NYT: Courts Should Not Wait to Protect Fundamental Rights

Can you imagine the out cry if the rights of Christians, Jews, immigrants from  specific countries, blacks and other minorities were suddenly put up for a public vote or a Supreme Court justice said that in protecting the rights of such groups the Court should take a "go slow" approach?  Yet this is precisely what is done to LGBT Americans over and over again and even one of the Supreme Courts :liberal justices" suggested that the Court might be wise to go slow on extending gay marriage rights.  It's, of course, easy for someone not subjected to legalized bigotry and discrimination to take such a view.   What's shocking, however, is that the liberal justice is Ruth Bader Ginsberg who is Jewish.  One would think that Ginsberg of all people would grasp the wrongheadedness of allowing the majority to decide what rights a minority will be allowed to have.  The New York Times blasts this "go slow" approach in a main editorial  Here are excerpts:

With two same-sex marriage cases before the Supreme Court, numerous commentators have latched on to remarks by Justice Ruth Bader Ginsburg critical of the court’s 1973 Roe v. Wade decision that legalized abortion nationwide. It is not the judgment that was wrong, but “it moved too far, too fast,” she said at Columbia Law School last year, a view she has expressed in various speeches and law review articles. As one of the court’s moderate liberals and a champion of women’s rights, she is now being routinely cited to argue for a timid resolution on the issue of same-sex marriage that would strike down California’s ban on such marriages, but would leave prohibitions standing in about 40 other states.

How Justice Ginsburg will vote on same-sex marriage is unknown. But her comments misread the legal and political landscape at the time of the Roe decision and have been used to bolster the inaccurate notion that the court’s ruling on abortion rights somehow short-circuited a political process that was moving in the states to end criminalization of abortion.  

The real story, as explained by Linda Greenhouse, a former New York Times reporter who now teaches at Yale Law School, and Reva Siegel, a professor there, is that political conflict over abortion was escalating before the Roe decision, and that state progress on decriminalization had reached a standstill in the face of opposition from the Roman Catholic Church.

Had the Supreme Court waited for the states to move, women in a large portion of the country would still be denied the fundamental right to make their own childbearing decisions. 

The claim that the court invited a backlash by getting too far ahead of public opinion does not hold. At the time of the ruling, a Gallup poll showed a substantial majority of Americans favored letting the abortion decision be made “solely by a woman and her physician,” with more Republicans than Democrats in favor.

There is bound to be conflict and opposition when minorities pursue their rights, whether legislatively, in the voting booth or in the courts. But fear of an angry reaction from some groups cannot be the reason to deny people basic rights. As for Roe v. Wade, Ms. Greenhouse and Ms. Siegel persuasively conclude that the political polarization around abortion owes more to political realignment and the vehemence and perseverance of abortion opponents than general public anger at the court’s ruling, which was grounded in a constitutional right to privacy that flowed naturally from a line of previous decisions.  .  .  .  . The so-called backlash was a political creation that was cultivated and nourished. 

This may seem like ancient history. But there is a danger now that overblown fears of a backlash based on a false reading of politics before and after Roe v. Wade could lead the Supreme Court to shy from doing as it should — enforcing equal protection by declaring same-sex marriage a constitutionally protected right in every state.

I for one am tired of having my rights subject to the approval of a bigoted  minority of Christofascists who through lies and untruths dupe a majority into enshrining Christofascist beliefs into the civil laws.  If my rights are to be subjected to such votes, lets apply the same rule to every minority and let the shrieks and screaming begin.  Otherwise, the Times is right, the Court needs to strike down all state bans on gay marriage.

On Gay Marriage, Moderation Could Be Disastrous

Harvard law professor Noah Feldman has an interesting piece at Bloomberg.com which suggests that, if the U. S. Supreme Court takes the cowardly approach and punts on directly confronting gay marriage nationwide yet strikes down DOMA, the result may well be legal chaos and a huge volume of lawsuits against states that do not recognize gay marriage or against the federal government brought by gays in anti-gay states.  The piece makes a lot of sense and suggests that if the justices are smart, they will go whole hog and strike down DOMA and find a federal constitutional right to same sex marriage.  Thus, the biggest question may be whether or not the Supreme Court gives in to cowardice rather than hand down a broad progressive ruling.  Here are excerpts from the article:

Justice Anthony Kennedy, the perennial swing voter, might well prefer some gradual way to introduce gay marriage without producing the headline “Court Grants Gay Marriage.” But the problem with this gradual strategy envisioned by court observers and attributed to Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation. Instead of attenuating criticism of the court by avoiding a single“Eureka” moment, the court would put itself, along with lower courts, at the center of hundreds more headlines for years to come. And they would all be of the same ilk: “Court Creates Legal Nightmare; Citizens on All Sides Angry.” 

To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.   .  .  . Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out-of-state marriages, and deny them state-level marriage benefits. 

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions --across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.

[Or] the anomaly would arise when legally married gay couples moved to states that didn’t recognize their unions. Presumably they would nevertheless bring their federal benefits with them -- giving rise to the same legal issues just described.

[T]he problems that already exist in a world where some states recognize same-sex marriage and others don’t would be compounded and thrown into the federal courts. 

The court’s supposed motivation to avoid declaring a general right to same-sex marriage is to allow the political process to take its course, and not impose a unified federal solution before everybody’s ready to accept it.  .  .  .  .  But this theory relies on the assumption that even a messy political process would be superior to judicial fiat because it would leave the courts out of the equation. A partial or split decision on same-sex marriage would have the opposite effect. Instead of promoting what the great Alexander Bickel called the“passive virtue” of judicial prudence, it would put judges front and center on the issue for the foreseeable future. From the court’s perspective, it would be easier just to do the right thing. Here’s hoping Anthony Kennedy sees it that way. 

Stated another way, if the Court strikes down DOMA and the boyfriend and I get married in New York or Washington, D.C., are we married for federal purposes even though Virginia could ignore our marriage absent a broad ruling in Hollingsworth v. Perry?   Candidly, I don't know, but it would be a fun case to litigate.  The bottom line is that all gay marriage bans need to be struck down as unconstitutional under the U. S. Constitution.  

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.