Virginia Senator Mark Warner Launches Petition To Strike Down DOMA

 While he was Governor of Virginia, Mark Warner - now a U.S. Senator - was perhaps the most LGBT friendly governor in the history of the Commonwealth.   Among other things, he signed an Executive Order barring employment discrimination against LGBT state employees (the Executive Order was continued by Tim Kaine when he became Governor only to die undercurrent GOP Governor Bob "Taliban Bob" McDonnell).    More recently, Warner has endorsed gay marriage and he now continues his pro-gay stance by launching a petition to the U.S. Supreme Court urging the Court to strike down the Defense of Marriage Act ("DOMA") as unconstitutional.   Here's what the new petition website has to say:

SUPPORT MARRIAGE EQUALITY: SIGN THE PETITION

Even though many states now recognize the rights of committed same-sex couples to marry, the federal government continues to discriminate. Same-sex couples are denied all sorts of legal rights – like access to their spouse’s insurance benefits and Social Security survivor benefits – because of an outdated law called DOMA.

That’s just wrong. All married couples should be entitled to the same legal rights – regardless of sexual orientation.

The Supreme Court recently heard oral arguments challenging the Constitutionality of DOMA, and will rule on the issue soon.

Please use the form below to stand with Mark Warner and make your voice heard. Urge the Court to strike down DOMA so that committed same-sex couples get the same legal rights as anyone else.

I hope readers - especially those in Virginia will sign the petition.

Thoughts and Reflections on the DOMA Oral Arguments

Click image to enlarge

While yesterday's oral arguments in Hollingsworth v. Perry were somewhat disappointing given that they seemed to foretell that no broad ruling in support of a constitutional right to gay marriage will be forthcoming, the oral arguments today in United States v. Windsor appear much more promising.  Indeed, many are now predicting that the Federal Defense of Marriage Act that will be ruled unconstitutional.  Moreover, the argument and questions from the justices helped to underscore that the entire purpose of DOMA was and always has been to discriminate against gay and lesbian Americans.  And true to form, just as was the case with ending segregation, those who are supporting bigotry are thumping on their Bibles as justification for their hate, bigotry and rank discrimination.  A piece at SCOTUS Blog looks at today's events.  Here are highlights:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.

And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

Justice Kennedy seemed to be leaning toward finding that there did exist a live controversy — between the government and Ms. Windsor, over whether she is entitled to a refund of an estate tax she paid on her late spouse’s estate. But Chief Justice John G. Roberts, Jr., commented that the Court had never ruled on a case in which all of the parties involved agreed — as he suggested would be the case with the government and Ms. Windsor sharing their opposition to DOMA.

Analysis at Towleroad also looks at  the ridiculousness of the arguments of the DOMA supporters:

Shortly after came a question from Justice Alito -- what is the purpose of something like federal favorable tax treatment for married couples: is it to foster traditional marriage or to focus on support households that function as a single economic unit? -- that may be that rare instance where a question can tell us where the Court is going. The conservative Alito was expressing the point we have discussed before that DOMA cannot be about encouraging heterosexuals to marry because it deals with the benefits given after two people decide to get married. Those benefits are about a married couple functioning together, not about the sex or sexual orientation of those married. This is a conservative justice criticizing the marriage rationale for DOMA. I think we saw evidence of DOMA's downfall here.

It was Mr. Clement's response to Justice Alito's question that was perhaps the most remarkably ironic and illogical statement of the entire argument: DOMA is constitutional because Congress has an interest in treating all gay couples equally. Without DOMA, Mr. Clement said, gay couples in marriage equality states would get federal benefits, but gay couples in marriage discrimination states would not.

I was floored when I heard that, and I imagined that Mr. Clement's head would cartoonishly explode after such nonsense. He argues that precisely because some states ban gays from marrying, a gay couple in one state would get federal benefits and a gay couple in another state would not get benefits if we got rid of DOMA. That means that the government has an interest in treating all gay couples the same, but different (and worse) than heterosexual couples.

What followed was a pretty remarkable 10 minutes that can charitably be described as target practice from all sides. Justice Kagan reminded Mr. Clement that some members of Congress had improper, discriminatory motives for passing DOMA. Justice Kennedy said the entire law didn't make sense, with Section 2 purporting to support states' rights and Section 3 (at issue in this case) taking states' rights away. What Justice Kennedy missed was the implication of juxtaposing Sections 2 and 3: the gratuitous recitation of current law in Section 2 (one state does not have to recognize gay marriages in another state if they violate public policy), coupled with the anti-gay federal definition of marriage in Section 3, proves that Congress didn't really care about states' rights; if it really cared about states' rights, it would have never passed Section 3. Rather, it cared only about discriminating against gays, hence the inconsistency on states' rights. Justice Ginsburg highlighted the multitude of ways that DOMA turns valid gay marriages into "skim-milk" marriages, implying that the only reason someone could support DOMA is if he or she felt diluting gay marriages was somehow a good thing. Mr. Clement struggled to respond, returning often to his talking points about how the federal government always meddles in marriage.

In short, it wasn't pretty and the bigotry and anti-gay animus behind DOMA's enactment became all too obvious.

Supreme Court Considers DOMA Today

Yesterday's oral arguments in Hollingsworth v. Perry left many, myself included feeling somewhat depressed as it became obvious that a broad sweeping ruling that would bring equality to backward, bigoted states like Virginia was not going to be forthcoming.  Hopefully, today's oral arguments in United States v. Perry will be more satisfying although once again there is the issue of whether or not the GOP group bringing the appeal has standing.  One would hope that with a theoretical split between the federal circuit courts of appeals because the 1st and 2nd Circuits have ruled DOMA unconstitutional while others have not yet handed down rulings, the Supreme Court will act to strike down DOMA.  A piece in the Washington Post looks at today's Court doings.  Here are highlights:

The Supreme Court on Wednesday continues its examination of same-sex marriage, this time considering whether Congress may withhold federal benefits from legally wed gay couples by defining marriage as only between a man and a woman. The arguments will focus on a key section of the Act. The Obama administration has said that it will not defend the law, and a string of lower courts has said that it is unconstitutional to deny federal benefits to same-sex couples who are legally married in the states where they live while offering them to opposite-sex married couples.

There are more than 1,000 references to marital status in federal law and regulations covering important federal benefits such as tax savings, Social Security payments, and medical and family leave.

When Spyer died in 2009, she left her estate to Windsor. Because their marriage was not recognized, Windsor paid a tax bill of more than $360,000.  She has sued for a refund. “It’s really unfair, unconstitutional and a violation of equal protection for the federal government for the first time in our nation’s history to have two classes of married couples,” said Roberta A. Kaplan, Windsor’s attorney.

California’s elected leadership said it would not defend Prop 8, and the Obama administration has taken the same position on DOMA. So the House’s Bipartisan Legal Advisory Group — bipartisan in name only, because the Democratic members of the committee also view DOMA as unconstitutional — is defending the law.

The court appointed an outside lawyer — Harvard professor Vicki C. Jackson — to represent the view that the case was not properly before the court.  She said the House members have not suffered the kind of injury required to bring a case to the court, and both Windsor and the Obama administration essentially are on the same side. She advises the court to wait for another case that challenges DOMA.

Four district judges and two courts of appeals have declared DOMA’s Section 3 unconstitutional. 

As the state of play now stands, the law has been declared unconstitutional as applied to same-sex couples married in the Northeastern states covered by the U.S. Courts of Appeals for the 1st and 2nd circuits. But the decisions don’t apply to those married in Iowa, the District or those states that approved gay marriage in the fall.

Central to the outcome is likely to be Justice Anthony M. 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.

Let's hope that DOMA, which was motivated by nothing but religious based anti-gay animus as the legislative record indicates, meets the death that it deserves.

Washington Post: Strike Down DOMA and Gay Marriage Bans

As noted yesterday, much to my surprise the local Daily Press main editorial on Sunday called on the United States Supreme Court to strike down the Defense of Marriage Act and state bans on gay marriage.  Less surprisingly, the Washington Post had a similar main editorial yesterday, although it argues less broadly against all gay marriage bans than the Daily Press.  To me, how the Court rules in the marriage cases will be a real demonstration as to whether equality under the law and religious freedom for all citizens truly exist in America.  If DOMA and or gay marriage bans are upheld, then the Court will have given proof that the image America likes to hold up of itself is a lie and that real freedom and liberty do not exist.   For those of us who are gay, then the issue becomes whether we are content to be less than full citizens or leave.  Candidly, if my circumstances were different, I'd have left long ago - from my experience as a gay man with the courts, I have little faith in America.  But I digress.  Here are editorial highlights:

The justices have many options as they consider how to rule. But more important than the particulars of their eventual holdings is the general direction they choose to take: They must move the country forward, not back.

It is possible but unlikely that the court will hand down ringing decisions proclaiming marriage and all its benefits to be a constitutional guarantee, available to same-sex couples in every state. We believe in this outcome as a matter of moral and legal principle, and we expect it will prevail, eventually. But we also expect it will take more time for courts — and society at large — to embrace it fully.

It is also possible that the justices will uphold Proposition 8, DOMA’s noxious provisions or both. They must not choose this direction.  .  .  . denying gay men and lesbians the right to marry is unjustifiable discrimination, and denying federal benefits to duly married couples is even more obviously repugnant to the notion of equal protection.

The arguments of those defending discrimination against gay couples are beyond far-fetched. Proposition 8’s advocates, for example, contend that restricting marriage to heterosexual couples must be rational because for thousands of years people widely agreed that the institution involved only the union of a man and a woman. That reasoning stinks of the faulty logic used to justify the persistence of all sorts of discrimination.

Gay-rights advocates are winning the argument. American society is changing faster than anyone could have thought possible only a decade ago. Nine states and the District now allow same-sex marriage.   .  .  .  .  Among young Americans, who grew up in an era in which friends and relatives could more easily come out of the closet and be themselves, there is hardly a debate.  .  .  .  .  The Supreme Court must play a part in this civil rights triumph — and justices should not shrink from it.

Another Washington Post column also looks at what the Supreme Court justices may do and is less optimistic.  Here are highlights from that column:

Don’t take anything for granted. The conservative activists on the Supreme Court may not be able to halt the inexorable shift toward acceptance of gay marriage, but we probably should expect them to try.

The two big cases being argued before the court this week could turn out to be landmarks that confirm the nation’s progress toward marriage equality — or speed bumps that impede it. Either way, the destination is clear: Nearly 60 percent of Americans approve of gay marriage, according to a Post-ABC News poll, including 80 percent of adults under 30. That looks like less a question than a decision.

You’d think the justices would have these numbers in mind  .  .  .  .  But the conservative wing of the court has no great respect for public opinion.

Even a double defeat for the forces of fairness and inclusion is conceivable, although such a result would be so illogical that even this court, the most activist in decades, probably couldn’t manage it with a straight face.

Such intellectual contortion might not disturb the slumber of the unapologetic social engineers on the court — Justices Antonin Scalia, Clarence Thomas and Samuel Alito. But it might unsettle the other conservatives, Justice Anthony Kennedy and Chief Justice John Roberts.

[O]n Proposition 8, the court could accept the opponents’ view that since gay marriage was legal in California when the initiative was approved, the measure unconstitutionally takes away rights from a targeted class while leaving those same rights intact for others — a violation of equal protection. This result, probably the best that can realistically be hoped for, would not end the battle over gay marriage, which is recognized in just nine states plus the District of Columbia. But it would allow the rapid progress toward marriage equality to continue, and it’s pretty clear where this freight train is heading.

There is, of course, the possibility that the court might choose to frame its rulings in both cases as narrowly as possible, effectively ducking the issue and leaving it to elected officials to work out. But if the justices wanted to take a pass, why did they agree to decide these cases in the first place?

The obvious issue that these two cases do not explicitly raise, but that will have to be addressed sooner or later, is mobility. This is a peripatetic society; we move from state to state. How can two men or two women be married in one state but not in another?

If today’s court were one that cared about being on the right side of history, it would use that precedent[Loving v. Virginia] to rule that if a couple is considered married in Massachusetts and Maryland, it must be considered married in Montana and Mississippi, too.  But this isn’t that kind of court, I’m afraid. More likely is an attempt to hold back the tide — or a grudging acknowledgement that marriage equality’s time has arrived. 

I will continue to hold my breath and hope for the best, but expect the worse.   Sadly, currently that's part of being gay in today's America, especially living in a state like Virginia.

Obama Administration Brief Urges that DOMA be Struck Down

In a welcome move, the Obama administration has filed a brief in United States v. Windsor now before the U.S. Supreme Court that the Defense of marriage Act, a/k/a DOMA is unconstitutional under the Equal Protection Clause of the United States Constitution.  DOMA bars same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married heterosexual couples.  NBC News has details on the government's brief.  Here are highlights:

The brief was filed Friday in United States v. Windsor, a case challenging Section 3 of the Defense of Marriage Act, or DOMA, the law that legally declares marriage to be only between a man and a woman. That section allows state and federal authorities to deny benefits to same-sex couples that are commonplace for heterosexual couples, like insurance for government workers and Social Security survivors' benefits.

In its brief (.pdf), the U.S. bluntly declares: "Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. 

"The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples," said the brief, which was signed by Solicitor General Donald Verrilli, the government's chief trial lawyer. "Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional."

In a footnote, the brief mentions California's Proposition 8 and similar measures in other states as evidence that anti-gay discrimination remains a major problem.

SCOTUSblog has more details on the brief and the government's argument.  Here are excerpts:

The Obama administration, in a sweeping defense of marriage rights for same-sex couples, argued on Friday that the denial by states of those rights over the last decade is proof that discrimination against gays and lesbians still continues. The brief cited California’s flat ban on such marriages — Proposition 8 — as an example of the ongoing problem of bias against homosexuals.

In the context of the brief, the brief references to California’s Proposition 8 were subtle and fleeting, but they immediately raised the question of whether the administration was getting into position to come out directly, next week, against that voter-approved ballot measure.
 
In a separate administration brief, also filed Friday in the Windsor case, the government’s lawyers argued that their appeal challenging the constitutionality of the federal Defense of Marriage Act is properly before the Court, and thus can be decided in that case.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians. Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.” And Friday’s brief defended that approach energetically.

This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court. The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

Some observers — including one judge who was on the court panel that ruled in the case the administration has taken to the Court — have argued that, if the tougher standard is applied, not one of the state denials of marriage to same-sex couples can survive constitutionally. Such denials have come in thirty-nine states.

Here, in summary, is how U.S. Solicitor General Donald B. Verrilli, Jr., the administration’s top courtroom advocate, went about bringing Proposition 8 and the other thirty-eight states’ denials into the Windsor case:

First, among the factors that Verrilli cited in arguing for the standard were those that have led the Court, in cases involving other forms of discrimination, to adopt a “heightened scrutiny” standard: that is, whether the group seeking that kind of protection has been a target of discrimination and has been lacking in political power so that it has less or little chance of gaining protection.

Second, in finding that gays and lesbians have been, in the past and currently, the targets of discrimination and have been lacking in political power, Verrilli cited “the recent history of marriage initiatives” — the history of thirty-nine states, including California with Proposition 8, adopting bans on same-sex marriage, either by state laws or constitutional amendments.

Third, Verrilli pointed out that, at the time DOMA was passed in 1996, only three states had laws allowing only opposite-sex couples to marry. Now, thirty-nine states do, with thirty of those coming from voter-approved state constitutional amendments.

Fourth, only six states have given same-sex couples marriage rights “through the political process,” while three more have done so through state court rulings. “That is not a convincing record of political power rendering protection unnecessary,” Verrilli wrote. And, at that point, the brief dropped in a footnote, which said that, “[b]y way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriages….In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.”

The government’s brief on the Court’s jurisdiction argued that the Republican leaders of the House of Representatives, who have taken up the defense of DOMA after the Administration abandoned it, do not have a legal right under Article III to take the place of the federal government in pursuing a final Court ruling on DOMA’s validity.   But, the brief said, the Court need not reach the issue of the GOP leaders’ “standing” because the federal government is properly before the Court in the Windsor case.

Catholic Bishops To SCOTUS: Gays Not Entitled to Marriage Since Being Gay Is Just ‘Conduct’

Proving once again that they have the same level of contempt for scientific knowledge as they did centuries ago when they condemned Galileo, the Catholic Bishops have filed briefs in the DOMA and Proposition 8 cases now before the U.S. Supreme Court which among other things state that since being gays is merely conduct (and sinful conduct at that although protecting child rapists is apparently OK), gays are not entitled to civil law marriage rights.  Oh, and let's not forget that the pillars of moral authority at the Vatican and at U.S. bishoprics once held that slavery was acceptable.  For a group that has been so consistently wrong so many times over the course of history, one would think these bitter old men would have learned to keep their mouths shut.  But nothing gets the bitter old closeted queens more upset that the prospect of normal gays having loving, fulfilling relationships recognized by society while they themselves have to be content with wearing dresses and feigning piety.  Think Progress looks at the Catholic Bishops' briefs.  Here are highlights:

The U.S. Conference of Catholic Bishops has filed amicus briefs in the two marriage equality cases before the Supreme Court, encouraging the Justices to rule in favor of discrimination. At the foundation of the Conference’s argument is the claim that gays don’t deserve any legal protections because the only thing that defines them is their “voluntary actions,” just like polygamists:

In contrast to the classes for which this Court has applied heightened scrutiny, what lower courts have understood to be a homosexual “orientation” is not a trait attributable from conception or birth. Rather, particularly as framed by Respondents here, it involves a species of conduct. Indeed, with this distinction in mind, this Court has recognized that a finding of a suspect or quasi-suspect class for equal protection purposes is  simply  inappropriate when the distinguishing characteristic is  a product of “voluntary action.”

The example of polygamists—a class that is defined in part by conduct—illustrates the point.  One can substitute “polygamists” for “homosexuals” as that term is used in the  Windsor opinion and arrive at the same conclusion for the former as the Second Circuit did with respect to  the latter. Our point, of course, is not that the two are morally equivalent, but simply that the Second Circuit’s logic leads to absurd results, and  that the absurdity originates with the decision to  ignore this Court’s “voluntary action” limitation on “distinguishing traits” that may trigger heightened scrutiny.

Unsurprisingly, the word “gay” is not to be found in the brief except when citing case law. It’s telling that the brief even uses scare-quotes around the term “orientation,” implying that the concept of a sexual orientation doesn’t even exist. Indeed, British Archbishop Vincent Nichols admitted earlier this month that the Catholic Church refuses to identify anybody by their sexual orientation. All the Church sees is sex — no identities.

The goal of completely erasing the lives of gays and lesbians is obviously apparent. Despite claims of protecting children’s well-being, the Church refuses to acknowledge that the many children raised by same-sex couples would benefit if their parents could marry. In the brief, the Bishops admit these families exist, but nothing more. Instead, they cite the problematic Mark Regnerus study and irrelevant “fatherless” studies to suggest that same-sex parents are inferior, when none of the data actually indicate that. In the name of protecting children, families, and society, they are doing the exact opposite.

Would that more prosecutors would have the balls  to go after these horrible old men who have participated in a world wide criminal conspiracy to aid and abet child rapists and to cover up their crimes.  The deserve no deference or respect whatsoever.  If any Supreme Court justice even reads their briefs they demonstrate their own moral lacking.

Another Republican Backs DOMA Repeal

While it is possible that the U. S. Supreme Court will strike down the federal Defense of Marriage Act ("DOMA") during the coming year, there is also a push to repeal the religious discrimination based act in Congress.  To date three Republicans have signed on to repeal, the latest being Rep. Richard Hanna (R-NY) (pictured at left), who sees DOMA as contrary to the Tenth Amendment of the U. S. Constitution.  Think Progress looks at Hanna's conversion which may represent a strategy for other Republicans to buck the Christofascists who seek to keep anti-gay discrimination writ large in the nation's civil laws despite the huge generational shift taking place in respect to same sex marriage.  Here are highlights:

The Defense of Marriage Act, a 1996 law that remains one of the biggest obstacles to marriage equality today, has lost another supporter, this time a GOPer swept into Congress in the Tea Party wave of 2010.

Rep. Richard Hanna (R-NY) announced in a statement late last week that he has signed onto the Respect for Marriage Act, a bill to repeal DOMA. Since its passage in 1996, DOMA has defined marriage on a federal level as between one man and one woman, purposefully excluding gay and lesbian couples. DOMA also denies gay people who have legally wed in their states countless federal benefits and protections, such as Social Security survivor benefits if one partner dies.

[M]ost Democrats now oppose it, and are gaining momentum in bringing Republicans on board. Rep. Ileana Ros-Lehtinen (R-FL) already opposes DOMA, and now Hanna becomes the 2nd GOPer to pull his support, as he detailed in an announcement Friday:

“New York State allows all its citizens the freedom to marry the person they love,” he said. “Under the Tenth Amendment, the federal government has a Constitutional responsibility to respect New York’s right to set its own laws. It’s my job to see that it does.

“It is right to extend equal protection under federal law to all couples who are legally married without infringing upon religious freedom and beliefs,” Hanna continued. “This legislation does not tell states who can be married or who must be treated as married, nor does it require any religious institution to violate their own convictions.

“I respect the deeply held beliefs on both sides of this issue,” he said. “The simple fact remains that the federal government has a responsibility to ensure all legally married couples are treated equally under federal law – and this bill would achieve that proper standard.”

[T]he entire debate in Congress over DOMA may be academic if the Supreme Court strikes it down next year. It will hear a challenge to DOMA in the first quarter of 2013 and issue a ruling in June.

Additional Lawyer Selected to Argue in Supreme Court DOMA Case

In a somewhat unusual move, the United States Supreme Court has selected an additional attorney to argue two procedural issues raised in the Edie Windsor DOMA case, namely that (1) that the Supreme Court does not have standing to review the U. S. Court Appeals for the Second Circuit ruling because Executive Branch has already conceded that DOMA is unconstitutional, and (2) the House of Representatives’ Republican leaders do not have a right to appear in the case under Article III of the Constitution which states the jurisdiction of the federal courts, including the Supreme Court, and the types of cases these courts can consider.  SCOTUS Blog looks at this development which suggest that in both the Prop 8 appeal and the DOMA appeal, the Supreme Court could using a decision of lack of standing to avoid rendering a substantive ruling.  The result would be that (a) the ruling striking down DOMA would stand and (b) the ruling striking down Prop 8 would stand and the impacts would be limited to the Second and arguably the First Circuits and, in the case of Prop 8, California, respectively.  Here are some article highlights:

The Supreme Court on Tuesday chose a Harvard professor of constitutional law, Vicki C. Jackson, to argue that the Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act. She will file a brief and appear to argue the two procedural issues that the Court itself had raised in agreeing last Friday to consider DOMA’s validity.

Jackson, who joined the Harvard faculty last year after several years at the Georgetown University Law Center, will contend that the executive branch’s agreement with a lower court that DOMA is invalid takes away the Justices’ authority to rule on DOMA, and that the House of Representatives’ Republican leaders do not have a right to appear in the case under Article III of the Constitution. The professor will appear in the case as an amicus to make only those points, not to join in the debate over the constitutionality of DOMA, which the Court also will be considering.

When the Court accepted for review two cases on the same-sex marriage issue, it added questions to each on issues about its authority to rule. The second granted case involves the constitutionality of California’s “Proposition 8,” withdrawing the right of gays and lesbians to marry in that state. In that case, the Court also will be considering whether the proponents of “Proposition 8″ as a ballot measure have a right under Article III to appeal a lower court decision striking down that measure.

With the addition of Professor Jackson to the DOMA case, it appears likely that the Court will expand the argument time for that case beyond the usual one hour. It is unclear when the Court will announce an argument schedule for the new marriage cases.

The Court presumably reached beyond the two parties in the DOMA case for a lawyer to argue the procedural points, since the parties themselves disagree. The federal government has been willing to allow the House GOP leaders to be in court to defend DOMA’s constitutionality, since the government is no longer doing so, but has raised questions about whether the Republican leaders’ petition is the one the Court should consider on DOMA. In turn, the Republican leaders have contended that, since the government got its way in the Second Circuit Court, it is not a proper party to be appealing this case on DOMA. Professor Jackson, a neutral, will argue against both as the proper parties.

 

U.S. Supreme Court Will Hear DOMA and Prop 8 Challenges

The United States Supreme Court announced today that it would consider the appeals from of the ruling of the 9th Circuit which struck down California's Proposition 8 as unconstitutional and a ruling by the 2nd Circuit that struck down the Federal Defense of Marriage Act ("DOMA").  What  Court will do in each of the cases is the subject of an array of speculation with some hoping that the Court will rule broadly and strike down same sex marriage bans nation wide  strike down DOMA.  Perhaps a more likely result will be narrow rulings that avoid national application and (1) allow the 9th Circuit decision to stand, perhaps on a decision focusing on the standing of the Prop 8 defenders and (20) striking down DOMA to the extent is would apply to couples legally married in states which allow same sex marriage.  Should the narrower approach prevail it would be in keeping with the inclination of appellate courts to address issues as narrowly as possible while resolving the issue immediately at hand.  Make no mistake about what these cases are really all about: will a majority the Supreme Court have the collective courage to rule against religious based anti-gay discrimination discrimination or not.  The Williams Institute has summarized some of the ways the lives of LGBT citizens would change should the Court rule expansively|:

DOMA & Federal Recognition of Married Same-Sex Couples: United States v. Windsor raises questions about federal recognition of same-sex couples legally married under state law. Of approximately 645,000 same-sex couples nationally, at least 20% live in a jurisdiction where they can marry. From 50,000 to 80,000 of same-sex couples in the United States are legally married, and more than 85,000 are in civil unions or registered domestic partnerships. If federal recognition of same-sex couples comes as a result of the court’s review, changes to federal policies will have a profound impact on these couples. Changes to federal leave, tax and entitlement policies:

 

• Surviving spouses of same-sex couples would gain access to partners’ Social Security benefits, which could add over $5,700 to the monthly income of the surviving spouse. See study.

• In situations similar to that of the plaintiff in the Windsor DOMA case that the Supreme Court has decided to hear, same-sex couples who are affected by the estate tax would no longer be subject to a greater tax burden upon the death of their spouse than similarly-situated different-sex married couples.See study.

• Same-sex couples working in the private sector would no longer have to pay 11% more than different-sex couples in taxes for employer-sponsored healthcare. See study.

• Same-sex spouses of federal employees would be eligible for employee benefits that are currently provided to employees with different-sex spouses.See study.

 

Proposition 8 and State Recognition of Same-Sex Couples

Research suggests the court’s decision to review Hollingsworth v. Perry, the federal challenge to California’s Proposition 8, could impact thousands of same-sex couples.

“There has been extensive research on the lives and experiences of LGBT people and their families. This research has been critical in legal analysis of disparate treatment of same-sex couples under the law, including legal analysis by the federal trial court that ruled Proposition 8 unconstitutional in the case that the Supreme Court is now reviewing,” said David Codell, the Williams Institute’s Visiting Arnold D. Kassoy Senior Scholar of Law and Legal Director.

Research shows:

 

• There are nearly 100,000 same-sex couples living in California. See study.

• Over 24,000 same-sex California couples would be likely to marry within the next three years if permitted to do so. [Williams Institute Same-sex Couple Survey, 2010]

• If California recognized same-sex marriage, 35% of same-sex couples in the U.S. would live in states where they can marry; and 28% of the U.S. population would live in states where same-sex couples can marry.

• Extending marriage to same-sex couples has a positive economic impact. Wedding spending in Maine, Maryland and Washington could generate over $166 million in the first three years. In California alone, weddings could generate almost $290 million in new spending over three years.

Towleroad also provides some analysis that is consistent with my own, although, again, there is no way of knowing how the Court will actually rule.  Here are highlights:

One thing is clear: The reason the Court took so long to grant these hearings is the complexity of the orders and myriad options open to the Court. Evidently, there was also a lot of strategy involved. That is, even though the Court gave itself great space to decide every substantive issues, each order includes a jurisdictional question that would allow the Court to avoid the substance if it really wanted to.

Hollingsworth v. Perry, challenging California's Proposition 8. 
The Supreme Court is interested in the broader holding. Its order takes as the question presented whether, under the Fourteenth Amendment, California can define marriage as between one man and one woman. It did not limit its consideration of the case to the Ninth Circuit's taking away theory.

Plus, the Court will return to the "standing" question. If you recall, the Ninth Circuit Prop 8 decision took extra time because that court had to determine if the proponents of Prop 8, ProtectMarriage, could stand in the shoes of the state to defend the law when the state government refused to. The Court would like to determine that for themselves, and because jurisdictional issues are determined de novo -- "from the beginning" -- the Supreme Court is more than free to come to a different conclusion than the Ninth Circuit.

Windsor v. United States, challenging the Defense of Marriage Act.

This is the only DOMA case for which the Court granted a hearing. It said nothing about Gill, which was the First Circuit case decided on "rational basis with bite" and included a Tenth Amendment question. But, Gill was also the case in which Justice Kagan would have had to recuse herself, so that was the least likely to be granted.

The Court chose the Government's question presented -- Whether DOMA Section 3 (one-man, one-woman definition of marriage for federal purposes) violates the Fifth Amendment -- but also included two other questions: Does the fact that the Government agreed with the Second Circuit's decision deprive the Court of jurisdiction to hear the case? And, do House Republicans, who took up defense of DOMA when President Obama refused, have standing?

By these questions, the Court gave itself space to answer both the underlying merits of the DOMA challenge and the scrutiny question. After all, it may not be possible to decide if DOMA Section 3 is unconstitutional without first deciding how to answer the question, i.e., heightened scrutiny versus rational basis.

 

The orders on both Hollingsworth and Windsor include jurisdictional questions that could decide the entire matter outright without letting the Court get to the substance of either case. So, if some of the justices feel their position won't get 5 votes, they may be more inclined to live to fight another day by making non-precedential decisions on jurisdiction now. This speaks to one of the main reasons why it might have taken so long to come to these decisions: strategy. The ideological wings of the divided Court may have been looking for ways to have a fall back position if they could not get a swing vote on their side, and sometimes, jurisdictional questions that prevent wide application of a decision beyond the one at hand offer that kind of safe default position.

 

Granting Windsor gives the Court a unique opportunity to come together to declare DOMA unconstitutional, though it is not clear that the Court is ready to mandate heightened scrutiny. But, there is no doubt that the grant in Hollingsworth took me by surprise. Its framing the case in the broadest way possible offers a chance for a monumental victory or a great loss because the breadth of the case could have ramifications outside California. This is what Ted Olson, David Boies, and the AFER team wanted all along and the country is so much closer to accepting the freedom to marry in great part because of AFER's skillful engagement with the American public on marriage freedom.

What happens next? The Court has set the stage for a March argument and a decision on the last day of the Court's current term in late June 2013. For now, the Ninth Circuit's stay that prevents the implementation of Judge Walker's original order remains in place. Gays cannot marry in California just yet. But, they are oh so much closer to a resolution.

Obviously, I would love to see expansive rulings that would striker down anti-gay marriage bans nationwide.  I am long over being a second or third class citizen merely because spineless politicians and courts have for too long given deference to the religious based bigotry of ignorant morons and demagogues.  The Supreme Court has the opportunity to drive a stake through the heart of legalized bigotry and homophobia.  The issue is whether it will have the courage to do so even as courts - e.g., Mexico - and legislatures - e.g., Uruguay, Colombia, France and the United Kingdom are taking or are poised to take the steps that cowards on the bench and in legislatures in America have failed to take.

Gay Marriage and DOMA: What Will the U.S. Supreme Court Do On Friday?

Many of us who have been following the Proposition 8 case and the various cases in which the federal Defense of Marriage Act ("DOMA") are waiting with a mix of anticipation and dread to see what the U. S. Supreme Court decides to do on Friday when it decides which, if any of the Prop 8 and DOMA cases it will consider this current term.  If the Court refuses the Proposition 8 case, then marriage will be legal again in California and the Court will have ducked making a ruling that would potentially have national application.   In the case of the DOMA appeals, the Court cannot as easily side step the issue since there are split decisions in the federal courts and typically the Supreme Court will act to set consistent precedent across the country.  Some legal experts now speculate that the Edie Windsor case (Windsor is pictured above) may be the one most likely to be taken up by the Supreme Court.  As readers may recall, both the U.S. Department of Justice and the City of New York have supported Windsor's claim that DOMA is unconstitutional.  An article by the American Constitution Society lays out why such is the case.  Here are excerpts:

While marriage equality supporters have been giving thanks for the recent ballot box victories and the Second Circuit’s Windsor v. U.S. decision, the most recent Defense of Marriage strike-down by a federal court in mid-October, the law-focused among us are also looking ahead to the next big question: What will the U.S. Supreme Court do on Nov. 30, when it is scheduled to decide on the marriage-related cert petitions pending before it?

Notably, Windsor is now looking, to many, like the leading candidate among cert-worthy marriage cases and, for marriage equality advocates, a particularly promising one for at least three reasons. 

Perhaps most importantly, Windsor presents a powerful – and personal – story of DOMA’s discriminatory effects on lesbian and gay married couples. Edie Windsor and Thea Clara Spyer were together for 42 years, from the early 1960s through Speyer’s death in 2009, two years after the couple married in Toronto, in a relationship so committed and moving that it became the subject of a widely acclaimed documentary, Edie and Thea. Yet because of DOMA, the United States refused to recognize their relationship and, when Thea died, sent Edie a $300,000+ tax bill that would have been $0 had the government acknowledged their marriage.

In addition to its facts, Windsor also adds a new dimension to the DOMA jurisprudential landscape. Among the ten federal court rulings to invalidate DOMA thus far, Windsor is the first where a circuit court applied heightened scrutiny to the statute’s sexual orientation-based classification. In the 2-1 ruling, Chief Judge Dennis Jacobs followed the high court’s traditional analysis, asking whether gay people have suffered a history of discrimination; whether sexual orientation is a distinguishing characteristic; whether sexual orientation relates to an individual’s ability to contribute to society, and whether gay people are relatively politically powerless. All of these inquiries, he found, warrant intermediate scrutiny for classifications that, like DOMA’s, distinguish between gay and non-gay people. 

Finally, many believe that Justice Elena Kagan is likely to recuse herself if the Court accepts the First Circuit’s Gill case for review because she had some involvement in the case during her Solicitor General service. By all accounts, the full Court, including Justice Kagan, would be available to hear and decide Windsor.

 As has been noted on this blog many times, there is no rational basis for DOMA at any level of scrutiny because it's sole basis flows from granting special privileges to certain Christian religious beliefs over the rights of citizens.  Not only does it violate the Equal Protection Clause, it also is rank religious based discrimination and a violation of the First Amendment grant of religious freedom to all citizens, not just Christofascists.

Court of Appeals for 2nd Circuit Strikes Down DOMA

Yet another U.S. Court of Appeals has struck down the federal Defense of Marriage Act as unconstitutional.  This time the ruling was handed down by the 2nd Circuit in the Edie Windsor (pictured above) case that challenged DOMA's discriminatory impact that caused Windsor to pay hundreds of thousands of dollars in estate taxes following the death of her wife in contrast to heterosexual couples who would have paid no tax at all.  I have long maintained that the true sole underlying goal of DOMA and all other anti-gay laws and anti-gay constitutional amendments has been to punish and penalize gays for not subscribing tho Christianist religious beliefs.   All the other supposed reasons behind such laws is frankly bull shit.  It's all about religious belief and nothing else.  Here are highlights from BuzzFeed on yesterday's ruling:

The Defense of Marriage Act, the 1996 law that defines "marriage" and "spouse" under federal law as only pertaining to marriages between one man and one woman, is unconstitutional, the federal appeals court out of New York ruled on Thursday.

The 2-1 opinion of the Second Circuit Court of Appeals in Edith Windsor's case came just three weeks after the three-judge panel heard oral arguments from the lawyers in the case. It is the second appeals court to hold the law unconstitutional, and the Supreme Court has several requests pending to resolve the constitutionality of the law.

The opinion — authored by the conservative chief judge of the Second Circuit, Dennis Jacobs — is another blow to the House Republican leadership, which has been defending the law since the Obama administration determined that the law is unconstitutional in February 2011.

Beyond striking down the law itself, the most significant development in today's ruling is that the Second Circuit held that laws that classify people based on sexual orientation, like DOMA, should be subjected to a heightened form of scrutiny when courts examine the government's claimed reasons for such laws. The holding that "intermediate scrutiny" applies makes the Second Circuit the first federal appeals court to do so. The First Circuit did not apply heightened scrutiny in its earlier decision striking down DOMA.

The Second Circuit, however, held:

In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Chief Judge Jacobs, appointed to the bench by President George H.W. Bush, was joined in his opinion by Judge Christopher Droney, an Obama appointee. The opinion, at points, is almost strident in its support for its conclusions. As to the history of discrimination, for example, he wrote:

It is easy to conclude that homosexuals have suffered a history of discrimination. Windsor and several amici labor to establish and document this history, but we think it is not much in debate.

Referring to the House Republican leadership, which is defending the law in court because it holds a 3-2 majority on the House's Bipartisan Legal Advisory Group, Jacobs wrote:

BLAG argues that, unlike protected classes, homosexuals have not "suffered discrimination for longer than history has been recorded." But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a "history of discrimination."

As to political powerlessness, one of the more hotly debated point at oral arguments, the majority opinion is again direct:

The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination.

 There's more, but you get the drift.  The Court basically ripped John Boehner and his cohorts a new one in rejecting their ultimately religious based arguments. 

Gay Rights To Be a Focus of New Supreme Court Term

Monday is the first Monday in October and thus begins a new term for the United States Supreme Court.  Among likely cases that the Court will consider are issues of the constitutionality of both Proposition 8 and the federal Defense of Marriage Act, both of which in my view are religious based discriminatory laws that seek to penalize gays because of Christianist animus towards LGBT Americans.  There was much talk last term about the Court's legitimacy being on the line depending on how it ruled on the Affordable Health Care Act and I would make the argument that they same will be the case with how the Court handles Prop 8 and DOMA.  Should it fail to strike both laws down, then it will be proof that the First Amendment guarantee of religious freedom and the promise of equal protection under the law no longer exist in America.  Adding to this reality is: the holdings of numerous lower courts striking down DOMA, the evidence at the Prop 8 trial that demonstrated that only religious based animus supported that constitutional amendment, the fact that other supreme courts around the world are increasing striking down anti-gay laws, and that six states have have same sex marriage.  The Washington Post looks at the coming Court term and here are highlights:

The court seems all but certain to confront the issue of same-sex marriage by considering suits against the 1996 federal Defense of Marriage Act. The law’s provision denying federal recognition of same-sex marriages performed in states where they are legal has been deemed unconstitutional both by the Obama administration and lower courts that have considered it.

In addition, the court will be asked to review a decision that overturned California’s Proposition 8, in which voters amended the state constitution to define marriage as between a man and a woman.

A decision on whether to accept the gay rights cases is likely to come in November.  The cases could keep the court in the same bright public spotlight that shone on its deliberations last term.

“I think there’s no question this Supreme Court is the most conservative in our lifetime,” said Georgetown law professor Michael Seidman. “But there is a question about what kind of conservatives they are.”

In the most important cases of the upcoming term, Justice Anthony M. Kennedy is likely to resume his role as the pivotal justice.   But the greatest intrigue will surround Roberts, who, in the most important case of his tenure, sided with the court’s four liberals last June to affirm the constitutionality of Obama’s signature health-care act. 

My personal view is that Justices Antonin Scalia, Clarence Thomas and Samuel Alito hold the concept of freedom of religion in contempt and believe that only their own beliefs and those of conservative Christians truly deserve protections.  As for equal protection under the law, if one isn't a member of a class they favor (and gays most certainly are not), then they don't give a rat's ass about you and/or the discrimination you face.  The gay rights cases, if taken up, may prove this sad reality and just how bigoted some of the justices are in fact..

A Reminder on Mitt Romney's Views on Gays

Click image to enlarge

My LGBT Blogger Summit friend Jeremy Hooper is having a running debate with short term Romney adviser Richard Grenell who was driven to resign in the face of the Christofascists' conniption fit over Romney naming an openly gay man and a same sex marriage advocate as an adviser.  Grenell is trying to equate Barack Obama's positions on gay rights and gay marriage as being synonymous.  One can only wonder what kind of head trauma Grenell has suffered.  At a minimum he's forgotten that the Mitt signed on to NOM's  infamous anti-gay declaration shown in the image above. 

And then there's this inconvenient statement on Mitt Romney's presidential campaign site:

Marriage is more than a personally rewarding social custom. It is also critical for the well-being of a civilization. That is why it is so important to preserve traditional marriage – the joining together of one man and one woman. As president, Mitt will not only appoint an Attorney General who will defend the Defense of Marriage Act – a bipartisan law passed by Congress and signed by President Clinton – but he will also champion a Federal Marriage Amendment to the Constitution defining marriage as between one man and one woman.

In contrast, the Obama administration has declared the Defense of Marriage Act unconstitutional and called for its repeal.  Then there's Obama's personal endorsement of same sex marriage.  In short, I ask again: what kind of head trauma has Richard Grenell suffered if he thinks the two men have the same position on LGBT rights?

Justice Department Seeking Expedited Supreme Court Review of OPMA Cases

In follow up to the Congressional GOP's request that the U.S. Supreme Court hear an appeal of the First Circuit Court of Appeal's ruling striking down DOMA as unconstitutional, the U. S. Justice Department has upped ante and is seeking a review of of the DOMA cases in both the First and Ninth Circuits.  The move will expedite the process in the Ninth Circuit case and potentially secure a prompter resolution of the unconstitutionality of DOMA.  Here are highlights from Prop 8 Trial Tracker where copies of the petitions for certiorari can be found:

The Department of Justice is asking the Supreme Court to hear two challenges to the Defense of Marriage Act, in an unexpected move. The announcement comes in the form of a letter to the Ninth Circuit Court of Appeals as part of the DOMA challenge in that circuit, Golinski v. OPM. The Bipartisan Legal Advisory Group (BLAG), who is representing the Republican-led House in defense of DOMA, had filed for a writ of certiorari to the Supreme Court in a different challenge, Gill v. OPM/Massachusetts v. HHS, this past Friday. The letter notes that the Solicitor General has filed petitions for certiorari in both cases.

The Golinski case is scheduled for oral argument at the Ninth Circuit the week of September 10, but the Justice Department is asking to bypass the Ninth Circuit hearing and ruling entirely and head directly to the Supreme Court where they can review issues such as the level of scrutiny and past precedents that may conflict with a ruling striking down DOMA.

[P]utting the issue squarely before the Justices is a significant step. And in fact, in their certiorari petition, the Justice Department tackles the issue of heightened scrutiny for laws affecting gays and lesbians head on. They write:

The district court concluded that Section 3 cannot survive under heightened scrutiny because the denial of federal benefits to same-sex couples who are legally married under their States’ laws bears no substantial relationship to any important governmental purpose that motivated Section 3’s enactment. App., infra , 36a-44a. Alternatively, the district court concluded that Section 3 would fail even rational basis review because Section 3 is not rationally related to any conceivable legitimate interest of the federal government. Id at 44a-59a. This case squarely raises important questions about the Constitution’s equal protection guarantee as it applies to a federal statute that draws distinctions among persons who are legally married under their States’ laws on the basis of their sexual orientation. For the reasons given in the government’s Massachusetts petition, those questions, and the ultimate question of the constitutionality of Section 3 of DOMA, warrant authoritative resolution by this Court.

They suggest that because the district court ruling addressed the level of scrutiny, it’s time for the Supreme Court to decide that important issue once and for all. The Supreme Court could accept one petition or both in its October conference.

It is time for the Supreme Court to strike down DOMA and end the infusion of religion into the civil laws so as to punish gays for noncompliance with an increasingly toxic and bigotry based form of religion.

Boehner and GOP Likely to Intervene Against Gay Troops in DOMA Lawsuit

Just as the Virginia GOP has plenty of time to police women's vaginas within the Commonwealth while ignoring dire needs in funding for transportation. public education, mental health care and a host of other areas that would benefit ordinary citizens, so too the national GOP can't find the time to address the national foreclosure nightmare or legislation to boost new jobs but it can find the time to intervene in pending litigation challenging DOMA and its discriminatory impact on gay service-members. It's a disgusting phenomenon, but standard operating procedure for today's Republican Party which might as well be known as the Jesus Party or the Bible Beater Party. The Washington Blade has coverage on the GOP's likely intervention in the pending DOMA litigation to further its effort to persecute LGBT Americans. Here are some highlights:

A Republican-led House panel may intervene as soon as next week against litigation that aims to overturn the Defense of Marriage Act on the grounds that it unfairly prohibits gay troops from obtaining benefits for their same-sex spouses.

The litigation, known as McLaughlin v. Panetta, was filed on behalf of gay troops and veterans by Servicemembers Legal Defense Network and Chadbourne & Parke LLC. It’s pending before the District Court of Massachusetts.

Christopher Man, counsel at Chadbourne & Parke LLC, told the Blade via email on Saturday he believes the Bipartisan Legal Advisory Group, led by House Speaker John Boehner, is “likely to intervene soon, possibly as soon as next week” and plaintiffs will oppose the intervention.

The Justice Department sent notification to Congress last month that it wouldn’t defend DOMA in the McLaughlin case — keeping in line with President Obama’s determination last year that the anti-gay law was unconstitutional — as well as provisions in Title 10, Title 32, and Title 38 of the U.S. Code prohibiting gay troops from receiving benefits.

Boehner’s panel, which took on defense of DOMA last year following a 3-2 party-line vote in the administration’s stead, is already defending the statute in other cases challenging its constitutionality.

On Feb. 9, Chief Warrant Officer Charlie Morgan, a lesbian in the New Hampshire National Guard and plaintiff in the gay troops’ lawsuit, met with Boehner’s staff to ask the Ohio Republican to stop defending DOMA in court, but was told he’ll likely continue defense of the law. She’s been diagnosed with stage-four incurable breast cancer and is seeking survivor benefits that are awarded to veterans in opposite-sex marriages for her spouse, Karen Morgan.

It is disgusting that LGBT service members are good enough to give their lives for their country but not good enough to be treated as full, equal citizens. God forbid that the GOP offend the bigotry and religious based sensibilities of the Christofascists.

Another Court Finds DOMA Unconstitutional

I have long held the view that the federal Defense of Marriage Act ("DOMA") is unconstitutional for several reasons. First, it flies in the face of the Equal Protection Clause and Due Process Clause of the U. S. Constitution. Second, it singles out a minority for special punishment because of their non-conformance with a particular set of anti-gay religious beliefs in violation of the guarantee of religious freedom under the First Amendment of the U. S. Constitution. Now, a second U. S. District Court - this one in California - has held that DOMA is unconstitutional on a similar basis to a U.S. District Court in Massachusetts in 201. One can already hear the shrieking of the Christianists bemoaning "activist liberal judges." Except the judge in today's ruling is an appointee of George W. Bush and, therefore, no bleeding heart liberal. Here are highlights from Politico on today's ruling:

Another federal judge has found unconstitutional a key part of the Defense of Marriage Act, the federal law which forbids providing federal government benefits to same-sex spouses.

U.S. District Court Judge Jeffrey White, who sits in San Francisco and was appointed to the bench by President George W. Bush, issued the ruling Wednesday afternoon in a case involving federal judicial law clerk Karen Golinski's request for benefits for her female spouse. White said the stated goals of DOMA, passed in 1996 and signed by President Bill Clinton, could not pass muster under a so-called "heightened scrutiny" test or even a lower "rational basis" threshhold.

"The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is 'to define the liberty of all, not to mandate our own moral code,'" White wrote. "Tradition alone, however, cannot form an adequate justification for a law....The 'ancient lineage” of a classification does not render it legitimate....Instead, the government must have an interest separate and apart from the fact of tradition itself."

White's 43-page decision (posted here) is similar to a ruling from a federal judge in Massachusetts in 2010, who also struck down an aspect of DOMA.

In White's ruling, he also gave an unusual back of the hand to the Chief Judge of the Ninth Circuit, Alex Kozinski, who ruled at an earlier administrative stage of the dispute that federal personnel managers had authority to cover Golinski's spouse as a non-spousal member of her family. White called that reasoning "unpersuasive."

Here is some of the on point analysis from White's opinion that I find most interesting and which will drive the Christofascists berserk:

Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples. Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasi-suspect class entitled to heightened scrutiny, the Court must look at various factors.

The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political power of the subject class.

The Supreme Court has placed far greater weight on two factors: whether the group has been the subject of long-standing and invidious discrimination and whether the group’s distinguishing characteristic bears no relation to the ability of the group members to perform or function in society. In circumstances in which a group has been subject to such discrimination and its distinguishing characteristic does not bear any relation to such ability, the court inevitably has employed heightened scrutiny in reviewing statutory classifications targeting those groups.

The first factor courts consider is whether the class has suffered a history of discrimination. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination. . . . . Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society. . . . . Further, the consensus in the scientific community is that sexual orientation is an immutable characteristic.

The Court finds that a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it. Therefore, this factor weighs in favor of the application of heightened scrutiny.

Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.”

Here, the legislative history is replete with expressed animus toward gay men and lesbians. The House Report on DOMA reflected Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” . . . . In the floor debate, members of Congress repeatedly expressed their disapprobation of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles.”

Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny. “The animus toward, and moral rejection of, homosexuality and same-sex relationships are apparent in the Congressional record.” . . . . The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is “to define the liberty of all, not to mandate our own moral code.”

“[T]he fact that the governing majority ... has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”

[T]he Court finds that Congress’ justification of promoting traditional notions of morality does not satisfy rational basis scrutiny. See Lawrence, 539 U.S. at 582 (holding that “[m]oral disapproval of [homosexuals], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”) Also, if the denial of benefits is designed to defend traditional notions of morality by discouraging same-sex marriage, “it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the ‘bare desire to harm’ same-sex couples.” In re Levenson, 587 F.3d at 932 (emphasis in original). This is forbidden by the Constitution.

Of course, the reasoning set out in White's opinion applies equally to every state constitutional amendment - including the vile Marshall-Newman amendment here in Virginia - that has denied same sex relationships of legal recognition. They are all unconstitutional in my view.