Edie Windsor's Supreme Court challenge to DOMA begins next week

by: Scottie Thomaston

Sat Jan 19, 2013 at 17:36:02 PM EST



The first briefs will be filed in Edith Windsor's challenge to Section 3 of the Defense of Marriage Act (DOMA), United States v. Windsor, on January 22 and 24. Edith "Edie" Windsor is an 83 year old widow from New York. She met Thea Spyer more than 40 years ago; they started dating after two years and got engaged shortly thereafter. During that time there was no possibility of two women marrying: it was during the era of the Stonewall riots, and right around the time that two men attempted to get married in Minnesota, only to have their case, Baker v. Nelson, reach the Supreme Court and earn a one-sentence summary dismissal before any arguments or briefing.




~much more below the fold~

Scottie Thomaston :: Edie Windsor's Supreme Court challenge to DOMA begins next week
Windsor was not out as a lesbian and she says she couldn't have imagined living as a gay woman or finding someone to love until she met Spyer.
As Windsor told Buzzfeed:


"I certainly did not want to be queer," she says, looking off to the side of the room while talking about an era when President Eisenhower added "sexual perversion" to the possible grounds for dismissal from public service. "There was no way. I could not imagine a life that way. I wanted to be like everybody else. You marry a man who supports you - it never occurred to me I'd have to earn a living, and nor did I study to earn a living."

What would a queer life have been?

"I had no idea what that life would have been, except underground. And denigrated. I didn't think there was anything inferior about me, but I knew that a lot of my friends would think that if they knew. And I lied all the time. My big sister knew, and ultimately became very homophobic. It was a hidden world. And Philadelphia didn't have much of that hidden world, to my knowledge."

She knew of some lesbians, women who came out of the Army at the same time that her brother and eventual husband did. "I recognized [them] as such, but even the fact of their being recognizable was another threat to me. I wasn't recognizable, so I was safe.

"Though I knew I was them, I didn't look like it."

Not looking like the few lesbians Windsor knew wasn't enough to live life married to a man and they were married less than a year. Even that, though, proved to be difficult.

"I would see two women together on a Saturday night, and I would be jealous," she says. "I had never been out with a woman on a Saturday night, never with girlfriends even, always had dates with boys. Finally, I said to him, 'Honey, you deserve somebody who thinks you're about the best thing that could happen in the world, and I need something else.' And we split." She did tell him the reason was her attraction to women. "He was too good to not tell."

He took the news hard, but she says that it turned out for the best because he did meet a woman who fit Windsor's hopes for him and they had children and a life together. "I didn't talk to him again for a lot of years, and he called on my 70th birthday to say, 'I still love ya.'"

She and Spyer met and fell in love; they became engaged, and then Spyer was diagnosed with multiple sclerosis. She gradually lost her ability to walk and was confined to a wheelchair. Spyer and Windsor remained side by side through all this and then, when it seemed like Spyer didn't have a lot of time left, they decided to get married in Canada in 2007 instead of waiting for New York to make marriage equality legal.

Spyer died in 2009. Still grieving from the loss of her partner of more than 40 years, Windsor received a tax bill for over $363,000 from the government. Under Section 3 of DOMA, "spouse" refers to an opposite-sex spouse. Windsor had to pay an estate tax bill she would have been exempted from had she married a man.

She decided to sue in federal court for a tax refund of her money and a declaration that Section 3 of DOMA is unconstitutional under the Constitution's guarantee of "equal protection of the laws" and and injunction prohibiting enforcement.





Around the same time, LGBT legal organizations were filing their own challenges to Section 3 of DOMA. Gay and Lesbian Advocates and Defenders (GLAD) filed a couple of lawsuits, and Lambda Legal and others filed challenges.

Eventually, GLAD won one of its challenges at the First Circuit Court of Appeals, marking the first time an appeals court struck down Section 3 of DOMA.

In February 2011, the Obama administration's Justice Department dropped its defense of Section 3 of DOMA, and then filed a brief in Golinski v. Office of Personnel Management, Lambda Legal's case, attacking the statute's constitutionality and suggesting that laws classifying people on the basis of sexual orientation should be subjected to a heightened form of judicial scrutiny. The Equal Protection Clause of the 14th Amendment which applies to the states (and the implied equal protection principles found in the Fifth Amendment which apply to the federal government) is designed to eliminate class-based legislation. Basically, legislators can no longer single out classes of people for differential treatment based on their membership in the class. But there are different levels of judicial review of class-based statutes, because not all of them are based on unconstitutional principles. Laws that classify people on the basis of race are subjected to "strict scrutiny", the most stringent form of review. It's possible for a law to survive strict scrutiny but it's incredibly difficult, and necessarily so, because laws designed to classify people on the basis of race are more often than not written to hurt racial minorities.

Laws that classify on the basis of sex are subjected to intermediate scrutiny. This isn't as rigorous as strict scrutiny but it is still strengthened review of discriminatory laws.

The most important thing to know about these levels of scrutiny is this: if a law is reviewed under strict or intermediate scrutiny, it's up to the government (or the law's defenders depending on the case) to explain to the court how the statute is not invidious discrimination. The evidence of the law's constitutionality has to be proved by the government itself.

Under the most lenient "rational basis" review, the person bringing the court challenge has to negate all the rational reasons for the law. And since under rational basis review, the reasons a law may be constitutional are not confined to the legislative history or the law's text itself and can be, essentially, made up on the spot by a judge ("rational speculation" as to the reasons for the law's existence), most laws survive rational basis scrutiny.

In other words, the United States Department of Justice itself suggested in February 2011 that the government has a long history of discriminating against gays and lesbians so laws written by the United States Congress (and the states) should be subjected to a more rigorous scrutiny. This, needless to say, quickly changed the entire legal calculus in these cases. The First Circuit did not adopt the "heightened scrutiny" approach, suggesting that it's up to the Supreme Court (which has so far refused to address the level of scrutiny that should be applied to laws classifying people on the basis of sexual orientation.) But the stance taken by the Justice Department reverberated in the lower courts. In Lambda Legal's Golinski case, the district court judge applied heightened scrutiny to strike down Section 3 of DOMA.

During the initial phase of Windsor's case at the district court, House Republicans filed a brief alleging that her sexual orientation was "a choice" because she was married to a man before coming out as a lesbian and falling in love with Spyer. Windsor had to file an affidavit in reply fighting against the idea that she made a choice in her sexual orientation.

After the First Circuit's Gill decision and House Republicans' petition to the Supreme Court for review of that case, the Justice Department made the decision to petition the Supreme Court for review before judgment at the court of appeals in Golinski. (They had also filed their own petition in Gill so that if the Court took up that case there may not be an issue of whether the Court has jurisdiction to hear it.) This is likely because before Justice Kagan was confirmed to the Court, she suggested she'd probably need to recuse herself from Gill since she had worked on the case as Solicitor General.

In fact, while House Republicans were refusing to file petitions before judgment at the appeals courts in any cases - and opposing all the ones filed by the Justice Department and the plaintiffs - the Justice Department's strategy involved only filing petitions in Gill and Golinski.

Then, Windsor broke from the apparent strategy and her lawyers filed their own petition for Supreme Court review before judgment at the appeals court. This was the first time a plaintiff took the unusual step of filing a petition before judgment in these cases. That wouldn't happen again until GLAD filed a petition before judgment at the appeals court in Pedersen v. Office of Personnel Management.

The petitions initially weren't received very well. House Republicans - through the Bipartisan Legal Advisory Group (BLAG) - opposed it outright as they had all the Justice Department petitions. The Justice Department asked the Court to hold the Windsor petition until after it considered Golinski and Gill. (One reason they didn't consider Windsor's petition worthy of review at that stage was the fact that she was married in Canada. House Republicans raised the question of whether her Canadian marriage would have been recognized in New York in 2009. Since the Second Circuit hadn't reviewed the case yet, they had no chance to either make a ruling on standing or send the case to the New York Court of Appeals to get the answer.)

In September, though, shortly before the Gill petition would be ready for a conference at the Supreme Court, the Justice Department filed its own petition in Windsor and in Pedersen. The Justice Department's Windsor petition would be the one the Court ultimately accepted for review, though the petition itself is more modest: they asked the Court to grant the petition in Golinski or Gill before considering Windsor in part because as a petition before judgment at the court of appeals, it was a longshot, and with Windsor's standing issues, it was even more difficult to see why the Court would take it over Golinski.

But then the Second Circuit Court of Appeals issued its ruling earlier than expected. The panel - made up of two Democratic-appointed judges and one Republican-appointed judge - struck down Section 3 of DOMA as unconstitutional and applied a heightened level of judicial scrutiny. (One judge, an appointee of President Clinton, dissented.) Notably it was the first time in history that an appeals court said that laws that discriminate against gays and lesbians should be reviewed under heightened scrutiny.

After the decision came down, not only was the petition no longer one for "cert before judgment", but the question of Windsor's standing was answered. Instead of sending the question back to the New York Court of Appeals, the Second Circuit agreed that New York would have recognized her marriage as valid. They cited lower court opinions throughout the state holding that same-sex marriages from out of state were valid, and they also pointed to the New York court's deliberate avoidance of answering the question when they could have addressed it, as a reason to accept that Windsor has standing and the question should be left to the Second Circuit for purposes of this case.

House Republicans opposed the Justice Department's petition and Windsor agreed that it was worthy of review but disagreed that a "tiered" approach was necessary, where some cases took precedence over hers. The Justice Department also noted in a filing that it would take further action at the Supreme Court in light of the Second Circuit's decision. This was a unique situation - parties asked for review before judgment at the court of appeals and the judgment was issued before the Supreme Court even held a conference for the case.

Ultimately, the Justice Department changed its mind: it submitted a brief telling the Court that since the Second Circuit ruled, the Windsor case is now the best case for the Court to review the constitutionality of Section 3 of DOMA.

When the Court finally held its conference - after a few delays - it chose the Justice Department's petition in the case. The reason seems simple enough: at the time, there were only two petitions in the Windsor case, the Justice Department's and Windsor's herself. She had filed her petition before judgment at the court of appeals and she did so after winning at the district court level. As the prevailing party who was already facing other Article III standing issues, there would have been a lot of questions to answer before even reaching the merits of her case. But the Justice Department, despite getting what it wanted when the Second Circuit struck down Section 3 of DOMA as unconstitutional, had judgment entered against its clients (the Executive Branch) so it seemed to make more sense to grant their petition.

But then the Court added standing and jurisdiction questions to be briefed and argued: whether the Court can hear the case since the Justice Department agrees the law is unconstitutional, and whether BLAG has Article III standing.

This is in some ways not as complicated as it sounds. The Court wants to know if the fact that the Justice Department also thinks Section 3 of DOMA is unconstitutional means that there are no true opposing parties in the case. If they granted the petition of a party when that party agrees with the other side there would not be a way for the Court to reach the merits of the case.

And there was a dispute all along in the lower courts about BLAG's standing. The Supreme Court has never ruled on whether a "legal advisory group" for Congress has legal standing to appear in court to represent the interests of Congress. And BLAG only represents the House and not the entire Congress. Added to that, they only took a 5 member vote and only one political party voted to defend DOMA. The vote was 3-2. The Supreme Court has held that Congress has standing to defend its own laws (in a case called INS v. Chadha) but since BLAG came into existence decades ago, they have never definitively ruled that the legal group has standing to represent the interests of Congress.

The Court appointed an outside attorney (and law professor) named Victoria C. Jackson to argue that BLAG lacks standing and that the Justice Department's agreement with Windsor and the lower court deprives the Court of jurisdiction to hear the case. The other parties will argue that there's a live case or controversy here.

Even still, in early January, BLAG filed its own petition for review in the case, so that, they suggest, the Court can review the merits. The question is of course if BLAG's standing issues mean they're not a proper party either.

January 22 the first briefs are due in this case (and in the Prop 8 case.)

The merits question as written in the Justice Department's petition is:

Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.

Without the benefit of reading the new briefs, it can be assumed that BLAG will argue these justifications for Section 3 of DOMA:

(1) To maintain uniformity

(2) To save money

(3) To preserve a traditional understanding of marriage

(4) To encourage responsible procreation

They will also argue that Baker v. Nelson is still binding precedent and must be followed. And they will suggest that Section 3 of DOMA should only be reviewed under rational basis - that no heightened judicial scrutiny is necessary because gays and lesbians don't fit the criteria for receiving heightened scrutiny.

Those are:

(1) Whether the class has historically been subjected to discrimination

(2) Whether the class's defining characteristic relates to its ability to contribute to society

(3) Whether the class has an obvious or immutable trait

(4) Whether the class is a minority or politically powerless.

Importantly, not all of these factors need to be met.

BLAG has conceded that gays and lesbians have suffered from discrimination. They argue that it is not the same level of discrimination as other groups. At the Second Circuit, Paul Clement pointed to the right to vote as an example. He said gays and lesbians have never been denied the right to vote for being gay or lesbian but black people and women have.

BLAG has argued that the second factor means whether the defining characteristic relates to the right they're seeking. They've said that gay people can't procreate together so essentially it does affect their right to marry (which they say is based on procreation.)

As to the third, BLAG has argued that sexuality is fluid, so much so that the characteristic is not "immutable" enough. They've brought in studies to show that sexual orientation "changes" for some people.

As to the political powerlessness argument, BLAG has argued that the recent wins at the ballot box and the repeal of Don't Ask, Don't Tell prove that gays and lesbians are not politically powerless.

Windsor and the Justice Department cite a long history of discrimination against gays and lesbians by the federal government, state and local governments, and even individuals. Stuart Delery, who is gay, argued for the Justice Department at the Second Circuit that being gay or lesbian bears no relation to one's ability to contribute to society. Windsor and the Justice Department had expert witnesses and affidavits on the immutability of sexual orientation and in some instances even proved that BLAG was misrepresenting some of the research they cited. And Windsor argues that according to Supreme Court precedent, the group only has to be relatively politically powerless. When laws impacting women were afforded heightened scrutiny, they'd already fought for and won the right to vote via a constitutional amendment, the Civil Rights Act protected against sex discrimination, among other advancements.

In terms of the justifications for Section 3 of DOMA listed above, Windsor has argued that not only should heightened scrutiny apply, but the objectives are not even "rationally related" to what the law actually does. (For example, the law simply defines marriage as between a man and a woman for federal purposes; how does that encourage responsible procreation?) And Windsor has argued that "tradition" is not a basis for a law (citing Lawrence v. Texas, which said that rather straightforwardly.) And Windsor has pointed out that neither saving money nor maintaining uniformity are legitimate bases for a law. And further, a study was released showing that DOMA actually costs the federal government money.

BLAG argues that Baker should be followed. But Windsor has pointed out that the jurisdictional statement (the issues to be decided in the case) in Baker refers only to sex discrimination and not sexual orientation discrimination. And later Supreme Court precedent has said that the type of case Baker was (a summary dismissal "for want of a substantial federal question") is precedent but only as to the precise issues involved and necessarily decided. And another case has said that if "doctrinal developments" have changed since the time the case was decided it can erode the foundation of the holding. And since Baker, heightened scrutiny came into existence. Not to mention, Bowers, Romer (which held that animus against a group is no basis for a law), and Lawrence were decided in favor of gays and lesbians.

As far as standing, the Justice Department has argued that since the Executive Branch has a judgment entered against it, it remains an "aggrieved" party with an injury and can remain in the case. And BLAG argues that Congress can intervene to defend statutes when the Executive Branch decides not to, otherwise the Executive Branch could easily nullify a law it doesn't like.

If the Court doesn't see any rational reasons for the federal government to define marriage in a restrictive way when nearly 1/5 of the states define it in a different way, Edith Windsor wins her case and gets her $363,000 back along with a judgment that Section 3 of DOMA is unconstitutional. (Section 1 is just the title, and Section 2 is a redundant statute that says a state doesn't have to recognize another state's same-sex marriage. They wouldn't have to without the statute - there is a public policy exception to the Constitution's Full Faith and Credit Clause.)

If the Court somehow finds rationality in this attempt to, as the House Report on DOMA says, "promot[e] [and 'encourage'] heterosexuality" then Windsor will lose and another Supreme Court holding (like 1986's Bowers v. Hardwick) will remain on the books.

As that report says:

There are, then, significant practical reasons why government affords preferential status to the institution of heterosexual marriage. These reasons--procreation and child-rearing--are in accord with nature and hence have a moral component. But they are not--or at least are not necessarily--moral or religious in nature.

For many Americans, there is to this issue of marriage an overtly moral or religious aspect that cannot be divorced from the practicalities. It is true, of course, that the civil act of marriage is separate from the recognition and blessing of that act by a religious institution. But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect. Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. As Representative Henry Hyde, the Chairman of the Judiciary Committee, stated during the Subcommittee markup of H.R. 3396: `[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate. . . . And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.'

Or perhaps the Supreme Court will rely on its own past decisions and hold that moral disapproval, animus, or tradition can't be used as justifications to uphold Section 3 of DOMA. We'll know more after the oral argument on March 27. A decision is expected in June.  

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OMG, OMG indy is HERE! Welcome, welcome to the Moose. (2.00 / 28)
Now back to read your post, will comment about the content later.

Wer kämpft, kann verlieren. Wer nicht kämpft, hat schon verloren.
                       - Bertolt Brecht


Hey, you! (2.00 / 26)
I was gonna be the first to welcome him! This is the son of my heart, ya know. :)

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu

[ Parent ]
Sorry, Nurse Kelley, didn't mean to leapfrog over you, but (2.00 / 25)
everybody knows you, anyway, and I'm pretty much of a low-profile non-entity - May I have a little sunlight, too, please? :)

Wer kämpft, kann verlieren. Wer nicht kämpft, hat schon verloren.
                       - Bertolt Brecht


[ Parent ]
With your name, I thought you were a founder! (2.00 / 23)
I never did get in the habit of checking ID numbers, so I made that age-old mistake: I assumed something. :(

I've got news for you - you're neither low-profile nor a non-entity. Everywhere I go, there you are, making me think or smile.

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu


[ Parent ]
Nah, I wandered over here during the boycott of 9/2011 in solidarity (2.00 / 19)
with the important voices banned when Kos let loose the banhammer. I'm translatorpro at the GOS, but not a very prolific writer, more of a reader and occasional commenter. I have all of 3 diaries over there. You and I have crossed paths in Noddy's diaries and P&W posts, but I'm very gun-shy and avoid pie-fights, as do many (if not most) of us who have joined the herd. This being a smaller pond, it's easier to get noticed... and easier to get to know the fellow moose better. I do draw the line at sniffing behinds, though -do moose do that, or only snuffle at each other's nostrils? That's ok, then.  

Wer kämpft, kann verlieren. Wer nicht kämpft, hat schon verloren.
                       - Bertolt Brecht


[ Parent ]
I know you! (2.00 / 17)
I promise I won't sniff your behind, if you promise to laugh at my lame jokes.

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu

[ Parent ]
It's a deal! Back to reading now... (2.00 / 15)


Wer kämpft, kann verlieren. Wer nicht kämpft, hat schon verloren.
                       - Bertolt Brecht


[ Parent ]
Woo to the hoo! (2.00 / 13)
Welcome! I'm just on my way to make dinner. Back to read later...

So glad to see you here!

xoxo,
ear

Ho'oponopono. To make things right; restore harmony; heal.


[ Parent ]
Scottie!! (2.00 / 10)
You look fabulous in purple!  :hughughug:  :D

[ Parent ]
Welcome to the Moose, Scottie! (2.00 / 10)
Jan has pretty well taken over the welcome wagon, which is great because Kysen usually drinks everything in it before it gets anywhere.

Make yourself at home, if you're hungry I think spacey is grilling something tasty in the kitchen.

John Askren - "Never get into a pissing match with a skunk."


[ Parent ]
Making churros stuffed with Nutella. (1.88 / 8)
Gotta love Nutella.

Welcome to the Moose, Scottie!

Just because they are posting on a progressive site doesn't make them progressives. - John Allen


[ Parent ]
smooches Scottie :) (2.00 / 7)
much love

Happy to see you here.  

"If you're in a coalition and you're comfortable, you know it's not a broad enough coalition"

Bernice Johnson Reagon


[ Parent ]
Just had time to read this now (2.00 / 3)
I love how make the mess and maze of all of this understandable.

Fingers crossed that you're in the front row to see this all played out and that justice prevails.


[ Parent ]
Let me be the first to welcome you, Scottie ♥ (2.00 / 28)
I wasn't kidding - this is the diary I want to read. I'm going to go make some coffee and settle in and read it.

It will be quiet here for a while. :)

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu


Yeah it's really long :p (2.00 / 21)
Even worse is that almost all those links are mine so it could have been that much longer. Haha.

I'll be around though!


[ Parent ]
If you want more detailed information (heh) (2.00 / 26)
SCOTUSBlog is doing an interesting series on the Article III standing and jurisdiction questions in the case. Here's Part 1, 2, 3, 4.

And the House report linked in the post is really interesting.

And here's the briefing schedule.


Scottie, I am so glad you are here. (2.00 / 25)
Welcome and thanks for posting.

Hey bjm! (2.00 / 24)
Glad to be here! This seems like such a good place.  

[ Parent ]
I find it very soothing and interesting at the same time! eom (2.00 / 15)


[ Parent ]
I find it very soothing and interesting at the same time! eom (2.00 / 15)


[ Parent ]
Well worth saying twice. : ) n/t (2.00 / 14)


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[ Parent ]
This is an excellent synopsis, Scottie. (2.00 / 22)
It brings all the pieces together for me as we approach March, and I've hotlisted it so I can read your links in more detail.

Wait - where are my hotlisted diaries? Anyone know?

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu


Cool thanks! (2.00 / 20)
And if people want to ask me about the case I can try to answer stuff. I'm not a lawyer but I've been really deep in the details of this for a long time now.

I can't WAIT til March. The other day when I got my flight booked it made me even more excited. This is actually happening.

It's also really the best time to hear arguments in these cases: they're hearing arguments in the Prop 8 case on March 26 - ten years after they heard arguments in Lawrence v. Texas.  


[ Parent ]
You'll have to tell us about the oral arguments! (2.00 / 20)
My grandfather once argued a case before the Supreme Court, but he died before I could ask him what that was like.

I particularly want to know what you think of Justice Thomas. He almost never speaks, but what are his facial expressions like? Does he pay attention, or is he playing Suduko on his Blackberry?

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu


[ Parent ]
He actually spoke just the other day (2.00 / 19)
for the first time in like six years. He made a joke about Yale law school.

I'll definitely watch them and let you know about that! It really depends on how things go for seating. Waiting to hear back on media seating. If we don't get those then I can request reserved "tourist" seating which is almost just as close. Or I'll have to wait in line and end up sitting wherever I can when I get in.

So we'll see.

There's also (I've read anyway) a room where there's just audio and you can't see them. But I doubt I would do that unless I had to. I want to watch the whole thing!

I actually like listening to the audio recordings of oral arguments. Some of them get really funny. They make jokes and screw around.  


[ Parent ]
! (2.00 / 18)
Don't ask ...

Words have meaning. Our words will reflect what is in our souls.


[ Parent ]
OMG (2.00 / 17)
Here come the judge!

[ Parent ]
You're too funny! (2.00 / 16)
We need an "LOL" choice to go with "Meh" and "Fierce".

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu

[ Parent ]
I can't find my hotlisted diaries either. (2.00 / 17)
My guess is that it is something that should be a link on the Diaries tab in your My Moose page but I don't see it there. Maybe it is something that can be easily turned on?

I hotlisted a couple of diaries also. It didn't tell me I couldn't.

Words have meaning. Our words will reflect what is in our souls.


[ Parent ]
Maybe Kysen knows? (2.00 / 18)
One of his diaries is one I hotlisted. I'd hate to lose it.

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu

[ Parent ]
I actually have nary a clue... (2.00 / 15)
I'm not much of a tech-minded sort.

I will ask around, though, and if our collective Moose heads cannot come up with a solution...we will contact Soapblox.

Hopefully there will be an answer of some sort soon!

/grin

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[ Parent ]
Scottie welcome and thanks for this synopsis. (2.00 / 22)
i'll need to get back to this tonight when all is quiet.

it's been anything but that around here today, in a good way.

time...it seems to move so slowly until that day, when it doesn't.


Thanks! (2.00 / 18)
It's a lot to read anyway.

I actually just woke up a little over an hour ago. After a long week I got to finally sleep.  


[ Parent ]
Thanks! (2.00 / 17)
It's a lot to read anyway.

I actually just woke up a little over an hour ago. After a long week I got to finally sleep.  


[ Parent ]
Welcome to the Moose, Scottie! /grin (2.00 / 19)
It is really good to see ya in purple...and really good to see you already writing on important matters.

I think you will find (have already found) many familiar faces...and I can promise that the unfamiliar ones are just as friendly.

Make yourself at home, if you have any questions just ask in any active thread and I'm sure someone will have an answer to ya quickly (or you can always use the Contact the Moose link at the bottom of the page).

Check out our About and Posting Guidelines for a solid overview of how we do things 'round these parts (also give our Insider's Guide to Motley Moose a looksee for some of our unspoken rules/traditions).

Welcome!



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Really glad to be here. (2.00 / 17)
A lot of my friends highly recommended this place and I've been lurking, haha.


[ Parent ]
I happen to be very fond of lurkers.... (2.00 / 14)
being a frequent one myself.

/grin

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[ Parent ]
OT question for you, boss (2.00 / 16)
Where do hotlisted diaries go? (You'd better tell me - yours was the first one I hotlisted!)

"Do your little bit of good where you are; it is those little bits of good put together that overwhelm the world." ~ Desmond Tutu

[ Parent ]
I replied in the other thread... (2.00 / 13)
but, we are trying to figure it out. If we Moose can't...we will then contact Soapblox. One way or the other, hopefully there will be an answer soon.

(I'm no boss...just one of many in Moose maintenance)

/grin

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[ Parent ]
What a great write up, thank you. (2.00 / 19)
you made this make sense to someone who had no idea how disect this.

I almost wish this deal was going to happen a year or two from now so it might get a better court, I'm scared.


I don't know about a year or two sadly... (2.00 / 17)
The only Justices old enough that they might retire are Ginsburg, Scalia, and Kennedy. So the most we could hope for is a replacement of Ginsburg with another Democratic appointed Justice. But she's more than likely already on our side anyway. (Especially since she argued to the court that sex discrimination warrants heightened scrutiny; it's not a huge jump from that to sexual orientation discrimination.)

I think if we have a Democratic President serving for eight years after this administration ends we'll start seeing Scalia or Kennedy leave the bench.  


[ Parent ]
Hi Scottie! ::waves:: good to see you, glad you're here! (2.00 / 17)


"Pin your money to your girdle and don't talk to strangers."  My Grandmom's advice when I went away to school.  I don't wear a girdle and have never met a stranger.  Sorry Grandmom!

Glad to be here! (2.00 / 16)
waves back

[ Parent ]
Wow, awesome summary (2.00 / 15)
If summary is the right word.

Thanks, Scottie, and awesome to see you in purple

Enduring security and lasting peace do not require perpetual war.

Barack Obama 1/21/2013


Good to see you too! (2.00 / 12)
And I laughed at "if summary is the right word." Funny that this was the shortest this could have possibly been.  

[ Parent ]
Good to see you too! (2.00 / 13)
And I laughed at "if summary is the right word." Funny that this was the shortest this could have possibly been.  

[ Parent ]
Protip (2.00 / 13)
Comments don't post instantly. If you hit post twice thinking it hasn't gone through, you get twin comments (speaks she who did it several times before she figured it out). I think if mods see them they make one go away, but still.

Enduring security and lasting peace do not require perpetual war.

Barack Obama 1/21/2013


[ Parent ]
This always kills me ... (2.00 / 18)
To preserve a traditional understanding of marriage

Which "traditional understanding of marriage" exactly?  I know, I know "between a man and a woman" is the generalized answer but that has evolved over time.

Scottie, do you have any predictions for how this will go?

"When Fascism comes to America, it will come wrapped in teh stupid and waving a gun" ~ Esteev on Wonkette


Yeah exactly. (2.00 / 16)
Which tradition?

As far as predictions... I really really hate to make any. The whole thing terrifies me. This is not the best Court to hear these arguments to be honest.

But I think our side (the plaintiffs and DOJ) have a strong case that the justifications for DOMA aren't enough to sustain its constitutionality. I could see a 6-3 opinion striking it down. Kennedy and Roberts on our side.

I'm less sure on the level of scrutiny. They may not apply a heightened level at all.  


[ Parent ]
Yeah, predictions are hard ... ask Jeffrey Toobin re: ACA. :) (2.00 / 12)


"When Fascism comes to America, it will come wrapped in teh stupid and waving a gun" ~ Esteev on Wonkette

[ Parent ]
So now that I've taken the time to read more carefully, (2.00 / 12)
how is a law that specifically excludes a group of people from enjoying the same benefits as others not discriminatory in and of itself?  Seems that exhibit 1 on the issue of discrimination could be DOMA.

Also if one of the reasons for marriage is procreation how come couples who opt not to or are unable to have children are not excluded in the "traditional marriage" class?

The whole thing is offensive.

"When Fascism comes to America, it will come wrapped in teh stupid and waving a gun" ~ Esteev on Wonkette


The first question (2.00 / 10)
is an excellent one. For definitional laws Congress usually gets to decide where it can draw a line. So it can reserve some benefits for some people and not others. But here they've drawn the line based on simple dislike of gays and lesbians and that seems to be obviously unconstitutional under Supreme Court precedents. It really seems self-evidently unconstitutional.

That's why BLAG is mostly justifying it by saying "it saves money" or "it was a cautious approach" and the other stuff they're saying. They're doing their best to try to show that the line-drawing wasn't based on anti-gay hatred. They even at one point said that some effects of DOMA actually help gays and lesbians so it wasn't enacted out of animus. Uh huh.

As far as the second thing goes they just argue that we can't impose those types of limits because that would be unworkable. But you're right that it doesn't make sense. Even Justice Scalia said as much in his dissent in Lawrence.  


[ Parent ]
The answer is really that our Constitutional (2.00 / 6)
jurisprudence regarding Equal Protection sets up a tiered system for dealing with discrimination.  Normally, under doctrine, laws are presumed to be constitutional so long as they are rationally related to a legitimate state interest.  If the discrimination is based on those being discriminated against being part of a class persons which are, in and of themselves, Constitutionally suspect (for example, race, religious affiliation, national origin), then that discrimination must pass a strict test of Constitutional scrutiny in order to be found valid. The burden is shifted under strict scrutiny to the state, which must show that it is narrowly tailored to meet a compelling state interest.
There  is also a tier of intermediate scrutiny, which is applied to discrimination based on sex.  Under intermediate scrutiny, the law must be shown to further an important government interest through means that are substantially related to that interest.
Equal Protection doctrine (so far) on lesbian gay rights has, up till now, been based mostly on the Rational relation test.   Justice Kennedy, in both Roemer and Lawrence, wrote that those laws did not meet the rational relation test because they were based on mere animus towards homosexuals.   Some scholars have hypothesised that these cases have gradually moved LGBT rights to a form of intermediate scrutiny, one which may not be as defined as that used for simple gender discrimination, but one which places those rights (because of the issue of acting solely on the basis of mere animus) beyond the scope of the rational relation test.

I am for the individual over government, government over big business and the environment over all. -- William O. Douglas

[ Parent ]
I hope I'm not the only one who has this question but (2.00 / 3)
could you explain this a bit more:

If the discrimination is based on those being discriminated against being part of a class persons which are, in and of themselves, Constitutionally suspect (for example, race, religious affiliation, national origin), then that discrimination must pass a strict test of Constitutional scrutiny in order to be found valid.

Specifically what does "Constitutionally suspect" mean?

I guess I also struggle with the tiers because I'm not sure, if I am understanding this correctly, how discrimination based on, say, gender, is any different than discrimination based on race.

Lastly, it would seem that even the name "Defense of Marriage Act" shows animus toward LGBT.

"When Fascism comes to America, it will come wrapped in teh stupid and waving a gun" ~ Esteev on Wonkette


[ Parent ]
He'll probably jump in to explain better (2.00 / 4)
but I just saw this comment so I wanted to reply:

Basically any law can "classify" people - put them in groups. A law can affect bakers for example. That doesn't mean that the law should be presumptively constitutional. For most laws all you need is a "rational relation" to a "legitimate state interest" for the law to be constitutional.

But for "suspect classes" the requirements for constitutionality are more strict. Suspect classification is basically a classification that should be scrutinized by judges more strictly because of its potential to be a classification that is based on discrimination.

So race for example is a "suspect class" reviewed under "strict scrutiny" which is the strongest form of constitutional review. Under that review the government interest served by the law has to be "compelling" - not just rational. And the law has to be "narrowly tailored" to its objective. A whole lot of laws fail strict scrutiny because it's very hard for the government to prove that a law serves a compelling government interest and is narrow enough that it doesn't discriminate. This helps prevent legislatures from passing racist laws that are overbroad or not related to anything seriously important the government wants to do.

Sex discrimination is reviewed under intermediate scrutiny where the government interest has to be important and the law has to be substantially related to that interest. Not just rationally related.

The term "suspect class" is really a weird term. Especially with how it's actually used. But it just means that a classification (putting individuals into a group such as gays or African Americans) should be viewed suspiciously by judges. And it's only reserved for a few classes.

Right now sexual orientation is not a suspect class nor is it reviewed under any heightened form of scrutiny. It's just reviewed under rational basis. The Court hasn't added any suspect classes since the 1970s. So if sexual orientation does get added it's a big deal.  


[ Parent ]
Thank you so much. (2.00 / 4)
I was looking at "suspect class" from the standpoint of that it was suspicious to classify the group based on whatever (gender, race, religion) and couldn't make sense of it.  Although this:

House Republicans filed a brief alleging that her sexual orientation was "a choice" because she was married to a man before coming out as a lesbian and falling in love with Spyer.

makes my erroneous "definition" make sense, too.  :(

"When Fascism comes to America, it will come wrapped in teh stupid and waving a gun" ~ Esteev on Wonkette


[ Parent ]
Precisely. I would also add that gender (2.00 / 2)
is not a suspect class, but considered to be a "quasi-suspect class".  That is why intermediate scrutiny is applied to gender discrimination, rather than strict scrutiny.

I am for the individual over government, government over big business and the environment over all. -- William O. Douglas

[ Parent ]
*presumptively unconstitutional (2.00 / 4)
Whoops. I was saying that a law that classifies say bakers shouldn't be considered presumptively unconstitutional - because there's no invidious discrimination there

[ Parent ]
Wow Scottie (2.00 / 8)
That's a beautiful summary. It's great to read a summary that is easy to understand, but doesn't make me feel like you think I'm an idiot. :) Of course, now I sound a bit idiotic as I'm not sure if that made sense. LOL

Since I don't know how to hotlist, let alone find it again, I bookmarked this diary in a special file so I can find it again as time goes by. I'm looking forward to future updates.






Come visit us at our NON political blog jellybeansofdoom.com


What a terrific amount of information in an easy-to-understand (2.00 / 6)
format. I don't know anything about law, but you have done a brilliant job, Scottie, of explaining these complex issues in a down-to-earth, cogent manner that even I can understand. I think it's even an advantage that you had to teach yourself all this legal stuff, so that you know how to get the material across to those who don't have legal training.

I'm so thrilled for you that you landed this dream job, and that you are blossoming so nicely. Keep up the fabulous work.

Wer kämpft, kann verlieren. Wer nicht kämpft, hat schon verloren.
                       - Bertolt Brecht


A picture is worth how many words? (2.00 / 5)

Fear is the only reason for opposition to either.

I don't know whether this round of SCOTUS encounters will solve this issue, but I do know that it is following the same path as the latter.

Keep the faith. in 1958 4% supported interracial marriage, today it is 94%, including 66% of those who voted no in 1958.

John Askren - "Never get into a pissing match with a skunk."


A scarier statistic is that 6% feel that interracial marriage is wrong. (2.00 / 6)


Words have meaning. Our words will reflect what is in our souls.


[ Parent ]
Not really. (2.00 / 4)
It has come so far so fast - in any realistic expectation - that lingering opinions are barely the point (I may have gotten the 94% wrong as well, the stats are in other comments recently - there it is - about 88% today following the trendline). what is amazing is how many folks who more tolerant people would never expect to change their opinions already have.

3% of people across social, national and political boundaries consistently answer yes to the question "would you kill someone if god told you to?" in a survey held for almost a century. There will always be some margin of humanity who hold similarly irrational views no matter what topic is presented.

It is far more staggering that an issue like inter racial marriage has so virtually healed itself. This has been far more a trigger issue than virtually any other in not only modern times but in very, very recent times. It only crossed the 50/50 line since my teenage son was born, meaning many Democrats were "no" votes only yesterday.

Most tellingly, I think, is that this trend continued during the Obama administration. A period where many equality advocates feared a reversal in race relations. Something like 30 million Americans changed their views on this topic while - and in many cases I believe because - the Tea Party rattled its chromatically challenged sabre.

John Askren - "Never get into a pissing match with a skunk."


[ Parent ]
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