The U.S. Supreme CourtToday, the Supreme Court will take up the Defense Of Marriage Act (DOMA), the law signed by Bill Clinton that denied benefits and equal treatment to same-sex couples. This follows yesterday’s interesting, and at times heated, debate over Proposition 8 in the Hollingsworth case. I will be on MSNBC today discussing the case with NPR’s Here and Now at 12 and then Martin Bashir at 4 p.m.
While some of us have been cautioning people for weeks that this Court was more likely to look for a way to avoid a major decision and could avoid a decision entirely through standing, many were disappointed with the tenor of the questions yesterday. Members like Chief Justice John Roberts seemed openly peeved by people pushing him toward a decision on equality for homosexuals. As expected, Associate Justice Antonin Scalia was the most provocative with questions like “We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”
However, even Justice Anthony Kennedy, viewed as the key swing voter, expressed uncertainly about whether the trend toward equality would result in a magnificent end or go over “the cliff.” It was clear that the justices viewed this as a “new” question and had reservations about deciding it for the nation. Indeed, they looked like so many elderly drivers in Florida driving slowly on the highway with their turn signal on, looking desperately for an off-ramp.
That off-ramp could be standing since this case has significant problems on whether the proponents of the law have sufficient injury to demand relief before the Court. If dismissed on standing, that would also mean that the Ninth Circuit also lacked standing. That would leave the district court decision and same sex marriage would be restored in California. However, there would be no sweeping new protection secured in the case.
Another off-ramp was hinted at by Kennedy who openly wondering if the case was wrongly accepted. The Court can simply dismiss a case as premature and mistakingly granted. Many leaders on the Court like Earl Warren wanted to speak with a strong or a single voice on major issues. Absent such a consensus, some might prefer to toss the case rather than produce a fractured decision. It is clear that some justices remain undecided on the fundamental question, though most of us would not view this as a “new” question. The right to marry is not a new question. Nor is equality. Indeed, the gay rights movement is hardly new. Yet, this is an incrementalist Court that historically tries to avoid getting in front of the nation on divisive questions.
That brings us to DOMA and today’s argument. After the indecision expressed yesterday, it seems hard to believe that the justices would express certainty on the fundamental right today in the DOMA context. Many had hoped that the Court would simply find the law unconstitutional as a violation of equal protection and extend heightened scrutiny to sexual orientation. When Clinton signed this law, many condemned it as open discrimination. Indeed, it is frustrating for civil libertarians to see Clinton and Senators like Claire McCaskill come out expressing their rather belated conclusion that same-sex couples deserve equal treatment in marriage. When such decision requires more courage, they were no where to be found and, in Clinton’s case, openly worked against gay rights.
With even Kennedy expressing uncertainly yesterday, a ruling recognizing equality seems a bit more difficult today. Yet, a ruling upholding DOMA would be equally sweeping. This case also has a number of off-ramps. Standing in this case for the members of Congress is highly questionable. I represented Democratic and Republican members challenging the Libyan war and we were dismissed on standing grounds. That could be the result here, though it would be a bitter end if both landmark cases end in procedural dismissals.
Another intermediate resolution would be for the Court to strike down DOMA not only equality grounds but federalism grounds — avoiding the creation of a new fundamental protection for gays and lesbians. The Court could hold that Congress was interfering with a state question (the definition of marriage) by denying benefits to all same-sex couples (including those from states recognizing same-sex marriage). In so holding, the Court would not be holding that there is an equal protection for homosexuals but rather that this is a matter left to the states. That would still be a victory for gay rights but not the one most deserved from this case.
”
Gay marriage fraught with danger for 2016 Republican presidential field
By Alexandra Jaffe – 03/20/13 05:00 AM ET
Tweet
Republican presidential hopefuls are facing a delicate dance on gay marriage going into 2016 — even as their potential Democratic opponents embrace an issue once fraught with political danger.
Former Secretary of State Hillary Clinton’s declaration this week that she favors gay marriage highlighted the new practical reality for Democrats with White House ambitions — that after President Obama’s endorsement of gay marriage in 2012, it’s no longer safe in the party’s primary to waffle.
But for GOP contenders, the political ground continues to shift. Even as support for gay marriage grows in the broader electorate, the party’s evangelical base remains vehemently opposed.
Social conservatives traditionally turn out at high levels in early primary and caucus states, making it extremely risky for a Republican to navigate gay rights in general, and gay marriage in particular.
“Any presidential candidate seeking the Republican Party nomination in 2016 has to be very careful not to poke a stick in the eye of that base vote in any state,” said Gary Marx, executive director of the Faith and Freedom Coalition.
If the Republican party “abandons marriage evangelicals will either sit the elections out completely — or move to create a third party,” said Tony Perkins, president of the Family Research Council. “Either option puts Republicans on the path to a permanent minority.”
Speaker John Boehner (R-Ohio) authorized $3 million in spending to defend the Defense of Marriage Act before the Supreme Court next week — highlighting the importance the GOP places on defining marriage as a union between a man and a woman.
But if it’s politically risky for a major Republican candidate to back gay marriage, it’s also problematic to staunchly oppose it.
A Washington Post poll showed support for legalizing gay marriage at an all-time high of 58 percent, with 52 percent of Republicans between the ages of 18 and 29 indicating support for legalizing gay marriage.
Sen. Rob Portman’s (R-Ohio) announcement last week that he favors gay marriage made him the first GOP senator to do so, following recent moves by several other prominent Republicans.
Former presidential candidate Jon Huntsman last month announced he supported gay marriage, saying there “is nothing conservative about denying other Americans the ability to forge that same relationship with the person they love.”
And dozens of prominent Republicans — including Reps. Ileana Ros-Lehtinen (Fla.) and Richard Hanna (N.Y.) — signed a legal brief arguing gay couples have the constitutional right to marry.
Gregory Angelo, executive director for the pro-gay-rights group Log Cabin Republicans, said that “the popular sentiment on this issue is moving so quickly in the direction of support that the GOP is playing catch-up.”
“Because the Democratic Party has essentially had the monopoly on a lot of gay voters, the Republican Party has had some difficulty making inroads with them,” he added.
Among Democrats weighing a 2016 bid, Clinton, Vice President Biden, New York Gov. Andrew Cuomo and Maryland Gov. Martin O’Malley all back gay marriage.
On the GOP side, none of the high-profile hopefuls does.
Sen. Marco Rubio (R-Fla.) touted the importance of a strong family in his speech to the Conservative Political Action Conference last week and said that opposing gay marriage “doesn’t make me a bigot.”
Louisiana Gov. Bobby Jindal is opposed.
New Jersey Gov. Chris Christie vetoed a bill that would have legalized marriage in his state last year.
Former Florida Gov. Jeb Bush is opposed to gay marriage, but said in a recent interview that loving gay parents “should be held up as examples for others to follow.”
Sen. Rand Paul (Ky.) is personally against to gay marriage. But he said in his CPAC speech that the GOP “is encumbered by an inconsistent approach to freedom.”
Paul said the GOP needs “to embrace liberty in both the economic and personal sphere.”
The Supreme Court ruling on two gay-marriage cases, likely to come in late June, could change the landscape of the fight going into 2014 and 2016.
A court decision to strike down the Defense of Marriage Act could invigorate grassroots groups opposed to gay marriage to support ballot measures banning it.
Such a ruling could also bring the issue front and center during presidential primary and general debates in 2016, which would force candidates to take distinct sides — opening them up to criticism from both the right and left.
The conundrum for Republican candidates begins in Iowa, where evangelical voters made up 56 percent of GOP caucus-goers in 2012, according to exit polling. In South Carolina’s Republican primary, they made up 64 percent.
Though gay marriage may present an obstacle in early 2016 primaries, there were signs at CPAC that the issue might not be one that wins with the GOP overall.
Conference organizers left it off the straw poll ballot, despite polling on other issues.
Margaret Hoover, a top aide to the pro-gay-rights super-PAC American Unity, said there’s a growing distaste among Republicans to fight this battle.
She said that while American Unity would be willing to play in 2016 in support of any pro-gay-marriage candidates, “we might not exist” by then because of the fast rate in which public opinion is moving in favor of marriage.
“This issue is increasingly not a motivating issue for social conservatives,” she said. “One of the thing we’ve seen is many social conservatives saying, ‘we don’t want to fight on this issue.’ ””
http://thehill.com/homenews/campaign/289165-gay-marriage-fraught-with-danger-for-2016-gop-field-
28th amendment: Marriage shall be between one man and one woman and shall be the law of the land and any marriage before the passing of this amendment that contradicts that is hereby annulled. 2/3 of congress and 3/4 of the states is needed.
A prime facie discriminatory Constitutional amendment would not pass judicial scrutiny even with the right-wing bozos we currently have on the Court. It would be political suicide. Every day, the paper is filled with stories of “yet another Republican comes out in favor of gay marriage”. They’re idiots but they are finally starting to realize that pandering to religious fundamentalists is a losing game.
Wishful thinking, Timmeh.
Dance, monkey, dance!
Gene H
In 2014 congress will be controlled by the Republicans. A constitutional amendment does not need Presidential approval. At some point 38 state legislatures will be controlled by the conservatives and thus it can become a reality. When that happens, you will have to defend it because it is constitutional.
” I do believe a constitutional amendment is in order to change the 14th amendment.”
To what end exactly? Make homosexuals formally 2nd class citizens? The last person who did that made them wear pink triangles on their clothes and sent them to concentration camps.
And good luck with that particular Constitutional amendment.
You have no leg to stand on legally, Timmeh, and your religious arguments are flatly inapplicable to making a legal argument on the merits by the terms of the Constitution itself.
“I agreed with you above that the 14th amendment does apply and therefore constitutionally they should be able to marry and have the rights as everybody else. I just do not agree with that.”
You cannot agree the 14th applies and still say you do not agree.
That’s called a contradiction, Timmeh.
It’s like saying “I believe the 1st Amendment protects the right to political free speech except for liberals.” It’s nonsense logically and linguistically and as a matter of law. It’s a perfect statement of your religious beliefs though, which you are not free to force on others via the rule of law and governmental action. If you don’t think marrying homosexuals is right? Don’t marry one.
Try again.
Gene
I agreed with you on the constitutionality of the issue but I do believe a constitutional amendment is in order to change the 14th amendment.
James Knauer (formerly in LA)
I guess you don’t hate killing. How about stealing? How about taking advantage of the defenseless. Oh I know How about identity theft?
Can you give one, explicit, concrete way giving homosexual couples the same legal rights as heterosexual couples undermines “traditional marriage”? One that does not rely upon logical fallacy, distortion of law, an implicitly religious definition of marriage or an outright lie?
How does what a homosexual couple does negatively impact a heterosexual marriage they are not party to? How does a homosexual couple getting the same rights vis a vis their partner as you enjoy under secular civil law negatively affect a heterosexual marriage?
Not a bit or in the slightest is the one and only correct answer.
Gene H.
No bigotry in stating one reaps what he sows. I agreed with you above that the 14th amendment does apply and therefore constitutionally they should be able to marry and have the rights as everybody else. I just do not agree with that.
Timmy wants me to enable his hate with, “DO you LIKE the killing people do? You obviously don’t hate it.”
I do not hate. I acknowledge we as a society have decided through our representation that we are not going to be a nation of killers.
No hate of killers or killing is required. Only some common sense. Killing tends to spill over if not contained, and that’s bad for a lot of things.
So, no, I will not support your hate, even when you try to project it onto me.
Timmy hails from junior high school with, “You just got burned!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!”
The invitation to grow up stands so long as you need to grow up.
Timmeh,
The question is only problematic because you can’t f*cking answer it.
Bob Kauten
If California and Massachusetts are educated then why are they so broke? I want no part of that education.
Timmeh,
In the case of arguing with bigots such as yourself, it’s synonymous with heterosexual marriages performed in the Christian tradition. A tradition you are trying to force on everyone else by force of law: a Constitutional no-no.
Bob Kauten
I said they should pay the consequence of their action which is death. That is reaping what you sow. Nothing wrong with that.
Gene H.
Your question is problematic because it clearly shows a difference between Gay marriage and “traditional marriage.” Your acknowledgement of that proves that traditional marriage can only refer to one man and one woman which has been around a long time.
Satan?
That dude owes me money. And for supposedly being the Prince of Liars, he sucks a poker. Flames shoot out his nostrils every time he has a good hand. It’s the tell of the century.
Timmy,
Thank you so much for coming out of the closet. You’re not just delusional, you’re sick and hateful. BTW.
You have created your ugly, vengeful, stupid god in your own image. This is what you worship.
“lottakatz
BTW if you are gay and get aids then you should die with it. It is people like you that are bankrupting our country because you want taxpayers to pay for cures from immoral behavior. We would be better off if the west and east coast went out into the ocean or better yet let all of those liberal bankrupt states go under.”
This is the way you show your love? By telling people that they should die? By drowning all of the population of the educated states?
You managed to describe all of the evil in your pathetic being, in one short paragraph.
No reason to wish damnation upon you. You’re already there. I pity your children.