Obama administration weighs in on defense of marriage law

[TotallyOz]

Finally, the POTUS has started getting some balls in his second term.

 

In the showdown in the OK Supreme Court, they have filed briefs saying that some laws that deny gay married couples rights are unconstitutional.

 

http://www.cnn.com/2013/02/22/politics/supreme-court-marriage/index.html?hpt=hp_t1

[KhorTose]

Bob---our resident Lawyer--thinks the court will rule DOMA legal due to the age and conservatism of the court.  I disagree and think Roberts will find some reason to vote against it.  I am making a public bet of dinner for four with Bob that the court does find some excuse to make DOMA illegal.

 

One reason i believe this:

 

http://www.huffingtonpost.com/2012/05/25/defense-of-marriage-act-unconstitutional-_n_1545884.html?ref=gay-voices&ir=Gay%20Voices

[Bob]

I would be happy to pay for your dinner (McD's?) should the US Supreme Court rule that DOMA violates the constitution; however, you're optimism that you're right and my personal hope that you're also right might not be merited.

 

Citing the ruling of a US District Court Judge gets you nowhere (i.e., don't get too excited when that happens).  And the fact that this particular judge is both a female and a Bill Clinton nominee ought to give you further pause (i.e., if you think she views things like the US Supreme Court justices, I've got a bridge to sell you).

 

As discussed before, it is extremely likely that the conservative justices (including Roberts) will vote to uphold DOMA.  I understand you want to fantasize Roberts as a moderate or liberal but he's a right-winger.  So, there are already 4 votes to uphold DOMA.  Presuming the allegedly liberal 4 stick together, that means Mr. Swingman's (Anthony Kennedy's) vote ultimately decides it.  He (Kennedy) has surprisingly joined the liberal bloc on a few cases which has earned him the "swingman" moniker; however, let's not forget he's 76 years old and a Reagan appointee. And there's more:

(1)  Indicating perhaps he might join the liberals, he voted with the liberals to strike down the homosexual anti-sodomy laws in Lawrence v Texas (but some lgically argue his ruling had more to do with rights of privacy versus the so-called "equal rights" of gays).

(2)  Indicating to the contrary, he joined the conservatives and voted to uphold the Boy Scouts rights to ban somebody as a scoutmaster simply and only because he/she was gay.  This particular case bothers me the most because it all turned on only one discriminating factor - the person's sexual orientation - and he voted the wrong way.

 

So, to me, it's Kennedy, Kennedy, Kennedy.  Unless he joins the liberals, DOMA remains the law of the land.  And I personally wouldn't bet on it.

[Guest anonone]

Well, it is now in the hands of the US Supreme Court.

 

From my non-lawyer perspective, there seems to be 2 concurrent arguements for overturning DOMA. 

• Over-reaching by federal government into area of state authority
• Violation of the Equal Protection clause (discrimination against gays)

As background:

 

The plaintiff is Edith Windsor, now 83, who married Thea Spyer, her partner of more than 40 years, in Canada in 2007. Both were residents of New York. When Spyer died in 2009, she left her estate to Windsor. At that time, the state of New York recognized the marriage. But because the marriage was not recognized by the U.S. government, Windsor paid a federal estate tax bill of more than $360,000, which would not have been assessed if she were married to a man.

She has sued for a refund. On appeal, the case became known as United States v. Windsor .

 

As Bob mentions above, Justice Kennedy is perceived as the critical swing vote, and it appears he is leaning our way.

 

A majority of the Supreme Court on Wednesday questioned the constitutionality of the 1996 Defense of Marriage Act and whether it created unequal classes of married couples by denying federal benefits to legally wed same-sex couples.

Justice Anthony M. Kennedy, thought likely to be the deciding vote as the court held its second day of hearings on same-sex marriage, told the advocate defending the law that it did not really promote “uniformity” in federal law.

...

Central to the outcome is likely to be Justice Kennedy. Although he sides most often with the court’s conservatives in ideological splits, Kennedy has written the majority opinion in two of the court’s most important gay rights decisions.

 

As usual, there are many arguements being made, including a lot of discussion about procedures and the way the case made its way to the court. 

 

Those technical questions dominated the first part of Wednesday’s oral arguments. A court-appointed attorney argued that a group of Republican leaders in the U.S. House of Representatives has no standing to defend DOMA in court and that the Obama administration is not a viable party because it agrees with the lower courts.

There was also some arguement about Obama's role in all of this.

 

The Obama administration has said that it will not defend the law at issue Wednesday, known as DOMA, and lower courts have said it is unconstitutional to deny federal benefits to same-sex couples who are legally married in the states where they live while offering the same benefits to opposite-sex married couples. At the same time, however, the administration has said it will continue to enforce the law until the Supreme Court rules.

During Wednesday’s oral arguments, Justice Antonin Scalia remarked on that contradiction, saying it was a “new world” when the attorney general could decide a law is unconstitutional but still enforce it. Kennedy also called that a “questionable practice.”

 

The Court is expected to release its decision this Summer, probably in June.  I really hope they strike down this biggoted law and continue the trend in the USA to recognize and legitimize gay marriage, with all the rights and responsibliites.

 

http://www.washingtonpost.com/politics/on-the-second-day-supreme-court-considers-doma/2013/03/26/331bb5ae-966e-11e2-9e23-09dce87f75a1_story.html

 

Note:  I have to add this, just because I love these quotes...

 

Solicitor General Verrilli’s FUMBA
“Now, this statute is not called the Federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act. . . . DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that. It was enacted to exclude same-sex married, lawfully married couples from Federal benefit regimes . . . .”

 

Zing ! 

 

Justice Kagan Quotes the House Report
“I’m going to quote from the House Report here . . . that ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.’ Is that what happened in 1996?”

You betcha.  Christians shoving their beliefs upon the rest of the country.

 

http://abovethelaw.com/2013/03/the-doma-arguments-at-scotus-five-money-quotes/

 

Now we wait until June.....

[firecat69]

My hope is the Court does not like to be led but rather to lead. The demographics are moving strongly in favor of Gay Marriage.

 

Young people just don't even get what the argument is about and now the majority of the country are in favor of Gay Marriage and the margin will continue to get wider.

 

Does the Court want to be so out of touch??  I hope not!

[Guest anonone]

Agree. Demographics will continue to erode any support for this type of discrimination.

 

I don't believe the court will take public opinion into consideration. I don't know enough about the Court to have a strong opinion on likely outcome. Just have to wait and see how it plays out.

[Bob]

I don't agree that demographics or popular opinion ought to have anything to do with how the Supreme Court rules on the issues before it.  Their job is to determine if a given law violates that constitution (as it is, not as we wish it would be) and basing a decision at all on either a shift in popular opinion or a shift of demographics would essentially be a violation of their sworn duties (let alone somewhat totally ignoring the notion of "rule of law.").

 

I support full repeal of DOMA and any other law that discriminates based on sex, gender, lifestyle, etc.; however, I also believe it would be very dangerous (and legally wrong) for the Supreme Court to stick their finger up in the air to test the political waters before doing the job they were sworn to do.  Their job is not to pontificate as to how life should be.

 

Changes in demographics and popular opinion ought to effect change under a democratic system in the way it was designed - via the ballot box.

[firecat69]

Please they stick their finger in the air all the time. How do you think we got stuck with that Idiot Bush for 8 years. They wanted to make sure they had a President who would appoint Conservative thinking justices.In this case it was not how the country felt but what they wanted to get for future appointees. You can pick how they will vote 90% of the time based on who appointed them and whether they were seen as a conservative or liberal. Has anyone failed to know how Scalia or Thomas would vote before the vote. Of Course not!

 

Sure every once in awhile you get one that decides opposite to his political leanings like Roberts did on the Affordable Care Act.

 

And Kennedy is probably the hardest to figure.  But bottom line it has nothing to do with the Constitution, if it did blacks would not have suffered the discrimination they did for over 100 years after the Civil War.

 

It is their job to affirm or strike down laws based on the Constitution.  Unfortunately they all decide what the Constitution says and for 25 years the overwhelming number of decisions have been 5- 4 votes. 

 

That should make me trust them??? It makes me think how ridiculous they are that they agree on nothing and the only reason they get anything done is because the minority can't filubuster the slight majority.

 

When I begin to see votes of 8-1  9-0 etc then I might believe the decisions are based on the Constitution.

 

Until then they are no better then the Congress!!!!

[Bob]

It is their job to affirm or strike down laws based on the Constitution.  

 

The exact point I was making.  And politics, demographics, or popular opinion should have no bearing at all.  That's how the rule of law is supposed to work.   

 

Many of the hot-button issues over the last decade or two have indeed been decided by close votes.  But the vast majority of their decisions (the ones that get little publicity) have not involved such close votes.  We'll know the last few days of June how these two decisions will go.

[firecat69]

Unfortunately Hot Button Issues are always the important cases to the majority of Americans.  Many cases they hear have no relevance to the vast majority of Americans. Many are Corporate cases which have no direct bearing on the lives of most Americans.

 

I should have been more specific in that I meant to say important Landmark cases that affect the majority of Americans.

 

Cases like Abortion, civil rights, who is President of the United States etc etc etc.  Those cases have predominately been decided by 5-4 votes  strictly along idealogical grounds of the Justices. 

 

Supposedly the greatest legal minds in the country can be 180 degrees opposed in how they interpret the Constitution .

 

Ridiculous I say again. I have no faith in them and believe there decisions have been made prior to arguments in the vast majority of cases.

 

I say again if the vast majority of justices agree on something , it means something to me when the vote is 5-4 , it means nothing to me.

 

Congres is full of hacks like Michell Bachman and Steve King etc etc etc. They vote the way the lobbyists tell them to vote and in many cases their education is lacking and their decisions are almost always along idealogical lines.

 

It is up to the highest court in the land to decide if what they passed is in fact Constitutional .  And yet what is constitutional is decided by the make up of the Court not by the Constitution itself. If Obama was to get to replace one of the Conservative justices in the next 4 years then many of the Landmark votes would be decided differently. 

 

So therefore it is in fact the winds of change that decide what is constitutional.  Because if they don't strike down Doma this session eventually there will be more justices on the Court appointed by a President who was elected by standing for something like the repeal of Doma .

 

And because of the change in the Court magically the majority opinion will change.

 

What is Constitutional ?  Do these justices know?I doubt it and until I see at least 6-3 or 7-2 decisions in important cases, I for one will have no faith in their rulings!!

 

And if you need proof just look at these votes!    http://andrewoneverything.com/post/43849931988/the-us-supreme-court-is-useless

[TotallyOz]

I do not think these cases will be a victory for gay rights. I think it will be a very narrow ruling that affects few people but will give a bit of a win to both sides. That is what I think will happen and now that I hope will happen.

 

Interesting that I was sitting in Rio with a very prominent gay lawyer who has argued before them many times. He was adamant that they will vote in favor of gays getting equal protection. Then, he said, "hell, if you give Clarence Thomas 50m, he will vote any way you want." Have we been looking at this all wrong? Would some of them easily be bought?

[firecat69]

If he can't his wife definitely can !  same same!!

 

Read this article and if you come away thinking that cases are decided any way except idealogical and with nothing to do with the Constitution then I have a bridge in Brooklyn I want to sell you.

 

http://news.yahoo.com/gay-marriage-high-court-case-fizzle-065952825--politics.html

[Bob]

Then, he said, "hell, if you give Clarence Thomas 50m, he will vote any way you want." Have we been looking at this all wrong? Would some of them easily be bought?

I have no reason to believe you could buy the votes of any of the nine justices including the three that I almost always disagree with and personally dislike (Thomas, Scalia, and Alito).

 

Michael, if you get a chance, ask your friend if he has any basis at all to believe Thomas might sell his vote.  I can understand having a strong dislike of the guy (join the crowd!) but making that kind of comment seems to me to be way over the top.

[firecat69]

Thomas refused to recluse himself from a case where his wife is a lobbyist for the company. Clear conflict of interest but since he never speaks a word, who knows why he thinks he can get away with it.