quote from the book Origins of Totalitarianism, written by Hannah Arendt that I want to bring into the discussion. I would like your view on it…*
Friedrich Engels once remarked that the protagonist of the antisemitic movement of his him were noblemen, and its chorus the howling mob of the petty bourgeoisie. This is true not only for Germany, but also for Austria’s Christian Socialism and France’s Anti-Dreyfusards. In all these cases, the aristocracy, in a desperate last struggle, tried to ally itself with the conservative forces of the churches-the Catholic Church in Austria and France, the Protestant Church in Germany-under the pretext of fighting liberalism with the weapons of Christianity. The mob was only a means to strengthen their position, to give their voices a greater resonance. Obviously they neither could nor wanted to organize the mob, and would dismiss it once their aim was achieved. But they discovered that antisemitic slogans were highly effective in mobilizing large strata of the population.
Now, think about that for a minute, and then take a look at these pictures:
They sure look happy to see each other don’t they?
Well, at least we ended this post on a loving note. Love Your Brother? Yes….I think we should.
*Arendt, Hannah, Origins of Totalitarianism The Nation-State; The birth of Antisemitism, Harcourt Books, 1994. Original Published 1951. (37–38)