GUEST BLOG: Breathtaking victories for the LGBT movement

By Clifford J. Rosky
Associate Professor of Law
University of Utah's S.J. Quinney College of Law

Yesterday morning, the Supreme Court brought an end to the federal Defense of Marriage Act and California’s Proposition 8.  In United States v. Windsor, the Court held that DOMA violates the liberty and equality protections afforded by the Fifth Amendment.  In Hollingsworth v. Perry, the Court held that the sponsors of Prop 8 did not have legal standing to defend the law.  Before long, same-sex couples will once again be marrying in California.  In addition, the federal government will now grant equal rights and responsibilities to same-sex couples married in California, and in any of the other 12 states and the District of Columbia where same-sex marriage is already recognized.

By any measure, today’s rulings represent a pair of breathtaking victories for the LGBT movement.  As Professor Suzanne Goldberg observed in her earlier post, DOMA and Prop 8 were the country’s most prominent antigay laws.  Both Prop 8 and the heart of DOMA are now dead and gone, and in the grand scheme of things, this turnaround seems improbably quick.  In 1996, Congress passed DOMA by overwhelming margins, and the bill was signed into law by President Clinton in the wake of a national backlash against the possibility of same-sex marriage in Hawaii.  In 2008, California voters passed Prop 8 by a narrower margin, overturning a state court ruling that had legalized same-sex marriage in California.

Putting aside the legal analysis of today’s rulings for a moment, the impact of the two judgments on the everyday life of LGBT people is profound.  Federal law grants more than 1,000 benefits to married couples, and more than 100,000 same-sex couples are legally married.  With the demise of Prop 8, 30 percent of the country lives in a state where same-sex marriage is legal.

More than anything else, this is how progress happens—in the interactions of everyday life.  People meet same-sex couples as neighbors, coworkers, and friends, and they realize that our differences don’t need to divide us.  A study conducted by the Williams Institute estimates that in the next three years, 37,000 same-sex couples will marry in California, and the state’s economy will gain nearly $500 million in new revenues.  That’s a tremendous number of family and friends, not to mention photographers and caterers.  By experience, people will learn that the sky does not fall at same-sex weddings—and sadly, the cake tastes no better.

Legally speaking, however, the Perry ruling is not likely to significantly influence the push for marriage equality in other states.  Because the Court held that the sponsors of Prop 8 did not have standing to defend the law, it did not address the question on everyone’s mind—whether other state laws that ban same-sex couples from marrying are constitutional.

In Windsor, however, Justice Kennedy sent strong signals that the answer is no—that sooner or later, the Supreme Court will rule that all laws against same-sex marriage are unconstitutional.  In remarkably direct terms, Justice Kennedy wrote that “DOMA writes inequality into the entire United States Code,” because “it tells [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  In intensely personal language, he concluded that DOMA “demeans” same-sex couples, “[a]nd it humiliates tens of thousands of children now being raised by same-sex couples.”  As if that were not enough, he added that “DOMA also brings financial harm to children of same-sex couples” by raising “the cost of health care for families” and denying “benefits allowed to families upon the loss of a spouse and parent.”

Above all, Justice Kennedy’s references to children embody the LGBT movement’s incredible progress during the last several decades.  Since the 1970s, opponents have repeatedly claimed that same-sex marriage is “harmful to children,” because “every child needs a mother and a father.”  In today’s ruling, the contrast between then and now could not be any clearer: Now it is not gay couples but Congress – Congress! – that is “humiliating” and “harming” kids.  In his dissent, Justice Scalia frankly admitted that this passage of Windsor was the handwriting on the wall.  In an unusual move, he demonstrated how the Court’s opinion could easily be tweaked – by inserting “this state’s law” in place of “DOMA” – to strike down all of the country’s remaining laws against same-sex marriage.

I have to admit, all of this language in Windsor came as a pleasant surprise to me.  Like many pundits, I predicted that the Court would issue a divided opinion on DOMA – or alternatively, a 5-4 decision striking down the law as a violation of states’ rights, rather than as a violation of due process or equal protection principles.  Like others, I based my predictions on Justice Kennedy’s remarks during oral argument.

>>Hear excerpts from the oral argument

During oral argument, Justice Kennedy had argued forcefully that DOMA improperly “intertwined” the federal government “with the citizens’ day to day life,” because it applied to “over 1,100 laws.”  As a result, he reasoned, the law was “at real risk of running into conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

When the Solicitor General claimed that DOMA violated equal protection principles, Justice Kennedy seemed to rebuff him, by suggesting that the issue of states’ rights took precedence over the issue of equal protection: “But you're – you are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?”

In today’s ruling, however, this framework was flipped: The Court struck down DOMA as a violation of equal protection, without resolving whether it was a violation of states’ rights.  Although Justice Kennedy spent several pages suggesting that marriage was traditionally regulated by states, he explicitly refused to invalidate DOMA on this ground: “Despite these considerations,” he explained, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”

Of course, it’s impossible to know exactly what happened behind the scenes in these cases – whether Justice Kennedy was only playing devil’s advocate at oral argument, or whether he changed his view later, in response to a give-and-take with one or more of his colleagues.  Playing Sherlock, it’s tempting to guess that he started out by writing an opinion striking down DOMA as a violation of states’ rights, but found himself alone on the Court in this view.  During oral argument, Justice Kagan suggested that DOMA’s unprecedented intrusion into the domain of marriage may be “relevant to the equal protection inquiry,” which is precisely what Justice Kennedy ended up saying in today’s ruling.  To garner a majority of the Court, Justice Kennedy may have been compelled to switch horses, and reach the question about equal protection that he would have preferred to avoid.

In any event, whatever happened during the Court’s deliberations, this subtle shift from states’ rights to equal protection represents a major turning point in the struggle for LGBT rights.  After Windsor, marriage equality is closer than ever, and full equality under the law cannot be far behind.

>> Read AFJ's response to the marriage equality victories
>> Read more about marriage equality.

Clifford J. Rosky is an Associate Professor of Law at the University of Utah's S.J. Quinney College of Law. Read Prof. Rosky's previous post on the marriage equality cases.

From SCOTUSblog: A one-two punch to the nation’s most prominent antigay laws

Prof. Suzanne Goldberg, who analyzed the marriage equality cases for Justice Watch when they were argued before the Supreme Court, has now analyzed the decisions for SCOTUSblog:

The late Dr. Thea Spyer and her wife,
Edith Windsor, who won her case today.

The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

Yet reaching this conclusion was not a constitutional stretch. ...

Read the full post at SCOTUSblog
Read AFJ's response to the decisions

Good decisions on marriage equality, bad decision on Voting Rights Act leave America part equal and part unequal

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decisions in United States v. Windsor and Hollingsworth v. Perry:

AFJ President Nan Aron speaks
at a rally in support of marriage equality
when the cases were argued in March

We strongly applaud the decisions in United States v. Windsor and Hollingsworth v. Perry and look forward to the implementation of marriage equality in California and to the application of full federal rights to all same-sex married couples nationwide. This is a great day, not only for LGBT Americans, but also for all who cherish the fundamental principle of equal justice for all.

We are mindful, though, that although today the arc of history bent a little more toward justice,  there still is a long way to go.  This week’s conflicting decisions by the Supreme Court on marriage equality and voting rights are at once profoundly hopeful and deeply disappointing.

Even as we celebrate today’s victories, we are appalled, but not surprised that the Court in Shelby County V. Holder has cut the heart out of the Voting Rights Act, one of America’s most important civil rights statutes. This week, the Court majority willfully turned its back on the hard-won promise of equality, based on the delusion that the quest for racial equality is over.

Taking these cases together, we are concerned that this Court, by moving in opposite directions simultaneously, has once again left the nation part equal and part unequal.  Regrettably, this Supreme Court majority has seen fit to give with one hand, while taking with the other. The struggle for a full measure of justice for every American must continue in our own time, as it has since our nation’s founding. As Fannie Lou Hamer said so well, “Nobody’s free until everybody’s free.”

Read More:
● AFJ Audio Analysis of the marriage equality cases.
● Read more about marriage equality.
●Videos from AFJ’s luncheon celebrating marriage equality victories in the states.
● Video: AFJ President Nan Aron’s call for marriage equality during a rally at the Supreme Court in March.
● AFJ Audio Analysis of the Voting Rights Act case.
● Read more about the Voting Rights Act.

From AFJ's Bolder Advocacy Initiative: How they did it: The 2012 marriage equality campaigns

          “We don’t do this enough…Get together to celebrate victories,” said Human Rights Campaign’s National Field Director Marty Rouse in opening the recent event they cosponsored with Alliance for Justice. In late May we brought the leaders of the 2012 marriage equality campaigns together to talk about their historic victories. Moderated by AFJ Executive Vice President Marissa Brown, the discussion offered many lessons for groups pursuing their own advocacy efforts–whether for marriage equality or other social justice causes.

          And as Marty said, “While 2012 was a wonderful, wonderful success, there is still a lot of work to do.” We hope the experiences shared by the seasoned advocates on our panel will inform and inspire future campaigns. ...

Read the full post - and see the video of this event - at AFJ's Bolder Advocacy Blog

The Justice doth protest too much

You can listen to the comments from Justice Scalia described in this post here:



Just before the Supreme Court heard oral arguments in two marriage equality cases, New York Times Editorial Writer Dorothy Samuels wrote that

there are two questions preoccupying legal writers: How will Justice Anthony Kennedy, the court’s wild card, vote, and how will Justice Antonin Scalia behave? … Can Justice Scalia hold his ego and intemperance in check for the two hour and 50 minute duration of the two marriage argumentss? 

Justice Scalia did seem to choose his words more carefully than he has in some other recent cases – perhaps because he knows that, as Samuels wrote, his increasingly intemperate remarks both on the bench and off are raising questions about whether he should recuse himself from cases like these.

But that didn’t stop Scalia both from getting distorting reality and straining credulity.

It happened during oral argument on Hollingsworth v. Perry, the case challenging Proposition 8, which bans same-sex marriage in California.  Charles Cooper, counsel for supporters of Proposition 8, was struggling to name any actual harm caused by same-sex marriage.  So Justice Scalia tried to help him out, declaring:  

Justice Antonin Scalia

I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -­ there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. … I take no position on whether [same-sex marriage is] harmful or not, but it is certainly true that -- that there's no scientific answer to that question at this point in time.

Scalia is wrong.  As Prof. Clifford Rosky pointed out in his guest post to this blog: 

we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.

 Indeed, after a four-year review of the scientific literature, the American Academy of Pediatrics declared its support for same-sex marriage.  But what do pediatricians know about children anyway?  It’s the sociologists who count, right?

But, as Ezra Klein notes in The Washington Post, the American Sociological Association also strongly supports same-sex marriage.  The organization said so in an amicus brief filed in this very case.  The brief notes that 

The claim that same-sex parents produce less positive child outcomes than opposite-sex parents—either because such families lack both a male and female parent or because both parents are not the biological parents of their children—contradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

Perhaps even more striking was Justice Scalia’s claim that he takes “no position” on whether same-sex marriage is harmful.

We’ve previously noted this Huffington Post story which points out: 

In his dissent in a 1996 Supreme Court decision overturning a voter-approved, anti-gay referendum in Colorado, Scalia wrote in support of the voter majority, "I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy or cruelty to animals -- and could exhibit even 'animus' toward such conduct." And in 2003, after the Supreme Court negated a law in Texas that had criminalized same-sex "sodomy," Scalia wrote in dissent, "The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable' -- the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity."

 Justice Scalia has an interesting definition of “takes no position.”

AFJ's Nan Aron at today's rally for marriage equality at the Supreme Court

As the Supreme Court heard oral arguments concerning the so-called Defense of Marriage Act, Alliance for Justice President Nan Aron was among the speakers at a rally outside the Supreme Court:

There's much more, including the text of Nan's remarks, at www.afj.org

Making history at the Supreme Court

This week, the Supreme Court hears two cases in which the stakes couldn’t be higher.  The question: Who can get married?

The late Dr. Thea Spyer and Edith Windsor

AFJ is playing a lead role in the fight for marriage equality.

Today: We’re asking you to show your support for marriage equality by signing our “thank-you card” to Edith Windsor who, at age 83 has taken her challenge to the so-called defense of Marriage Act all the way to the Supreme Court.

● Sign the card 

● Read more about Edith Windsor

Tomorrow and Wednesday: Join us outside the Supreme Court for rallies in support of marriage equality.  And if you’re not in Washington, take part in one of more than 160 events across the country.

● Find out more about how you can support marriage equality.

Tomorrow: As the Supreme Court hears Hollingsworth v. Perry, a challenge to California’s Proposition 8, we’ll analyze the oral arguments – using excerpts from Supreme Court audio.  It’s all part of our new AFJ Audio Analysis project.  Click here Tuesday afternoon to become an “ear-witness to history.”  And check back here at Justice Watch for additional commentary from leading legal scholars.

Wednesday: AFJ President Nan Aron speaks at the rally outside the Supreme Court supporting marriage equality.  We’ll have video at www.afj.org

Wednesday: Our Audio Analysis project continues with analysis of the arguments in United States v. Windsor, the case challenging DOMA.

Check www.afj.org for the latest updates.

Perhaps it depends on the definition of “views”

During a discussion at Southern Methodist University, Supreme Court Justice Antonin Scalia maintained that “I haven’t expressed my views” on gay marriage or gun control.

But, as The Huffington Post points out:

In his dissent in a 1996 Supreme Court decision overturning a voter-approved, anti-gay referendum in Colorado, Scalia wrote in support of the voter majority, "I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy or cruelty to animals -- and could exhibit even 'animus' toward such conduct."

And in 2003, after the Supreme Court negated a law in Texas that had criminalized same-sex "sodomy," Scalia wrote in dissent, "The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable' -- the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity."

So, is Antonin Scalia against gay marriage? You might well think that.  He couldn’t possibly comment.

AFJ's Nan Aron on today's Supreme Court actions on DOMA and Prop. 8

Supreme Court can bend the arc of history toward justice

WASHINGTON, D.C.,  Dec. 7, 2012: — Alliance for Justice President Nan Aron issued the following statement concerning the Supreme Court’s decision Friday to hear cases on the so-called Defense of Marriage Act and on California’s Proposition 8.

Today, the U.S. Supreme Court has decided to hear a group of cases in which the stakes could not be higher.  If the Court strikes down Section 3 of the so-called Defense of Marriage Act (DOMA), it will make millions of legally-married same-sex couples truly equal in the eyes of the federal government.  It will do the same for same-sex couples who want to marry in the future.

A ruling against Section 3 would send an important message: The nation’s highest court refuses to countenance discrimination.  But it also would have immediate, concrete benefits.

            A ruling against Section 3 will ensure married same-sex couples enjoy equal access to a huge range of benefits that the rest of us take for granted.  DOMA denies Social Security death benefits, spousal disability benefits and survivor benefits to same-sex spouses.  DOMA prevents same-sex spouses from taking family medical leave.  DOMA even can separate spouses of different nationalities. 

The stakes are every bit as high in the case involving California’s Proposition 8.  If the Supreme Court upholds the 9^th Circuit Court of Appeals ruling that Proposition 8 is unconstitutional, it will restore the right to marry for same-sex couples in California and, perhaps, send an important signal to the rest of the nation.  It would be a decision for family values in the truest sense of the term.

                The last time the U.S. Supreme Court ruled on who can get married, it bent the arc of history toward justice, ruling that banning interracial marriage is unconstitutional.  Now the Court has the opportunity to bend the arc of history toward justice again, by ruling Section 3 of DOMA unconstitutional. 

                In 1835 Alexis de Tocqueville wrote that, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”  In a nation in which not just political, but the most fundamental human questions can become judicial questions, today’s actions highlight once again the critical importance to American life of who sits on the United States Supreme Court.

For more on DOMA check out this excerpt from last night's AFJ-sponsored discussion in New York.

SCOTUSblog's Tom Goldstein on history-in-the-making

Tom Goldstein

[UPDATE 3:40 p.m.: SCOTUSBlog reports that the Court took no action on these cases at today's conference.  The next opportunity for the Court to issue orders will be at 9:30 a.m. Monday.]

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

Read his full post here.

Check out AFJ’s guide to the cases here.

Why Judges matter: Is DOMA really doomed?

Responding to the decision by a second federal appellate court that the so-called Defense of Marriage Act is unconstitutional, a decision discussed in detail in the previous post to this Blog, Washington Post editorial writer Jonathan Capehart wrote a column headlined “DOMA is doomed.”

DOMA defines marriage as only between a man and a woman.  Its practical effect is to deny married gay couples the same federal benefits as other married couples, such as federal employee health benefits for spouses and Social Security survivor benefits.  As Capehart wrote: “It’s flat-out discrimination.”

But does that necessarily mean it’s doomed?  We certainly hope so.  But, as the distinguished legal scholar Stephen Colbert put it in discussing another discrimination case: “It’s the time of year again when skeletal figures shrouded in black fill your mind with fear – because the Supreme Court is in session.”

Seriously – the place where past generations turned to right wrongs and end discrimination now is a place that all advocates for equality must view with trepidation.

The court is expected to decide next month whether to hear appeals from the decisions on DOMA.  It also may hear an appeal from a 9^th Circuit Court of Appeals decision striking down Proposition 8, the voter-approved referendum that banned gay marriage in California.

On the one hand, Justice Antonin Scalia’s recent contemptuous dismissal of gay rights should add to the fear factor.  On the other hand, Justice Anthony Kennedy, often seen as the court’s swing vote, has shown some sympathy toward gay rights.

The President of the Human Rights Campaign, Chad Griffin, told Capehart: “We are at a monumental tipping point as the Supreme Court stands poised to review a law that has resulted in treating gays and lesbians as second-class citizens.”

The question is: Which way will the Supreme Court tip?

There is more than one way to end DOMA

Cert petitions have been submitted to the Supreme Court in three separate cases that call into question the constitutionality of the Defense of Marriage Act (DOMA), a law that denies economic and other benefits to same-sex couples even in states where same-sex marriage is legal.  If the Court decides to hear one or more of them, its ruling could both determine the constitutionality of DOMA and could set a standard for how courts evaluate laws that discriminate against people on the basis of sexual orientation.

Several federal courts have also found DOMA to be unconstitutional, including the U.S. District Court for the Northern District of California and the U.S. Court of Appeals for the First Circuit.  Each of these courts has applied a different level of review to determine whether the law can stand. 

The California decision applied the strictest “heightened scrutiny” test to the statute.  Heightened scrutiny is applied to laws impacting a protected class of people; presuming such laws may have a discriminatory effect, it only allows such laws to stand when they are found to be narrowly tailored in the least restrictive manner to serve a compelling governmental interest.  By applying this test, the court held that sexual orientation constitutes a protected class deserving of special protection. 

The First Circuit applied what the three-judge panel called “closer than usual” review of the law’s discriminatory effects, presuming that there could be some discrimination inherent in the law but balancing that against the interest of the government in passing it. The First Circuit ruling on DOMA’s constitutionality is – so far – the only one by a federal appeals court. 

In New York, Edie Windsor won her legal challenge to the discriminatory statute when she sought to recover hundreds of thousands of dollars in inheritance taxes that she would not have had to pay if the federal government recognized her rights as a spouse. Because Section 3 of DOMA defines marriage as being between one man and one woman, Windsor’s inheritance was subject to estate taxes not levied on heterosexual couples.

In finding DOMA unconstitutional under a rational basis review, the Southern District of New York indicated that no rational reason exists for a law denying same-sex couples the right to marry.  Rather than finding LGBTQ persons are a class in need of special protection by the courts, Windsor holds that DOMA defies common sense and must, therefore, be struck down.

The ACLU, which represented Windsor in court, has petitioned the Supreme Court to bypass the appeal made to the Second Circuit and decide the case themselves.

Windsor is the only case where DOMA failed under the rational basis test.  Rational basis review generally allows a law to stand if there is any possible, conceivable reason that a legislature might have thought a rational reason exists to pass a law. It is a very broad standard; when applied to statutes, they almost always pass scrutiny by the Court. 

The Supreme Court has yet to decide which form of scrutiny applies to discrimination based on sexual orientation.   That the Court will hear at least one of these cases seems almost inevitable.  In addition to the fate of DOMA itself, the Supreme Court’s choice of which case to take could establish a standard for review of laws impacting sexual orientation.

There Was No Conflict of Interest in California Gay-Marriage Case

Last week, opponents of same-sex marriage filed a desperate, bigoted recusal motion alleging that Judge Vaughn Walker, who overturned California's gay-marriage ban, should have been forbidden from hearing the case on the grounds that his sexual orientation constituted a conflict of interest.

The New York Times editorial board dismissed that ridiculous notion:

The claim is bogus. It is well established that personal characteristics, like race, sex, ethnicity, religion or sexual orientation, do not by themselves invoke the rule that judges must step aside if their “impartiality might reasonably be questioned.”

Our justice system relies on trusting members of the nation’s diverse bench to put aside their personal characteristics and abide by their duty of even-handedness. Any other approach would invite foolish and unacceptable results — female judges being kept from hearing rape or sexual discrimination cases, or black judges from hearing cases involving racial bias or civil rights.

The Washington Post editorial board agreed, and said that even if a conflict did exist, that alone isn't grounds to throw out Judge Walker's sound, legal, and just ruling in the case:

Vacating a judgment, however, is an extraordinary remedy, and courts have in many instances declined to throw out a judgment even after concluding that a judge should have disqualified himself. It is not called for here. The California-based federal appeals court is already reviewing this decision — and it should uphold it.

These editorials are both correct that there is no conflict of interest in this case. However, our legal system does provide a procedure to review Judge Walker's decision not to recuse himself.

The same cannot be said for those decisions made by justices of the Supreme Court, who are their own final arbiters on matters of recusal. If a case before the Court could create a conflict of interest for one of the justices, he or she makes the decision whether or not to recuse, without being required to disclose his or her reasoning, and the parties in the case have no recourse for appealing that decision.

It is only right that we expect the justices of the Supreme Court to be subject to the same ethical standards to which we hold Judge Walker and every other federal judge.

Alliance for Justice is engaged in an ongoing effort, supported by more than 135 of America's most prominent legal ethicists, to press for mandatory ethical standards and a review process for recusal decisions by Supreme Court justices.

Visit AFJ's website for more information on Supreme Court ethics reform.

Gay Marriage Foes Attempt Desperate and Bigoted Recusal Motion

Last August, California District Court Judge Vaughn Walker struck down Proposition 8, California's 2008 referendum banning same-sex marriage, as unconstitutional. While the case is on appeal, Prop 8 supporters have filed a motion arguing that Judge Walker's ruling should be vacated because his long-term, same-sex relationship created a conflict of interest requiring recusal from the case.

Today on the Washington Post’s website, Adam Serwer dismantles these arguments. Serwer writes that Prop 8 supporters “are reduced to arguing, essentially, that Walker’s ruling should be vacated because he is gay.” He adds that this “faulty legal reasoning” does nothing to convince anyone that the pro-Prop 8 crowd’s marriage stance “amounts to anything other than prejudice.”

The problem is that this same logic could be applied to a straight, married judge hearing the case. After all, supporters of the same-sex marriage ban are arguing that marriage equality is so damaging to the institution of marriage that the government has a vital interest in making sure gays and lesbians can’t get married. That means that a straight, married judge couldn’t be expected to be impartial, either — after all, according to supporters of Prop 8, “the further deinstitutionalization of marriage caused by the legalization of same-sex marriage,” would directly impact married heterosexuals. Therefore, a heterosexual, married judge could be seen as having just as much “skin in the game” as Judge Walker.

Justice Department Won't Fight for DOMA

Yesterday, President Obama announced that the Department of Justice would no longer defend against legal challenges to the discriminatory Defense of Marriage Act (DOMA). It’s an acknowledgment of what many already knew: that DOMA is unconstitutional and un-American. On its own, that’s a big step for equality in this country

But it also means government lawyers will no longer spend time or taxpayer money fighting to keep millions of Americans from having the right to marry. The effort put into upholding DOMA was a stain on the American legal system, and its end marks a turning point in the fight for equality.

The law is still on the books, and the fight to end legalized discrimination in America will continue, but yesterday’s decision is an important victory.

Americans Are Ready for a Gay Justice

Just over a year ago, we asked if openly gay federal judges were more than a dream. Back then, we reported that of the more than 1,300 federal judges, only one, Deborah Batts (appointed by President Clinton to the Southern District of New York in 1994), was openly gay.

Now, a year later, a recent 60 Minutes/Vanity Fair poll shows that 55 percent of Americans would support an openly gay Supreme Court justice, with 40 percent saying they are opposed. With Justice Stevens likely to retire in the near future, President Obama may have an opportunity to nominate someone to the nation’s highest court in the near future. Of those on the likely short list is Pam Karlan, an out lesbian and a Stanford Law professor.

Of his 57 nominations to the federal circuit and district courts, none of President Obama’s nominees for the federal bench has been openly gay. That may change soon, however, since Senator Chuck Schumer (D-NY) has recommended Daniel Alter to serve on the U.S. district court for the Southern District of New York. If confirmed, he will become the first openly gay male on the federal bench.

Respect the right of DC residents to legislate on local issues

On Tuesday, December 1, the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 passed in the DC City Council with a vote of 11-2. After the bill is signed into law by Mayor Fenty, it will embark upon a 30 day congressional review period. Alliance for Justice recently added its name to a letter to Congress circulated by DC Vote that calls on the House to respect the right of DC residents to legislate on local issues such as marriage equality.

Victory! Right Here In River City!

Nan Aron on Huffington Post:

The Iowa Supreme Court decision declaring the state’s gay marriage ban unconstitutional is undeniably a victory. It’s a victory for the LGBT community, a victory for equality and a reminder of the vitally important role judges and the courts play in upholding constitutional principles and defending freedoms.

Of course, this is just the sort of decision that ultra-conservatives like to use to gin up their base. But the charges of judicial activism and liberal judges legislating from the bench that they love to trot out—really just code for “decision we don’t like”—are particularly absurd in this instance. This was a unanimous decision issued by an ideologically diverse court. The Iowa Court spoke with one voice, fulfilling its most important duty: upholding the state constitution. The role of the judiciary is to review and interpret the laws to determine whether or not they fall within constitutional limitations. The role of the courts is not to take a backseat to the legislature or executive mansion when they are running roughshod over a constitution--the supreme law of the land. Or, to put it in the words of the Iowa Supreme Court itself:

These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution.

The court meticulously analyzed the marriage ban—faithfully applying the Iowa Constitution and many state statutes—and determined that it was fundamentally inconsistent with the Iowa Constitution’s promise that “the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens (Iowa Const. art. I, § 6).”

Iowa’s ruling is in many ways an echo of what is arguably the greatest decision in modern Supreme Court history: Brown v. Board of Education, and not just because Brown was another unanimous decision handed down by an ideologically diverse court. Brown proved that the courts are a place for Americans to stand up for their freedoms. Brown showed us that sometimes the courts need to be the vanguard of upholding constitutional values when societal recognition of basic freedoms and equality lags behind. Once again, Iowa Supreme Court Justice Mark Cady says it beautifully:

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.

The justices of the Iowa Supreme Court took seriously their obligation to uphold the state constitution and provide equal justice for all. As that court had done many times in the past—outlawing slavery, admitting women to the practice of law, striking down racial segregation—the judges of the Iowa Supreme Court once again “approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”