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.”

DOMA's defenses self-destruct

by Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law  at Columbia Law School

The favorite arguments of the Defense of Marriage Act’s defenders – that the the federal government can take a uniform approach to marriage while leaving states free to do what they choose – took a pounding at the Supreme Court during this morning’s argument in Windsor v. United States, strongly suggesting that if the Court reaches the merits, DOMA is dead.

Justice Kennedy jumped in first regarding DOMA’s singular exclusion of same-sex couples:  “[I]t's not really uniformity because it regulates only one aspect of marriage. It doesn't regulate all of marriage.”  In context, the observation highlighted that DOMA does not regulate marriage uniformly but instead regulates gay people uniformly – and negatively. 

Reinforcing uniformity’s weakness as a DOMA defense, Justice Breyer asked Paul Clement, the lawyer for the Bipartisan Legal Advisory Group (BLAG) that is defending DOMA, whether “uniformity” could also justify a hypothetical federal law that denied benefits to married couples under age 18:  “So if you're 17 when you get married, then no tax deduction, no medical, no nothing.”  In other words, although “uniformity” might sound like a neutral (i.e. not overtly antigay) defense, it cannot explain the law’s singling out of gay and lesbian married couples.

Here, Justice Kagan came in with the closer, observing that “for the most part and historically, the only uniformity that the federal government has pursued is that it's uniformly recognized the marriages that are recognized by the State.” DOMA’s sharp break with this tradition “suggests that maybe something -- maybe Congress had something different in mind than uniformity,” she said.  Though the implication may not leap off the written page, her tone – and her follow-up quotation from the 1996 House Report regarding DOMA – "Congress decided to reflect . . . collective moral judgment and to express moral disapproval of homosexuality" – made the point crystal clear. 

Hear Justice Kagan make her point.

Another favorite defense – that DOMA leaves states free to do as they wish regarding marriage for same-sex couples – ended the morning looking at least as implausible as uniformity.  Again, Justice Kennedy:  “Congress doesn't help the State[s] which have come to the conclusion that gay marriage is lawful.”

Here, too, Justice Ginsburg also made a powerful point.  By not recognizing same-sex couples’ marriages, DOMA diminishes those marriages in profound ways.  She observed:  “the problem is if we are totally for the States' decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave; people -­if that set of attributes, one might well ask, what kind of marriage is this?”

Of course, to get to the point of rejecting DOMA’s defenses, the Court first has to find it has jurisdiction to address them.  While it seems likely that BLAG will not find five votes for its standing, the Court’s view of whether the federal government can seek review when it agrees with the lower court’s ruling is tougher to call.  The Court’s conservatives expressed strong concern that the floodgates might open if the government declines to defend laws and then can appeal when those laws are struck down.  But the federal government likely remains aggrieved when any of its laws is invalidated, even on the rare occasions it agrees that a law is unconstitutional. 

And stepping back, given the likelihood that the Court will dismiss Perry (the Prop 8 case) without deciding the measure’s unconstitutionality, the Court risks taking its own legitimacy pounding if it backs away from addressing DOMA as well.

Suzanne B. Goldberg is the Herbert and Doris Wechsler Clinical Professor of Law; Co-Director of the Center for Gender & Sexuality Law; and Director of the Sexuality and Gender Law Clinic at Columbia Law School

"Skim milk marriage" is not enough

Listen as Justice Ruth Bader Ginsburg cuts to the heart of the matter when it comes to the so-called Defense of Marriage Act.  During today's oral argument at the Supreme Court, she explains how the benefits denied because of DOMA are "pervasive" and create what amounts to two classes of marriage.

And for more excerpts from today's oral arguments, and from yesterday's arguments on Proposition 8, go to the AFJ Audio Analysis section on our website.

   

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

"Voice of the children": Proposition 8 and LGBT families

You can hear the excerpts from oral argument discussed below on our AFJ Audio Analysis page for this case.

by Clifford J. Rosky, Associate Professor of Law at University of Utah College of Law
 
In today’s arguments on the constitutionality of California's Proposition 8, the issue of “standing” took center stage. Chief Justice Roberts and the so-called liberal Justices—especially Justices Ginsburg, Sotomayor, and Kagan—argued forcefully that the sponsors of Prop 8 do not have the right to defend the law in federal court, because they are not representatives of the state of California. Although Justice Kennedy seemed to think otherwise, he, too, suggested that the appeal may not have been “properly granted.” All told, it seems most likely that the case will be dismissed—either because a majority of the Justices agree that the sponsors of Prop 8 do not have standing, or because a majority is not able to agree on any particular result. Given that the plaintiffs won at trial and on appeal, either of these outcomes would be regarded as victories. Come summer, it seems likely that same-sex couples will once again be permitted to marry in California.

But once we dispose of these legal technicalities, there are other ways to take stock of today’s performance—and more broadly, to measure the LGBT movement’s remarkable progress in the last fifty years. One reliable way of assessing today’s argument is to listen carefully to how the Justices talked about the impact of same-sex marriage on kids.

In the opening argument, Justice Scalia drew upon a long tradition of anti-gay rhetoric when he raised the possibility that allowing lesbian and gay people to adopt a child may be “harmful to the child.”  Although Justice Scalia claimed to “take no position on whether it’s harmful or not,” he argued that there was still “considerable disagreement among sociologists as to...whether [it] is harmful to the child.” Because “there’s no scientific answer,” he reasoned, Proposition 8 could be justified by the mere possibility that lesbian and gay parenting is harmful.

To be sure, Justice Scalia’s remarks are a far cry from Anita Bryant’s notorious “Save Our Children” campaign, in which she argued that “homosexuals can’t reproduce, so they must recruit” children into the “homosexual lifestyle.” But even so, Justice Scalia’s remarks betray a rather strange and strained view of the existing data. By this point, 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.”

Of course, all eyes were on Justice Kennedy in today’s argument—but as usual, he confounded any effort to discern where he stands. On one hand, he admitted that he found “substance” in Justice Scalia’s point that the “sociological information is new.” Because same-sex couples have not been permitted to marry until the twenty-first century, he explained, “We have five years of information to weigh against 2,000 years of history or more.” “On the other hand,” he continued, “there is an immediate legal injury...and that’s the voice of the children.” Giving eloquent voice to the interests of children raised by same-sex couples, Justice Kennedy explained: “There are some 40,000 children in California...that live with same-sex parents, and they want their parents to have full recognition and full status.” Admonishing the sponsors of Prop 8, he insisted: “The voice of those children is important in this case, don’t you think?” If Justice Kennedy remains focused on the voices of these children, then the prospects for lesbian and gay families look bright.

Clifford J. Rosky is an Associate Professor of Law at the University of Utah's S.J. Quinney College of Law.

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.

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.

Second Circuit strikes down Defense of Marriage Act

This past Tuesday, October 16, the United States Court of Appeals for the 2nd Circuit held the Defense of Marriage Act (DOMA) unconstitutional. Windsor v. United States joins a growing number of federal court decisions invalidating DOMA on equal protection grounds. What separates Windsor from the streak of decisions striking down the law is this: it’s the first time a U.S. Court of Appeals has held that the proper standard of scrutiny for discrimination on the basis of sexual orientation is intermediate scrutiny rather than rational basis review.

A number of constitutional challenges to DOMA have made their way to the federal courts, including Pederson v. Office of Personnel Management, Gill v. Office of Personnel Management, and Golinski v. Office of Personnel Management. These cases, like Windsor, have challenged the constitutionality of Section 3 of DOMA, which provides that marriage is defined as “only a legal union between one man and one woman as husband and wife.” In these challenges, the federal courts have applied rational basis review, which provides that a law must have a rational relationship to a legitimate government interest. Rational basis is applied when the government’s classification does not involve fundamental rights or a suspect class. “Intermediate scrutiny” means that the law’s classification must be “substantially related to an important government interest.”

In Gill, the plaintiffs challenging DOMA argued that strict scrutiny ought to apply. While the U.S. District Court for the District of Massachusetts declined to find for plaintiffs under strict scrutiny, it found DOMA unconstitutional under rational basis review. On appeal, as Massachusetts v. U.S. Dept. of Health and Human Services, the U.S. Court of Appeals for the 1st Circuit affirmed the district court’s decision also on the basis of rational review. In Pederson, the U.S. District Court for the District of Connecticut held that classification on the basis of sexual orientation ought to receive heightened scrutiny, but that it is unnecessary since DOMA’s Section 3 cannot survive the less exacting standard of rational basis review. Similarly, the United States District Court for the Northern District of California used heightened scrutiny to invalidate DOMA in Golinski. But the court there made sure to include argument showing that DOMA also fails rational basis review.

In Windsor, the 2nd Circuit concluded that classification on the basis of sexual orientation is quasi-suspect because homosexuals have historically been subject to discrimination, sexual orientation has no bearing on ability to perform or contribute to society, sexual orientation is a distinguishing characteristic that leads to discrimination, and homosexuals, while continuing to make political gains, do not have sufficient power to protect themselves from wrongful discrimination. Having determined that heightened scrutiny is the appropriate standard, the court then found that Section 3 of DOMA failed this test of constitutionality.

The Supreme Court has yet to speak on the proper standard of review for classification based on sexual orientation. But that may soon change. The Pederson plaintiffs have petitioned the Supreme Court, and so has the government in both Gill and Golinski. The government may yet petition for certiorari in Windsor. Applying heightened scrutiny to sexual orientation discrimination claims is critical, and the implications of the Second Circuit’s holding might extend beyond DOMA, such as cases involving housing or employment discrimination.

For more information, see Gay & Lesbian Advocates & Defenders and the New York Times.

The Proposition 8 ruling: How did we get here?

Advocates working to restore the rights of same-sex couples to marry in California won an important victory this week when a three-judge panel of the Ninth Circuit found that Proposition 8, an amendment to California's constitution that banned gay marriages, violates the U.S. Constitution.

Like many civil rights battles, the path to this victory has been a long one, and we thought it might be helpful to share this brief timeline of the legal battle over Proposition 8:


March 7, 2000 – California voters approved Proposition 22, which amended state law to bar the recognition of same-sex marriages.

February 12, 2004 – San Francisco authorizes the issuance of marriage licenses to same-sex couples, issuing 3,955 marriage licenses.

August 12, 2004 – The California Supreme Court rules that San Francisco exceeded its authority by issuing marriage licenses to same-sex couples and declares the 3,955 marriage licenses null and void. San Francisco responds to this ruling by challenging the constitutionality of Proposition 22 in the California state court system.

May 15, 2008 – The California Supreme Court found that Proposition 22 violated the California constitution. Opponents of marriage equality had already begun working on a proposed amendment to the California constitution, carving out an explicit constitutional exception for these laws.

June 2, 2008 – Proposition 8 qualified for the ballot.

June 17, 2008 – The State of California begins issuing marriage licenses to gay and lesbian couples.

November 4, 2008 – Prop 8 passed by popular vote, with 52% of Californians voting to amend the state constitution, and therefore invalidated the California Supreme Court’s finding that laws banning same-sex marriage were unconstitutional.

November 5, 2008 - Advocates challenged Proposition 8 in state court, claiming that the ballot initiative process violated the state constitutional procedures for enacting amendments to the state constitution.  This legal challenge was not successful.

March 5, 2009 – Arguments were made in the California Supreme Court challenging the validity of Proposition 8.

May 23, 2009 – Same-sex couples in California challenged Proposition 8 in federal district court as violating the 14th Amendment of the United States Constitution.

May 26, 2009 – After hearing arguments in March, the California Supreme Court ruled that Proposition 8 validly amended the state's constitution, and was therefore a lawful and valid action.

January 11, 2010 – Challenge to Proposition 8 heard in federal court in the Northern District of California.

August 4, 2010 – Judge Vaughn Walker of the Northern District of California ruled that Proposition 8 violated provisions of the 14th Amendment of the U.S. Constitution. Proponents of Proposition 8 swiftly appealed the decision to the Ninth Circuit Court of Appeals.

November 17, 2011 – The California Supreme Court responded to the Ninth Circuit's request for advice on whether the Proposition 8’s backers should be allowed to appeal the case to the Ninth Circuit (even though state officials would not challenge Walker’s ruling), concluding the state should not bar the case from being appealed.

February 7, 2012 – The Ninth Circuit upheld the district court ruling, declaring Prop 8 unconstitutional because it violated the Equal Protection clause of the 14th Amendment by stripping away a right once granted to all people in California—the right to marry—from a particular group.

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.

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.’”