Showing posts with label DOMA. Show all posts
Showing posts with label DOMA. Show all posts

September 1, 2013

For Those Selfish Gays Not Backing Gay Marriage" I will Not Trust them with baby sitting my dog"

When same-sex marriage was legalized in New York State, it put pressure on gay and lesbian couples to marry, the author says.
All legally wed gay couples, no matter which state they live in, are entitled to the same U.S. federal tax benefits as married heterosexual couples, the Obama administration said on Thursday.
It seems to me that we have reached the point with a gay friendly president and administration, including the people he has appointed for major departments, that gay married couples in which ever state can obtain most if not all of the federal benefits given to heterosexual married couples by the government. All that was on it’s way was DOMA and then to have enough states offering gay marriage for this to be possible and it is today.
We continue the fight that every state honors those marriages but more than that so that it’s citizens that are gay are not discriminated from getting married.

 This is in thanks to the gays that wanted to be married but most of the weight against DOMA came from straights and gays singles like myself who do not see marriage in the cards. We are fighting for it because it is the right thing and because we don’t want discrimination attached to being gay. Those 
gays that oppose it on self serving reason are just that selfish and are not the type of people that I would want to baby sit my dog (if I had one now). At times we have to see the better good particularly when we talk about history breaking chains that have bound us for centuries and with is there comes a bunch of other binds that attaches everyone.

The U.S. Treasury ruling, following a landmark Supreme Court decision in June, means that whether a married gay couple lives in New York, which recognizes gay marriage, or Oklahoma, which does not, federal tax benefits and responsibilities apply.
The Supreme Court on June 26 invalidated a key portion of a 1996 federal law, known as the Defense of Marriage Act, which had defined marriage as between a man and a woman.
There was some uncertainty after the Supreme Court ruling about how the tax status of gay married couples would be treated in dozens of states that have laws against gay marriage.
"Today's ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve," Treasury Secretary Jack Lew said.
There are about 130,000 same-sex married couples in the United States, according to estimates from the Census Bureau.
Gay rights backers said the ruling could prompt same-sex couples in states where gay marriage is not legal to travel to states where it is recognized to wed.
"We will see many more couples from the more than 30 states without marriage equality come to New York," said Nathan Schaeffer, executive director of the Empire State Pride Agenda.
Under the ruling, effective September 16, gay married couples may file amended tax returns to change their filing status going back to tax years 2010, 2011 and 2012 to seek possible tax refunds, the Treasury Department said in a statement.
A Supreme Court ruling in June made California the 13th of the 50 U.S. states to recognize gay marriage. The District of Columbia also recognizes gay marriage. Thirty-five U.S. states have laws on their books restricting marriage to a man and a woman.
"With today's ruling, committed and loving gay and lesbian married couples will now be treated equally under our nation's federal tax laws, regardless of what state they call home," said Human Rights Campaign president Chad Griffin.
The ruling means legally married same-sex couples may choose to file their federal taxes as married filing jointly or married filing separately.
Marriage status under federal tax law brings both benefits and penalties. On the plus side, legally married spouses are exempted from the federal estate tax. On the other hand, some gay couples above a certain income threshold may face the "marriage penalty" that some heterosexual couples confront.
An anti-gay marriage group denounced the ruling.
"The Obama administration is intent on forcing same-sex 'marriage' on an unwilling public," said Brian Brown, president of the National Organization for Marriage.
While the ruling brings clarity to federal tax returns, it could cause confusion for state returns filed by gay married couples in states that do not recognize their marriages.
In 24 of the states that do not recognize gay marriage, the law requires taxpayers to refer to federal tax returns, setting up a clash between state and federal authorities, the Tax Foundation, a conservative leaning think tank said in a report.
"Today's ruling will likely create administrative headaches for state taxing authorities in states that do not recognize same-sex marriages, because most state income tax regimes begin with federal taxable income as the starting point," Marvin Kirsner, a tax attorney at Greenberg Traurig, wrote in an email.
"States are going to have to issue guidance and I do think political opposition will arise," said Elizabeth Malm, an economist at the Tax Foundation, a free market think tank.
President Barack Obama and many of his fellow Democrats back gay marriage, but the number of supporters in both parties has been increasing in recent years. Republicans were parties to the Supreme Court lawsuit over the Defense of Marriage Act, but were mostly quiet after the court ruled.
A spokesman for John Boehner, the Republican speaker of the U.S. House of Representatives, said he had no comment on the latest ruling announced by the Treasury Department.
Separately on Thursday, the U.S. Department of Health and Human Services said same-sex spouses would have access to coverage in the nursing home where their spouse lives under privately run Medicare health insurance plans.
Other government agencies are expected to make announcements soon to square their policies with the Supreme Court ruling.
For example, the Social Security and Veterans administrations have statutes that turn to state law in defining marriage. Gay marriage backers are awaiting clarification from those agencies on treatment of legally married gay couples.
Adam Gonzalez
(also source and Reporting by Kevin Drawbaugh and Kim Dixon; Additional reporting by Edith Honan)

July 3, 2013

No DOMA Has Created a Rift in The GOP

When the Supemes struck down DOMA bringing marriage to California and stopped making marriage illegal on the eyes of the federal governmenmt it brought tears to many including the Republican party.

Now that what we have been saying is turning to be true, that is that gay marriage is a civil/human right and you can’t be denied with all the protections it adffords and then not be discrimninating against gay american citizens.  Now that is legally true the Feds no longer against same sex marriage and then, this is just the door opening up, next we need to walk in and be made at home, because it is home.

Some of the GOP has gotten the message also and thus with diffferent opinions of what to do is putting a rift between Republicans with common sense and hard heads that still believe a women’s place is in the home and that men are superior to women. For those it will bne hard to change on something that they thought all their life’s and preached wild configurations of what a gay person is.

 The  GOP presidentials wanabe have carefully staked out different and sometimes muddled stances on marriage, with some offering measured responses to the court’s ruling, others downplaying the issue and a third group doubling down on the GOP’s long-held social conservatism.

“As a country, we can agree to disagree,” Kentucky Senator Rand Paul told ABC News after the ruling. “That’s kind of where we are as well. The party is going to have to disagree on some of these issues.” But days later he changed his tune in a visit to South Carolina, an early 2016 primary state where ambivalence on gay marriage doesn’t play well. “If we have no laws on this, people will take it to one extension further—does it have to be humans?” Paul joked to conservative broadcaster Glenn Beck.
For many Republicans, the challenge will be to adopt a stance on marriage that satisfies conservatives without alienating socially moderate swing voters. “I appreciate that many Americans’ attitude towards same-sex marriage have changed in recent years,” Florida Senator Marco Rubio said in a carefully worded statement after the ruling. “I respect the rights of states to allow same-sex marriages, even though I disagree with them. But I also expect that the decisions made by states like Florida to define marriage as between one man and one woman will also be respected.”
Similarly, New Jersey Governor Chris Christie denounced judicial meddling such as the court’s decision as “incredibly insulting” to the bipartisan congressional majorities which passed the DOMA. Like Rubio, Christie argued the issue should be decided by the voters of individual states and their elected representatives. “If the people of New Jersey want to amend our Constitution in order to make same-sex marriage legal and permissible in the state they have every right to do it, and the only people who can give them that opportunity is the New Jersey State Legislature,” he said. “I’d vote against it when I went into the ballot, but I wouldn’t object to it.”
As Paul, Rubio and Christie tried to carve out a politically tenable position, other Republicans have just declined to address the issue. “I haven’t studied their decision,” said Ohio Governor John Kasich. “As I think you all know, I believe in the traditional sense of marriage…I don’t have any more to say than that.” A spokesman for Wisconsin’s Scott Walker told reporter David Catanese that the state’s economic turnaround was “his only priority.” Louisiana Gov. Bobby Jindal has also stayed out of the fray.
Then there were the likely presidential contenders who courted the segment of the base whose signal issues are social. Rick Santorum, who surfed a wave of evangelical support to a runner-up finish in the 2012 race, said he was “very disappointed” with the decision, and vowed to “fight for a definition of marriage that gives children their birthright, a mom and a dad, and our country the best chance for a great future.”
But Santorum is more a relic of the GOP’s past than a glimpse of its future. A belief in traditional marriage has been one of the GOP’s guiding principles since the genesis of the gay rights movement. The party platform, adopted at the 2012 convention, calls the “court-ordered redefinition” of marriage an “assault on the foundations of our society.” And while the party is often racked by intramural squabbles over issues like foreign policy or immigration, its rejection of gay marriage has, until recently, been inviolable.
This is now changing. Republicans like Ohio Senator Rob Portman, former Florida governor Jeb Bush and Alaska Senator Lisa Murkowski have joined a growing number of Americans to express their support for same-sex marriage, though they have couched their support for gay marriage in the conservative language of federalism. In March, joining a wave of Republican elites urging moderation on marriage, Bush said he believes states should decide whether to allow gay marriages. He also faced down an evangelical confab in Washington last month to argue that “ families don’t look all the time like they used to, and that’s okay.”
To a degree, the careful jockeying mirrors the evolutionary state Democrats were at during 2008 race, when Hillary Clinton and Barack Obama were debating the finer points of civil unions. At that point both opposed same-sex marriage; since then, the Democratic Party’s elected officials have undergone a swift and total transformation. It is difficult to imagine a serious Democratic contender opposing gay marriage in the years ahead, now that the party has enshrined support for marriage equality into its platform. Obama completed his “evolution” on the issue last year after Vice President Joe Biden announced his own support for gay marriage. When former Secretary of State Hillary Clinton endorsed same-sex marriage in March, a month after leaving the Obama administration, she became the last of the top-flight 2016 contenders to come out in support of the concept.
Given the shift in public opinion, many top Republicans are trying to at least minimize the damage the issue can inflict. ”The smart candidates will shove this as far down on the issue list as fast as they can,” says Rick Wilson, a Republican campaign consultant in Florida. “It only cuts against us.” 
Source: Time

June 26, 2013

DoMa DoWn Prop 8 DoWn & How it ALL Went DoWn

The US Supreme Court has struck down a law that defines marriage as between a man and a woman only, in a landmark ruling.
The court's 5-4 vote said the Defense of Marriage Act, known as Doma, denied equal protection to same-sex couples.
The court also declined to rule on a California ban on same-sex marriage known as Proposition 8. The decision paves the way for gay unions there.
Opinion polls show that most Americans support gay marriage.
Wednesday's decisions do not affect the bans on same-sex marriage enshrined in the constitutions of more than 30 US states.
Twelve US states and the District of Columbia currently recognise gay marriage.
'Doma writes inequality'
The Doma decision means that legally married gay men and women are entitled to claim the same federal benefits available to opposite-sex married couples. 
On Wednesday morning, crowds gathered outside the Supreme Court hours before the rulings were due, in the hope of getting a seat inside the courtroom.
The legal challenge to Doma was brought by New York resident Edith Windsor, 83.
She was handed a tax bill of $363,000 (£236,000) when she inherited the estate of her spouse Thea Speyer - a levy she would not have had to pay if she had been married to a man.
"Doma writes inequality into the entire United States Code," Justice Anthony Kennedy wrote in Wednesday's ruling.
"Under Doma, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways," the decision added.
"Doma's principal effect is to identify a subset of state-sanctioned marriages and make them unequal."
Lower courts also ruled in Ms Windsor's favour, saying that Doma did not treat all married couples equally.
In the wake of the ruling on Doma, US President Barack Obama, who is on a state visit to Senegal, tweeted: "Today's DOMA ruling is a historic step forward for #MarriageEquality #LoveIsLove"
The challenge to Doma did not address the question of whether same-sex marriage is constitutional.
'No authority'
Proposition 8 is a ban on gay marriage passed by California voters in November 2008, just months after the state's supreme court decided gay marriage was legal.

Two same-sex couples then launched a legal challenge against Proposition 8. But as the state of California refused to defend it, the group that sponsored the measure stepped up to do so.

On Wednesday, the US Supreme Court said a private party did not have the right, or "standing", to defend the constitutionality of a law.

"We have no authority to decide this case on the merits," Chief Justice John Roberts wrote in the opinion, which was also decided by a margin of 5-4, though not along ideological lines.
The court also said the party defending the ban could not demonstrate that they would suffer injury if the law were to be struck down.
The four dissenting justices said they believed the court should have addressed the constitutional question of same-sex marriage before them in the Proposition 8 case.
Further litigation could lie ahead for the California ban, analysts say.
About 18,000 same-sex couples were married in California in the less than five months that same-sex marriages were permitted there.
Critics of the measure said Proposition 8 was unconstitutional because it took away previously granted rights from gay and lesbian couples.
Doma was signed into law in 1996 by former President Bill Clinton after it was approved in Congress with bipartisan support.
But it was subsequently struck down by several lower courts.
In 2011, President Barack Obama said that while he would continue to enforce Doma, he ordered his administration not to defend it in court. So Republicans from the House of Representatives argued in favour of the measure.
Last year, President Obama became the first sitting president to publicly endorse same-sex marriage.
Map showing countries where same-sex marriage has been approved

April 26, 2013

Gay Couples in Mass.Can Not Donate For Their Candidate's Like Straight Couples Do


Republican state Rep. Dan Winslow is running for the U.S. Senate in Massachusetts, where gay couples can legally marry. Can a same-sex couple donate to his campaign like straight couples are able to do?
The Federal Election Commission on Thursday said no and cited the Defense of Marriage Act (DOMA) as a reason in its advisory opinion.
DOMA defines marriage as between one man and one woman and states that spouse refers to the person of opposite sex. The Supreme Court in March sounded skeptical about the law, which prevents legally married gay couples from receiving tax breaks, survivor benefits under Social Security and other federal benefits.
The FEC made clear commissioners were prevented from treating donations from same-sex couples the same way it treats those from straight ones, because the gay marriage law doesn't recognize them as spouses.
FEC Chairwoman Ellen Weintraub said in a statement she "very reluctantly voted no" but explained the law gave her no choice, saying DOMA represents a "discriminatory, irrational burden" on political participation by gay men and lesbians who are legally married.
The election commission basically told Winslow to come back if the law on gay marriage changes -- and he sounds eager to do so.
"It's sad that in the 21st Century the federal government is still denying certain people their First Amendment rights as guaranteed under the U.S. Constitution," Winslow sad in a statement. "However, I am encouraged by the FEC's advice that I return to them as soon as DOMA is overturned and they will happily reverse their decision. I strongly believe DOMA will be overturned by the Supreme Court and I look forward to take the FEC up on its offer."
Winslow is one of three Republicans running to succeed Democrat John Kerry, now the U.S. secretary of State. Both parties hold primaries on Tuesday and the general election is June 25.

March 30, 2013

DOMA Layers Talk about Their Arguments Everywhere but The Suprme Ct. Shy or Felt Stupid?

gay marriage argumentTwo men argue over the topic of gay marriage in front of the Supreme Court of the United States, as the nation's highest court heard oral arguments on constitutionality California's Proposition 8, regarding same-sex marriage.
Former Solicitor General Paul Clement, who was chosen by House Republicans to defend the constitutionality of the Defense of Marriage Act before the Supreme Court, had previously argued that people can change their sexual orientation, that marriage is only for couples that can produce children, that gay and lesbian couples could be worse parents than heterosexuals, and that barring same-sex marriage "encourage[s] heterosexual relationships."
But in a sign that the anti-same-sex marriage crowd may be losing faith in its own rhetoric, Clement didn't deploy any of those arguments at the Supreme Court on Wednesday. Instead, he stuck to trying to convince the justices that the Defense of Marriage Act didn't infringe on the states' power. Clement insisted that defining marriage as between one man and one woman was acceptable because the federal government needs to characterize marriage for its own purposes. Clement never bothered trying to prove that excluding same-sex couples from marriage is a valid government interest in and of itself. Consequently, he never had to unleash his most controversial arguments. There was nothing in his case for DOMA that mirrored the apocalyptic conservative language of the last decade warning that same-sex marriage could lead to the downfall of Western civilization.

Clement had good reason to tone it down. A day earlier, former Reagan-era Justice Department official Charles J. Cooper, defending California's ban on same-sex marriage, had not fared so well. When Cooper argued that California was justified in enacting the ban because of "society's interest in responsible procreation," Justice Elena Kagan asked if it would be constitutional to ban marriages between infertile couples. When Cooper argued that it's possible that same-sex marriage harms children, Justice Anthony Kennedy pointed out that there were already more than 40,000 children being raised by same-sex couples in California. Asked by Kennedy and Kagan how same-sex marriage could have a negative effect on "traditional" marriages, Cooper couldn't offer any examples.
Oral arguments may not sway the justices themselves, but they can affect how the public sees the case. And Cooper's case against same-sex marriage looked terrible: not rooted in any evidence, and founded on moral disapproval of homosexuality or simple prejudice.  
Clement had made many of Cooper's arguments in legal briefs he filed months ago with the court in advance of the arguments. But on Wednesday, Clement acted as if the questionable assumptions about homosexuality in his brief didn't exist. He never referred to the argument that sexual orientation is a choice, which the American Psychological Association says is wrong. (This mistaken notion has led to a harmful industry of charlatans who claim they can purge people of their unwanted same-sex attractions.) Clement didn't claim that marriage is only for couples who can procreate—or he might have found himself in the same awkward position as Cooper, trying to explain why the government cannot also ban marriages between couples too old to have children. Clement also didn't assert that being raised by same-sex parents might be bad for children. (The APA, citing social-science research, has stated, "the development, adjustment, and well-being of children with lesbian and gay parents do not differ markedly from that of children with heterosexual parents.") Clement didn't maintain that banning same-sex marriage was necessary to "encourage" heterosexual relationships.
The Democratic appointees on the court did repeatedly attempt to force Clement to defend the underlying anti-gay bias of the Defense of Marriage Act, which was passed in 1996. "Well, is what happened in 1996—and I'm going to quote from the House report here—is that 'Congress decided to reflect and honor our collective moral judgment and to express moral disapproval of homosexuality'?" Kagan said. "Is that what happened in 1996?"
Clement replied that the court shouldn't strike down the Defense of Marriage Act "just because a couple of legislators may have had an improper motive." Clement was in a tight spot. He had to concede that "moral disapproval" was an "improper motive" for the law because of prior Supreme Court decisions finding that "moral disapproval" doesn't justify a law that discriminates against a group of people. But would any supporters of the Defense of Marriage Act deny that their opposition to same-sex marriage was motivated by "moral disapproval" of homosexuality? Of course not. That's the bottom line. 
So Clement avoided looking like a homophobic crank while arguing that same-sex couples shouldn't have the same rights as everyone else. Sticking to the federalism argument may have been a tactical decision to avoid alienating Justice Kennedy, who is sympathetic to gay and lesbian rights. Or it could be that the lawyer chosen by anti-gay advocates to make their case realizes that they don't have much of one left.

March 28, 2013

Majority of Justices Hint at Downfall of DOMA

In a second day of oral arguments on same-sex marriage, a majority of the court raised serious concerns with the Defense of Marriage Act, or DOMA, enacted in 1996 under President Bill Clinton.

Arguments over the last two days on the DOMA case and a separate one challenging California's ban on gay marriage marked the high court's first foray into a delicate and divisive political, religious and social issue in the United States as polls indicate growing public support for same-sex marriage.

In theory, the cases have the potential for the court to take a significant step toward endorsing gay marriage as it gains support in some parts of the country. Based on the arguments, however, a partial victory for gay rights activists seems more likely than the sweeping declaration of same-sex marriage rights they had hoped for.

As demonstrators rallied outside the Supreme Court building for a second day, Justice Anthony Kennedy, a potential swing vote, showed a willingness to invalidate DOMA, which denies married same-sex couples access to federal benefits by defining marriage as between a man and a woman.

He warned of a "real risk" that the law infringes on the traditional role of the states in defining marriage.

A conservative, Kennedy is viewed as a key vote on this issue in part because he has twice authored decisions in the past that were viewed as favorable to gay rights.

In contrast to the ambivalent approach they displayed on Tuesday in arguments about California's Proposition 8 gay marriage ban, the nine justices seemed willing to address the substantive issue in the DOMA case, while also eyeing procedural questions.

The court is not expected to rule on the two cases until the end of June. If the justices were to strike down DOMA, legally married gay couples would be winners because they would have improved access to federal benefits, such as tax deductions.

Justices gave a strong indication they might resolve the Proposition 8 case on procedural grounds, but even that would be viewed as a win for gay rights activists as same-sex marriages in California would likely resume.

What appears highly unlikely is a sweeping declaration of a right for gay people to marry, a possible option only in the California case.

Overall, a majority of the justices made it clear that, while they might not impede the recent movement among some states toward gay marriage, they were not willing to pave the way either.

Nine states now recognize gay marriage, while 30 states have constitutional amendments banning it and others are in-between.

On several occasions over the two days, the justices' own remarks illustrated how quickly attitudes have changed in favor of gay marriage.

During Tuesday's arguments, Justice Antonin Scalia, a conservative, questioned whether there was sufficient data to show that children are not adversely affected if raised by same-sex couples. Likewise, Justice Samuel Alito noted the concept of gay marriage is "newer than cellphones and the Internet."

Offering a liberal perspective, Justice Elena Kagan prompted murmurs of surprise from onlookers on Wednesday when she quoted from a U.S. House of Representatives report written less than two decades ago, at the time DOMA was enacted, that referenced "moral disapproval" of gay marriage.
As attention turned to DOMA on Wednesday, Kennedy made it clear where he stood, referring to DOMA as "inconsistent" because it purports to give authority to the states to define marriage while limiting recognition of those determinations.
His states' rights concerns were echoed by two of the liberal members of the bench, Kagan and Justice Sonia Sotomayor. "What gives the federal government the right to be concerned at all about what the definition of marriage is?" Sotomayor said.
Justice Ruth Bader Ginsburg and Justice Stephen Breyer also raised concerns about the law.
Ginsburg stressed how important federal recognition is to any person who is legally married.
"It affects every area of life," she said.
Comparing marriage status with types of milk, Ginsburg said that a gay marriage endorsed by a state, but not recognized by the federal government, creates two types of marriage, "full marriage, and then this sort of skim milk marriage."
If the court rules on the states' rights issue, the justices could strike down the law without deciding the bigger question of whether DOMA violates the U.S. Constitution's guarantee of equal protection under the law.
On that issue, Kagan spoke of a "red flag" that indicates Congress passed DOMA with the intent of targeting a group that is "not everyone's favorite group in the world."
Various groups are calling for DOMA to be struck down, such as the Business Coalition for DOMA Repeal, whose members include Marriott International IncAetna InceBay Inc, and Thomson Reuters Corp, the corporate parent of the Reuters news agency.
Separately, several conservative justices criticized Obama and his Justice Department for not defending the marriage law in court.
Chief Justice John Roberts questioned whether Obama had "the courage of his convictions" for continuing to enforce DOMA while calling it invalid. 
Mr. Chief Justice also question wether the politicians were eager of “jumping the bandwagon” to endorse Gay Supporters.  He also questioned like bias justices did in the case to give women the right to vote, wether Gays had great representation and though being ahead in the public eye. 

DOMA as Skim MIlk

Under DOMA, Justice Ginzberg said, there were “two kinds of marriage; the full marriage, and then this sort of skim-milk marriage.” (Skim milk is to the DOMA case what broccoli was to Obamacare: nutritious enough in real life, but in the rhetoric of the Justices deficient and faintly repulsive.) Both she and Justice Anthony Kennedy, the Court’s swing vote, talked about the more than eleven hundred federal statutes affected by DOMA, and the real injury that it caused.
File:Ruth Bader Ginsburg, official SCOTUS portrait, crop.jpgIn American jurisprudence, it is state law that says who is married, even if federal law can determine what a married couple can get, like the spousal estate-tax exemption that Windsor, a widow, was denied. (As a New Yorker whose state recognized her marriage, she still paid three hundred and sixty-three thousand dollars more than she would have without DOMA.) The Supreme Court and federal Constitution can play a role—as they did in Loving v. Virginia, when the Court ruled that people could not be denied the right to marry for no reason other than their race. So DOMA has two potential problems: federalism and equal protection. Based on the oral arguments—which can be deceptive—the first alone might be enough to overturn it. Kennedy was openly suspicious of the way DOMA interfered with states’ rights; he would join the Court’s four liberals—Ginsburg, Breyer, Sotomayor, and Kagan, who appear to be against it for a mixture of reasons—for a majority of five.
Paul Clement didn’t have much of an reply; he talked about the value of uniformity while saying that some married couples were different than others; he defended DOMA’s reach in a way that appeared to further offend Kennedy’s sense of federalism. (“I think it is a DOMA problem,” Kennedy said when Clement tried to reassure him.) Justice Alito asked if the government could resolve the dilemma with a measure that “gets rid of the word ‘marriage,’ takes it out of the U.S. code completely,” a reminder that supposed traditionalists, faced with a case they don’t like, can be far more radical than liberals.
Clement was not sent to the Court by the Justice Department, which has more or less thrown up its hands and said that DOMA was, indeed, unconstitutional. The Administration’s withdrawal seemed to annoy the Justices, but, because of various federal precedents, does not seem to present quite as intractable a procedural problem as the “standing” question that may derail this week’s other Supreme Court marriage case, on California’s Proposition 8. The scope of the Prop 8 case also seemed to scare the Justices; after two days of oral arguments, it is the DOMA case that appears more intact. (Tom Goldstein, of SCOTUSblog, suggested that the Justices might send Prop 8 back to the lower courts for reconsideration in light of whatever they decide in Windsor.) The solicitor general, Donald Verilli, who under normal circumstances is the law’s advocate, showed up to tell the Justices that DOMA meant “that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.” That is not just a hypothetical example, as Staff Sergeant Tracy Dice Johnson learned when her wife, Sergeant Donna Johnson, was killed in Afghanistan, last fall.
What kind of marriage did the two Sergeant Johnsons have? One in which Tracy had no right to the wedding ring that her wife was wearing when she died, but one that her mother-in-law understood well enough to insist to the Army that Tracy be the one to accompany her daughter’s body home, where she handed the ring to her. One sees the two answers there, too, as in the Windsor case. Outside of the Court, Windsor was asked about a round pin she was wearing. She told the story about how, in 1967, Thea Spyer asked what her co-workers—at IBM, where Edith was one of the few women programmers—would say if she showed up with an engagement ring: “I said, They’d want to know who is he and where is he and when do we meet him.” And so Spyer—“my beautiful, sparkly Thea”—“gave me a circle of diamonds, instead of a diamond ring.” Their engagement lasted forty years until their wedding, four decades later, two years before Spyer died.
Everything that makes a marriage real seemed present in Windsor and Spyer’s partnership—everything that reflects the state’s interest in people being married, like the stable households they set up and the way they can, from the space of their home, engage with their community and look out for each other. After Spyer fell ill with multiple sclerosis, Windsor cared for her. And, though it may be irrelevant legally, they had the qualities we like about marriage, like love and joy. If, as Senator Rob Portman and others have illustrate, getting to know a gay or lesbian person can have a transformative effect, just introducing Windsor to the public is its own victory.
But it’s not enough—it’s not what those marriages deserve—to just rhapsodize about how wifely, or husband-like, someone was. Legal rights matter. “So it’s just the word ‘marriage’?” Alito asked. Not just the word. Ginsburg’s question, and the palpable injustice in her skim-milk answer, are why the Court must overturnDOMA. It was the skim milk souring Edith Windsor’s very real marriage. “In the midst of my grief, I realized that the federal government was treating us as strangers,” Windsor said. A circle of diamonds is not really a diamond ring.

March 27, 2013

As of Wednesday it Looks Bad for D.O.M.A.

U.S. Supreme Court building

Concluding two days of intense debate, the Supreme Court signaled Wednesday it could give a boost to same-sex marriage by striking down the federal law that denies legally married gay spouses a wide range of benefits offered to other couples.
As the court wrapped up its remarkable arguments over gay marriage in America, a majority of the justices indicated they will invalidate part of the federal Defense of Marriage Act - if they can get past procedural problems similar to those that appeared to mark Tuesday's case over California's ban on same-sex marriage.
Since the federal law was enacted in 1996, nine states and the District of Columbia have made it legal for gays and lesbians to marry. Same-sex unions also were legal in California for nearly five months in 2008 before the Proposition 8 ban.
Justice Anthony Kennedy, often the decisive vote in close cases, joined the four more-liberal justices in raising questions Wednesday about a provision that defines marriage as the union of a man and a woman for purposes of federal law.
It affects more than 1,100 statutes in which marital status is relevant, dealing with tax breaks for married couples, Social Security survivor benefits and, for federal employees, health insurance and leave to care for spouses.
Kennedy said the Defense of Marriage Act appears to intrude on the power of states that have chosen to recognize same-sex marriages. When so many federal statutes are affected, "which in our society means that the federal government is intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody," Kennedy said.
Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and "skim-milk marriage."
If the court does strike down part of DOMA, it would represent a victory for gay rights advocates. But it would be something short of the endorsement of gay marriage nationwide that some envisioned when the justices agreed in December to hear the federal case and the challenge to California's ban on same-sex marriage.
Still, the tenor of the arguments over two days reflected how quickly attitudes have changed since large majorities in Congress passed the federal DOMA in 1996 and President Bill Clinton signed it into law. In 2011, President Barack Obama abandoned the legal defense of the law in the face of several lawsuits, and last year Obama endorsed gay marriage. Clinton, too, has voiced regret for signing the law and now supports allowing gays and lesbians to marry.
In 1996, the House of Representatives' report on the legislation explained that one of its purposes was "to express moral disapproval of homosexuality." Justice Elena Kagan read those words in the courtroom Wednesday, evoking a reaction from the audience that sounded like a cross between a gasp and nervous laughter.
Kagan's quotation gave lawyer Paul Clement, representing the Republican-controlled House of Representatives that has taken up defense of the law in place of the administration, some uncomfortable moments at the lectern.
"Does the House report say that? Of course, the House report says that. And if that's enough to invalidate the statute, then you should invalidate the statute," Clement said. But he said the more relevant question is whether Congress had "any rational basis for the statute." He supplied one: the federal government's interest in treating same-sex couples the same no matter where they live.
Clement said the government does not want military families "to resist transfer from West Point to Fort Sill because they're going to lose their benefits." The U.S. Military Academy at West Point is in New York, where same-sex marriage is legal, and Fort Sill is in Oklahoma, where gay marriages are not legal.
Opposing Clement was the Obama administration's top Supreme Court lawyer, Donald Verrilli, who said the provision of DOMA at issue, Section 3, impermissibly discriminates against gay people.
"I think it's time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law," Verrilli said.
Both Verrilli and Roberta Kaplan, the lawyer for Edith Windsor, the 83-year-old New York woman who sued over DOMA, told the court that views about gay people and marriage have shifted dramatically since 1996 when the law was approved.
"Why are you so confident in that judgment? How many states permit gay couples to marry?" Justice Antonin Scalia asked Kaplan.
Nine, she said.
"So there's been a sea change between now and 1996," Scalia said, doubtfully.
But Chief Justice John Roberts jumped on the idea of a rapid shift in opinion to suggest that perhaps gays and lesbians do not need special protection from the court.
"As far as I can tell, political leaders are falling all over themselves to endorse your side of the case," Roberts said.
The justices stepped into the dispute after lower federal courts ruled against the measure.
The DOMA argument followed Tuesday's case over California's ban on same-sex marriage, a case in which the justices indicated they might avoid a major national ruling on whether America's gays and lesbians have a right to marry. Even without a significant ruling, the court appeared headed for a resolution that would mean the resumption of gay and lesbian weddings in California.
Supreme Court arguments are the most visible part of the justices' consideration of the cases before them, but they often play a relatively small role in rulings compared to the mountain of legal briefs that are filed in the weeks leading up to the public sessions.
Lawsuits around the country have led four federal district courts and two appeals courts to strike down DOMA's Section 3, which defines marriage. In 2011, the Obama administration abandoned its defense of the law but continues to enforce it.
The change in position led the court to consider the related questions of whether the House Republican leadership can defend the law in court because the administration decided not to, and whether the administration forfeited its right to participate in the case.
Roberts and Scalia seemed most interested in this sort of outcome, and the chief justice offered perhaps the most pointed comment of the day when he wondered why Obama continues to enforce a law he believes is unconstitutional.
"I don't see why he doesn't have the courage of his convictions and execute not only the statute but do it consistent with his view of the Constitution, rather than saying, 'Oh, we'll wait till the Supreme Court tells us we have no choice,'" Roberts said.
If the Supreme Court finds that it does not have the authority to hear the case, Windsor probably would still get the $363,000 estate tax refund for which she sued because she won in the lower courts. But there would be no definitive decision about the law from the nation's highest court, and it would remain on the books.
Windsor, who goes by Edie, married Thea Spyer in 2007 in Canada after doctors told them that Spyer would not live much longer. Spyer, who suffered from multiple sclerosis for many years, died in 2009 and left everything she had to Windsor.
There is no dispute that if Windsor had been married to a man, her estate tax bill would have been zero. Windsor was in court Wednesday, where she received a hug from House Democratic Leader Nancy Pelosi before the argument started.
The 2nd U.S. Circuit Court of Appeals in New York agreed with a district judge that the provision of DOMA deprived Windsor of the constitutional guarantee of equal protection of the law.
Reflecting the high interest in the cases, the court released an audio recording of Wednesday's argument, just as it did Tuesday for that day's proceedings.
Wednesday's audio can be found at: Tuesday's is at:
A somewhat smaller crowd gathered outside the court Wednesday, mainly gay marriage supporters who held American and rainbow flags. "Two, four, six, eight, we do not discriminate," a group chanted at one point. "If this isn't the time, when is the time? When does equality come into play?" asked Laura Scott, 43, of Columbia, Md.
Wednesday's case is U.S. v. Windsor, 12-307.
Associated Press writer Jessica Gresko contributed to this report.

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