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发帖数: 4174 | 1 http://www.scotusblog.com/2011/08/announcing-symposium-on-same-sex-marriage/
Kali Borkoski Manager
Posted Monday, August 15th, 2011 9:05 am
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Announcing symposium on same-sex marriage
In our third symposium of the summer, guest bloggers will examine the future of the Defense of Marriage Act and Proposition 8 at the Court.
Continuing with our summer symposia, for the next two weeks SCOTUSblog will be hosting an on-line debate on the topic of same-sex marriage. Although neither the federal Defense of Marriage Act (DOMA) nor California’s Proposition 8 (now embodied in Article 1 Section 7.5 of California’s Constitution) is currently before the Court, challenges to both have been percolating in the lower courts in California, Massachusetts, New York, Connecticut, and elsewhere and are likely to reach the Court soon, even if not this Term.
During this symposium, guest bloggers will weigh in on how the Court is likely to approach the question of same-sex marriage. Authors will consider, among other things, whether the issue of same-sex marriage is ripe for the Court’s review, what standard of review the Court should use if it does reach the merits, and how the Court’s decisions in cases such as Romer v. Evans and Lawrence v. Texas will affect its views on the constitutionality of DOMA and Proposition 8, as well as broader questions about federalism and religious liberty.
We are grateful to the following authors, listed in alphabetical order, who have agreed to contribute to our symposium:
Carlos Ball – Rutgers University School of Law
Bob Barr - Former Representative for Georgia’s Seventh Congressional District
Thomas Berg – University of St. Thomas School of Law
Dale Carpenter – University of Minnesota Law School
Erwin Chemerinsky – UC Irvine School of Law
David Cruz – USC Gould School of Law
William C. Duncan – Marriage Law Foundation
John Eastman – Chapman University School of Law
William Eskridge – Yale Law School
Maggie Gallagher – Institute for Marriage and Public Policy
Charles Fried – Harvard Law School
Andrew Koppelman – Northwestern University School of Law
Pamela Karlan – Stanford Law School
Robert Levy – Cato Institute
Laurence Tribe – Harvard Law School
Brian Raum – Alliance Defense Fund
Ruthann Robson – CUNY School of Law
Robin Wilson – Washington & Lee School of Law
Kenji Yoshino – New York University School of Law | g********d
发帖数: 4174 | 2 摘要： 我理解是最高法院会废除DOMA SECTION 3，但不会强迫所有州承认同性婚姻。他们会找借口不接PROP 8的案子。
Andrew Koppelman Guest
Posted Friday, August 19th, 2011 8:44 am
Why the Supreme Court will strike down DOMA
Northwestern Law School’s Andrew Koppelman argues that the Supreme Court
will probably declare the Defense of Marriage Act unconstitutional.
The following contribution to our same-sex marriage symposium is written by
Andrew Koppelman, John Paul Stevens Professor of Law and Professor of
Political Science at Northwestern University. He has written many books and
articles, including Same Sex, Different States: When Same-Sex Marriages
Cross State Lines (Yale U. Press 2006).
—
The Supreme Court is not likely to impose same-sex marriage on the entire
country, so Perry v. Schwarzenegger has been a quixotic case from the
beginning. That’s why experienced gay rights litigators were so reluctant
to support it. The Court is likely to find some procedural trick in order
to avoid hearing the case at all.
The challenge to the Defense of Marriage Act (DOMA) is different. The Court
can strike down this stupid and brutal law without bringing same-sex
marriage to any state that does not want it. Its unconstitutionality
follows from recent opinions by Justice Kennedy, the swing vote on the Court
, and I predict that he will write the opinion striking the law down.
DOMA, enacted in 1996, was a reaction to a Hawaii Supreme Court case that
seemed likely to legalize same-sex marriage there. A state referendum
stopped that, but the case focused public attention on the marriage issue
and so triggered a national movement. A quarter of all Americans now live
in states that recognize same-sex marriage or its functional equivalent.
In pertinent part, DOMA defines marriage for federal purposes as “only a
legal union between one man and one woman as husband and wife.” (It also
declares that states don’t have to recognize same-sex marriages from other
states, but that was already the law.) Same-sex spouses may not file joint
tax returns. The debts of same-sex spouses incurred under divorce decrees
or separation agreements are dischargeable in bankruptcy. Same-sex spouses
of federal employees are excluded from the Federal Employees Health Benefits
Program, the Federal Employees Group Life Insurance program, and the
Federal Employees Compensation Act, which compensates the widow or widower
of an employee killed in the performance of duty. Same-sex spouses are the
only surviving widows and widowers who do not have automatic ownership
rights in a copyrighted work after the author’s death. Same-sex spouses
lack federal protection against enforcement of due-on-sale clauses, which
allow a lender to declare the entire balance due and payable if mortgaged
property is transferred, and which could compel the loss of the family home
if the holder of the mortgage died and the spouse inherited the property.
Same-sex spouses are denied the benefit of the Family and Medical Leave Act
of 1993, which provides for unpaid leave to employees for “care for a
spouse.” Same-sex spouses may not receive benefits under the Social
Security Act’s Old Age, Survivors, and Disability Insurance Program. Same-
sex spouses are denied preferential treatment under immigration law and,
therefore, are the only legally married spouses of American citizens who
face deportation. With the abolition of “don’t ask, don’t tell,” it is
only a matter of time before, for the first time in American history, the
lawful spouse of a soldier killed in battle is denied any survivor’s
benefits.
By the end of 2008, approximately 32,000 same-sex couples had married in the
United States, and 80,000 more were domestic partners, reciprocal
beneficiaries, or united in civil unions. That creates a situation that did
not exist immediately after DOMA’s enactment: a group of actual people
whom the law hurts. They are the ones challenging DOMA.
The plaintiffs in these cases, Gill v. Office of Personnel Management and
Windsor v. United States, include:
- a police officer whose family would receive no benefits, including the
education benefit for surviving spouses, if she were killed in the line of
duty.
- the surviving spouse of Representative Gerry Studds, the first openly gay
man to serve in Congress, who was denied both health insurance and the
normal survivor annuity — the only widower of a member of Congress to be
refused these benefits.
- elderly retirees who do not have the Social Security benefits they would
have received if their spouse were of the opposite sex.
- a widow who paid $363,000 in federal taxes on her inheritance from her
wife, a tax that would never have been imposed on an opposite-sex spouse.
The district court in Gill held that DOMA violates the Fourteenth Amendment,
which provides in pertinent part that no state may “deny to any person . .
. the equal protection of the laws.” The Supreme Court will likely agree.
The Equal Protection Clause is the reason the Court has struck down laws
that impose certain inequalities, such as the race discrimination that was
challenged in Brown v. Board of Education. But it does not make sense to
condemn all inequalities imposed by the law. All laws classify — and in
that way make some citizens unequal to others. A law that forbids ten-year-
olds from driving or voting treats them unequally from those who are
permitted to do these things.
So the law only presumes laws to be unconstitutional if they discriminate on
the basis of race, sex, or a few other “suspect classifications.” Eric
Holder’s February 23 letter to House Speaker John Boehner, declaring that
the Obama Administration will no longer defend the constitutionality of DOMA
, argues that the factors that indicate suspectness in each of those cases
also apply to sexual orientation: a history of purposeful discrimination,
immutability, limited political power, and a conclusion that the trait in
question bears no relation to ability to perform or contribute to society.
The Court hasn’t recognized a new suspect classification in decades, but it
won’t need to take that step in order to strike down this law. For non-
suspect classifications, the constitutional test is what is called rational
basis review: the law will be upheld in court if it is “rationally related
to a legitimate state interest” (New Orleans v. Dukes). This usually means
that the law will be upheld. In a few rare cases, however, the Court has
used the rational basis test to strike down laws. In these cases, the Court
deploys what scholars have called “rational basis with bite,” to
distinguish it from the toothless test that is ordinarily applied. This is
the basis on which the Court is likely to invalidate DOMA.
The basis for this greater severity of scrutiny is not always clear. One
line of decisions offers an explanation. These hold that a law is
unconstitutional if it reflects a bare desire to harm a politically
unpopular group. USDA v. Moreno invalidated a 1971 amendment to the Food
Stamp Act that excluded from participation in the food stamp program any
member of a household whose members are not all related to each other.
Congress, the legislative history showed, was attempting to prevent “hippie
communes” from receiving any stamps. The Court held that this purpose was
fatal to the statute: “[I]f the constitutional concept of ‘equal
protection of the laws’ means anything, it must at the very least mean that
a bare congressional desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest.” The law in Moreno had no
purpose other than to keep federal benefits out of the hands of a group
Congress did not like.
Moreno became relevant to the gay rights question in Romer v. Evans, a 1996
case that struck down an amendment to the Colorado Constitution (referred to
on the ballot as “Amendment 2”). The amendment declared that neither the
state nor any of its subdivisions could prohibit discrimination on the
basis of “homosexual, lesbian or bisexual orientation, conduct, practices
or relationships.” The amendment, Justice Kennedy’s opinion for the Court
observed, “has the peculiar property of imposing a broad and
undifferentiated disability on a single named group.” The Amendment seemed
to “deprive[] gays and lesbians even of the protection of general laws and
policies that prohibit arbitrary discrimination in governmental and private
settings.” The Court concluded that “Amendment 2 classifies homosexuals
not to further a proper legislative end but to make them unequal to everyone
else.” Quoting Moreno, it found that the broad disability imposed on a
targeted group “raise[d] the inevitable inference that the disadvantage
imposed is born of animosity toward the class of persons affected.” Romer
’s holding may thus be summarized: If a law targets a narrowly defined
group and then imposes upon it disabilities that are so broad and
undifferentiated as to bear no discernible relationship to any legitimate
governmental interest, then the Court will infer that the law’s purpose is
simply to harm that group, and so will invalidate the law.
DOMA’s definitional provision and the amendment invalidated in Romer have
telling similarities. Like the Colorado amendment, DOMA “identifies
persons by a single trait [membership in a same-sex marriage] and then
denies them protection across the board.” For the first time in American
history, DOMA created a set of second-class marriages, valid under state law
but void for all federal purposes. The indiscriminate exclusion of a class
of valid state marriages from all federal recognition is “unprecedented in
our jurisprudence.” DOMA cuts off federal benefits to a targeted,
politically unpopular group, just like the law in Moreno, and it does so in
a remarkably broad and undifferentiated way, just like the law in Romer.
Some of the government’s rationales for the law that were stated in the
House Committee Report —“defending traditional notions of morality, and
preserving scarce government resources” — were presented and rejected in
Moreno and Romer. (This analysis is elaborated here.)
The Court’s sensitivity to discrimination against gays was also evident in
Lawrence v. Texas, a 2003 Kennedy opinion striking down a law against
homosexual sex. Kennedy thought that Romer was pertinent because “[w]hen
homosexual conduct is made criminal by the law of the State, that
declaration in and of itself is an invitation to subject homosexual persons
to discrimination both in the public and in the private spheres.”
So it is very easy to imagine Kennedy’s opinion striking down DOMA. It
will simply apply Romer and Lawrence. Attorney General Holder is right that
the “moral disapproval of gays and lesbians and their intimate and family
relationships” evident in the legislative record reflects “precisely the
kind of stereotype-based thinking and animus the Equal Protection Clause is
designed to guard against.” But you don’t need the legislative record.
The wild lashing out at gay families is plain on the face of the statute,
and suffices to show that the law is unconstitutional. | g********d
发帖数: 4174 | 3 Dale Carpenter Guest
Posted Thursday, August 18th, 2011 1:57 pm
Perry as Politics
Dale Carpenter, Professor of Law at the University of Minnesota Law School,
considers the political costs of litigating same-sex marriage state by state
, starting with California’s Proposition 8.
The following contribution to our same-sex marriage symposium is written by
Dale Carpenter. Professor Carpenter teaches constitutional law, the First
Amendment, and sexual orientation and the law at the University of Minnesota
Law School. He is a contributor to the blog, the Volokh Conspiracy.
—
So far, on balance, the Perry litigation has been a setback for the cause of
gay marriage as a matter of politics.
The qualifications to that conclusion are important. “So far” recognizes
the early and tentative stage of the contest. The case may yet result in,
say, a Supreme Court victory declaring a federal constitutional right to
marriage for same-sex couples. Whatever one thinks of the constitutional
arguments for SSM, a Supreme Court mandate would advance the cause by years,
maybe decades, as compared to a state-by-state slog through places like
Mississippi, which voted to ban gay marriage by eighty-six percent to
fourteen percent just seven years ago. Moreover, a Supreme Court victory
could be obtained at this point with little fear of a federal constitutional
amendment reversing it. The public has come too far in supporting SSM for
opponents to be able to muster super-majorities in Congress and three-
quarters of the states against it. There would be a few years of drama after
such a victory, but it would die off given sufficient time, as it has
everywhere else.
“On balance” recognizes that some good has come from the Perry litigation.
It’s a good thing for gay marriage to be seen as the bipartisan and
ultimately conservative cause it is, and Ted Olson’s advocacy has helped
with that. The district court opinion in Perry, by now-retired Judge Vaughn
Walker, was a very fine compendium of the arguments for gay marriage as a
matter of policy. For those who paid attention to it, the trial showed how
lopsided the public-policy arguments and evidence have become. The poverty
of anti-SSM argumentation has likewise been evident in recent legislative
debates about it, in which legislators supporting SSM have been vocal and
articulate while legislators opposing it have been almost completely silent,
as if embarrassed.
Nevertheless, the judgment that the Perry litigation has so far been a net
political loss for the cause is based in part on its unfulfilled promise as
a tool of public education and in part on the retarding effect it has had on
efforts to reverse the ban on SSM in the nation’s most populous state.
Consider first the hope that the litigation might prove to be an important
tool of public education about the need for SSM. Most lawsuits are not
efforts to influence public and legislative debate about the underlying
controversy. But litigation involving controversial causes often is at least
in part “political lawyering.” That is, even when lawyers and their
clients do not expect to win, they do hope their efforts will raise
awareness about the problem. They want to bring attention and sympathy to
their cause in the judiciary and in the public sphere.
Part of the hope for Perry was that it would educate the public about gay
marriage. Having a trial in which SSM opponents could be made to defend
their opposition with reasoned arguments, and then be subject to cross-
examination, would expose the weaknesses of anti-SSM arguments in a way that
thirty-second television ads could never do so. The litigation would show
Americans that SSM was a matter of fundamental constitutional rights.
This political-lawyering hope ran up against two hard realities. One was
that the expected show never had much of an audience. The Supreme Court
ensured that the trial would not be televised. And even if it had been
televised, it would never have the draw of a celebrity murder or prosecution
for infanticide. I’m transfixed by debates about whether social-science
evidence on same-sex parenting is marred by inadequate sample sizes. So are
the ten other people who watch C-SPAN. But the general public in a time of
multiple wars and a Great Recession? Not so much.
The other hard reality for political lawyering in the Perry litigation was
that, as the ballot campaigns involving SSM have shown, Americans are not
convinced to support gay marriage by the assertion that it is a civil or
constitutional right. They first want to know why something they have always
believed in – marriage as the union of one man and one woman – should be
changed. Who would benefit from such a change and why should we care? Who
might be hurt? What about the kids? Yes, the arguments for SSM in Perry
addressed these matters. But the core policy case was obscured by the
doctrinal necessity of casting the cause in the constitutionalese of things
like the appropriate level of generality in the definition of fundamental
rights and whether sexual-orientation classifications should be subjected to
heightened scrutiny.
Liberal neutrality and tolerance – the respect for others’ rights no
matter what underlying moral judgment we make about the way they exercise
those rights – might convince people that the government should stay out of
the bedroom. It will not convince most of them to support SSM because they
do not see marriage as a matter of government neutrality. They see it as a
form of endorsement or approval.
There is no evidence of which I’m aware that the Perry decision, or the
ongoing litigation that produced it, has moved public opinion in California
or anywhere else in the direction of support for SSM. Many gay-marriage
supporters regard Judge Walker’s decision as a wise and sound defense of
constitutional principles. But I don’t know of any gay-marriage opponents,
or even fence-sitters, who read the decision, got to the line that informed
them the matter was now “beyond debate,” and were transformed by it.
Beyond the small world of people who read judicial decisions, most pay no
attention to them. They might have read the first few paragraphs in a
newspaper story about the case, or more likely saw something about it on
television or the Internet. But persuaded to change their views because a
judge rules on a matter of constitutionality? Americans have become
sufficiently skeptical about judges to ignore most of what they do.
That leads to the second consideration about the cost of Perry – delay in
effecting political change. In 2008, when voters approved Prop. 8, gay-
marriage supporters in California suffered a terrible defeat in what seemed
like a winnable ballot fight. It was just a matter of time, they vowed,
before they would put the issue back before the voters and reverse Prop. 8.
The November 2010 election was the next opportunity, but after considerable
internal debate, that date was dismissed as premature except by the most
aggressive activists. An attempt to gather signatures for a 2010 repeal
fizzled when donors scoffed at the idea.
Attention turned to 2012, when President Obama would be back on the ballot,
turnout would be high, and the conditions would be better for repealing Prop
. 8.But now there was another problem. Under the best conditions, qualifying
an amendment for the ballot, waging a sophisticated campaign in several
major media markets, reaching voters in a state with forty million
inhabitants, and getting a majority of them to vote “yes” for gay marriage
, would require thousands of volunteers, a sophisticated campaign
organization, and millions of dollars in donations.
Yet the Perry litigation has sapped enthusiasm for a 2012 repeal of Prop. 8.
Large donors, essential to any such effort, will not give because they
expect that courts will hold Prop. 8 unconstitutional, bringing gay marriage
back to the state and perhaps to the entire country. (And even if savvy
donors don’t believe Perry will ultimately be successful in the courts, the
existence of the litigation is a good excuse to hold off.) Why spend the
money when courts may well take care of the problem? They have adopted a
wait-and-see approach: we’ll see what happens and then consider whether to
donate. Some of these donors have chosen to fund the litigation rather than
a repeal campaign. Some are simply staying on the sidelines.
As the Perry case has begun to drag out, now involving the California
Supreme Court and focusing on preliminary issues like standing, the delay is
proving deadly to any 2012 ballot fight. The voter signatures to qualify an
amendment to the ballot would have to be gathered in early 2012, which
means that a campaign structure would have to be put in place and partially
funded before then. Since there is no chance of a definitive resolution of
the case before early 2012, there is now very little chance that there will
be a serious repeal effort in the fall of 2012.
That means that a repeal would have to be put off until 2014, by which time
we might have some resolution of the litigation. If the litigation is
unresolved, there would be additional pressure for delay by large donors.
If the litigation is successful (at least in bringing back SSM to California
), then there’s no need for a campaign, of course. But suppose the
litigation fails, either in the Ninth Circuit or at the Supreme Court. What
then? A judgment might plausibly be made that a mid-term election is not the
best time to bring gay marriage back to the ballot and that the risk of a
second loss in California, which would be devastating, is too great. At that
point, the next window of election opportunity would be 2016, a full eight
years after the passage of Prop. 8. Additionally, a defeat in the courts
would cast a pall over post-litigation political efforts, weakening the
morale of gay-marriage supporters and undermining whatever persuasive power
might be left to the constitutional-rights argument.
Perry was always a bet. It was a bet that the votes would be there on the
Supreme Court when it reached that point, as it would if the litigation were
successful below. When the Perry case was filed, the national gay civil
rights and legal organizations believed it was a bad bet. So they opposed it
. At the same time, there’s no doubt that the lawyers attacking Prop. 8
have handled the case very skillfully. Their labors have so far produced a
victory in a San Francisco district court, the first win for gay marriage in
a federal forum. I have suggested here that, as a political matter, the
litigation has not generated the hoped-for public awareness and has actually
retarded efforts to repeal Prop. 8 at the ballot box. In sum, the bet doesn
’t look any better now than it did in 2009 when the litigation was filed.
And the case has clouded the political picture in California. For gay-
marriage advocates, the bet may yet pay off in a very big way, but the costs
are rising. | m******1
发帖数: 19713 | | g********d
发帖数: 4174 | 5 Same-sex marriage: The tortuous road to the Supreme Court
The Marriage Law Foundation’s William Duncan describes obstacles to U.S.
Supreme Court review of the constitutional claim for same-sex marriage and
explores the implications of the way these cases seem likely to be presented
to the Court.
The following essay for our same-sex marriage symposium is by William Duncan
, the director of the Marriage Law Foundation. He has represented amici in
Perry v. Schwarzenegger and Commonwealth v. U.S. Department of Health and
Human Services, two federal constitutional challenges to laws defining
marriage as the union of a husband and wife.
—
There is an emerging conventional wisdom that the question of whether the U.
S. Constitution mandates same-sex marriage is going to be resolved in the U.
S. Supreme Court and probably soon. To be sure, this kind of speculation is
not entirely new. In the wake of the Court’s decision in Lawrence v. Texas
there was talk of same-sex marriage being next on the agenda, based
primarily on some expansive language in the majority opinion of that case (
and Justice Scalia’s interpretation of that language in his dissent). That
speculation, of course, ignored important caveats in Lawrence cabining its
effect to private sexual behavior rather than public status.
Two recent lawsuits have made the hypothetical idea of a same-sex marriage
decision by the Court much more real. The first is the well-funded
challenge to California’s marriage amendment, Proposition 8 , brought with
much publicity and which has resulted in significant acclaim for the big-
name attorneys involved. The trial court concluded the state marriage
amendment violated federal constitutional guarantees and an appeal is
pending in the Ninth Circuit.
This case, Perry v. Schwarzenegger, has been presented from the outset as a
vehicle for Supreme Court review of marriage laws. The fast-track intention
of the case’s originators has not materialized though. The first obstacle
was the trial court itself. A series of questionable decisions about
discovery, televising the trial, and use of the recordings of the trial has
stalled progress. More importantly, the Ninth Circuit has asked the
California Supreme Court for an opinion on whether the defendants on appeal
even have standing to bring the appeal. Arguments on that question are
scheduled for next month.
The standing issue is salient since California’s governor and attorney
general refused to defend Proposition 8 because they agreed with the
plaintiffs that it is unconstitutional. The trial court allowed the ballot
measure’s sponsors to intervene but then decided when issuing its opinion
that perhaps they had not properly had standing after all.
The source of this change of heart is not clear but may be intended to
insulate the trial court decision from review. (If the sponsors did not have
standing, there would seem not to have been a controversy for purposes of
Article III standing, though, so if this is a tactical decision it may not
be a successful one.) What it all portends remains to be seen of course, but
the path to the Supreme Court for this case appears more obscure than it
once did.
The second case (or really, set of cases) challenges the definition of
marriage for federal law purposes in the Defense of Marriage Act approved by
Congress in 1996. That Act has only been intermittently challenged since
enactment and never by movement organizations. These groups have been intent
on pursuing a strategy of getting state courts to mandate same-sex marriage
while waiting for a more propitious time to take their case to the Supreme
Court. (There was, in fact, some debate among activists about the wisdom of
the Proposition 8 lawsuit when it was brought.) After the inauguration of
President Obama, whose Administration is publicly opposed to DOMA, the
lawsuits came. The first two were decided in favor of plaintiffs (on novel
grounds) by a federal trial court in Massachusetts and have been
consolidated on appeal at the First Circuit.
Although there has been talk of which case would go to the Supreme Court
first, the challenge to Proposition 8 or the challenge to DOMA, it is not
certain that the intent of the proponents of the DOMA challenge has been to
get Supreme Court review. Since same-sex marriage is relatively confined
geographically, only a few circuits would have to buy the constitutional
claims to accomplish the practical result sought by the lawsuits – forcing
the federal government to recognize state same-sex marriages for federal law
purposes.
This case too has experienced obstacles to its progress and from the same
basic source as those in the Proposition 8 case – the failure of the named
defendants to actually defend the law. This time, the Department of Justice
put up a grudging defense after complaints about a more full-throated
defense of DOMA was initially offered. Then, the Attorney General announced
that the Administration had decided to abandon its defense of DOMA entirely.
This might have thrown the case but for the intervention of Congress,
through the Bipartisan Legal Advisory Group, which is now defending DOMA on
appeal and in subsequent challenges brought by other advocacy groups.
The postulated race to the Supreme Court now looks like an obstacle course
in which the competitors may not even want to finish.
Perhaps the emergence of strong defenders of the challenged laws has made
the assurance of victory less certain and the possibility of creating (what
they would consider negative) national precedent more worrisome to activists
. It would not be surprising if they were to conclude that preserving the
extremely favorable district court decisions secured so far is all that
could be hoped.
Now that a real defense of marriage is being offered in these cases, however
, that outcome might no longer be possible and the Court may get a chance to
weigh in after all. If it does so with both sides being adequately
represented it will be a victory for the rule of law.
It is worth pausing, though, and thinking about the alternative. Not because
it is likely to occur but because it was the intended outcome of many of
the litigants in the case.
That alternative was to have a constitutional challenge to the legal
recognition of the social institution of marriage brought by highly
motivated and well-financed opponents with the collusion of the titular
defendants who would offer none or only a pro forma defense. Thus would the
voters of California and the taxpayers of the United States be deprived of a
say in this most fundamental legal matter.
It worked in state courts in Iowa, California, and Connecticut. In the
former, the attorney general did not bother to defend the state’s marriage
law. In the latter two instances, the attorney generals’ defense was hardly
robust and the failure was noted and relied on by the courts in ruling for
a constitutional right to same-sex marriage.
This amounts, of course, to de facto executive nullification of the laws.
Attractive to litigants, it would be a disaster for our legal system. In an
adversarial system, taking a dive can amount to making law. Where the
executive has not been expressly granted that authority, its exercise by
that branch is illegitimate. But having seen in state courts that it may
work, the temptation to overreach may be overwhelming. That temptation
cannot be entertained and certainly not rewarded.
As important as marriage is, and it is foundational, it’s not the only
thing at stake. If we lose not only marriage but also sustain a grievous
injury to limited government in the process, that would be a double tragedy. | g********d
发帖数: 4174 | 6 Why timing is crucial in the ongoing same-sex marriage cases
Rutgers law professor Carlos Ball argues that it would be better for
marriage equality supporters if the Supreme Court hears a DOMA case before
it considers Perry v. Schwarzenegger.
The following is an essay for our same-sex marriage symposium by Carlos A.
Ball, professor at the Rutgers University School of Law (Newark). Professor
Ball is the author of The Right to be Parents: LGBT Families and the
Transformation of Parenthood (NYU Press), which will be published early next
year. He is also the author of From the Closet to the Courtroom: Five LGBT
Lawsuits That Have Changed Our Nation (Beacon).
—
After federal district court judge Vaughn Walker struck down California’s
Proposition 8 as unconstitutional last August in Perry v. Schwarzenegger, it
seemed that the question of whether states can, consistent with the
Fourteenth Amendment, deny same-sex couples the opportunity to marry was
quickly heading for the Supreme Court. Twelve months later, however, the
Perry case has become bogged down by the question of whether Proposition 8
proponents have standing to defend its constitutionality. Earlier this year,
a panel of the U.S. Court of Appeals for the Ninth Circuit certified a
standing-related question to the California Supreme Court. Given that the
California court is not expected to issue its response until the end of the
year, and that, however the federal appellate court panel subsequently rules
, it is likely that the full Ninth Circuit will review the case en banc, it
will probably be at least a year (and maybe more) before the Supreme Court
is asked to consider hearing the case.
In the meantime, a number of constitutional challenges to Section 3 of the
Defense of Marriage Act of 1996 (DOMA)—the provision that defines marriage
for federal purposes as a union between one man and one woman—continue to
move through the courts. The DOMA litigation that is farthest along is Gill
v. Office of Personnel Management. Last summer, Boston federal district
court Joseph Tauro ruled in Gill that DOMA violated the plaintiffs’ rights
to equal protection. (Judge Tauro, in an accompanying case, also held that
DOMA violated the Tenth Amendment and the Spending Clause.) The plaintiffs
in Gill, seeking to bypass a ruling by a three-judge panel, have filed a
petition with the First Circuit requesting immediate en banc review.
After the Obama Administration announced in February that it would no longer
defend DOMA’s constitutionality in the courts, the Republican leadership
of the U.S. House of Representatives hired former Solicitor General Paul
Clement to defend the statute in Gill and in other DOMA cases brought in
California, Connecticut, and New York. Last month, Clement informed the
First Circuit that the House of Representatives did not oppose an en banc
review of Gill.
In my estimation, the (possible) speeding up of Gill and the slowing down of
Perry is a positive development for marriage equality supporters. This is
because I believe that, as an initial matter, the chances of prevailing
before the Supreme Court in cases like Gill are greater than those of
prevailing in cases like Perry. The issue in Gill is not whether states are
constitutionally required to recognize same-sex marriages, but is instead
whether the federal government can justify its refusal to recognize the
marriages of some Americans but not of others. The Gill plaintiffs are not
claiming that they have a constitutional right to marry; instead, they are
arguing that the federal government lacks a valid justification for denying
benefits under the Social Security Act and the Federal Employees Health
Benefits Program, for example, to some couples (i.e., same-sex ones) who are
married under their states’ laws. This means that in deciding Gill, unlike
in deciding Perry, the Supreme Court would not have to address the more
controversial question of whether the federal Constitution mandates that all
states allow same-sex marriages.
One question that the Supreme Court may tackle in Gill or Perry is whether
the Constitution requires that heightened scrutiny be applied to laws that
make distinctions on the basis of sexual orientation. But here as well,
marriage equality supporters would be better off if the Court grappled with
that question in the context of DOMA rather than in that of Proposition 8.
This is because the Obama Administration is forcefully taking the position
in court that heightened scrutiny should apply to sexual orientation
classifications. In a brief filed last month in Golinski v. Office of
Personnel Management, a case challenging DOMA’s constitutionality that is
before a California federal district court, the Department of Justice
strongly opposed a motion to dismiss filed by the House of Representatives.
In their brief, government lawyers detailed the long history of
discrimination against lesbians and gay men engaged in by federal, state,
and local governments, as well as by private parties. The brief also
explained why lesbians and gay men have limited political power and the
reasons why sexual orientation does not implicate the ability of individuals
to participate in or contribute to society. The executive branch of the
federal government, in other words, is taking the position that laws which
make distinctions on the basis of sexual orientation should be presumptively
unconstitutional.
It is one thing for plaintiffs in cases like Gill and Perry to argue that
sexual orientation classifications merit heightened judicial scrutiny. It is
quite another for the Department of Justice to do the same.
It is widely believed that if the Supreme Court agrees to hear a case
involving same-sex marriage, Justice Anthony Kennedy will cast the deciding
vote. It would seem that Justice Kennedy, given his prior opinions in Romer
v. Evans and Lawrence v. Texas, is aware of the harm that discrimination has
inflicted on lesbians and gay men through the decades. In Romer, Justice
Kennedy was able to look beyond Colorado’s specious claim that a state
constitutional provision (Amendment 2) that denied antidiscrimination
protection to lesbians, gay men, and bisexuals (and no others) did nothing
more than deprive them of “special rights.” Indeed, as he made clear in
his majority opinion in Romer, Justice Kennedy saw Amendment 2 for what it
was, namely, a brazen and unprecedented effort to codify discrimination
against gay people in the state constitution.
And in writing for the Court in Lawrence, Justice Kennedy made clear that he
understood the ways in which sodomy laws were used to demean the humanity
of gay people and to justify a long list of discriminatory practices against
them. Given Justice Kennedy’s clearly expressed views on these issues,
there is a good chance he will agree with the Department of Justice, in a
case like Gill, that courts should apply a presumption that the government
acts unconstitutionally when it treats individuals differently because of
their sexual orientation.
It is true, of course, that the Supreme Court could side with the Gill
plaintiffs without applying heightened scrutiny. The Court, in other words,
could hold that DOMA does not pass constitutional muster even under the
rational basis test, the most deferential standard of judicial review. This
is what the Court ostensibly did when it struck down Colorado’s Amendment 2
in Romer. But there are two important differences between Romer and Gill.
First, the Romer plaintiffs did not argue before the Supreme Court that
heightened scrutiny should apply to sexual orientation classifications (that
argument was relegated to the amicus briefs). In contrast, the Gill
plaintiffs have made heightened scrutiny a cornerstone of their case and
they would likely continue to do so if their lawsuit reaches the Supreme
Court.
Second, in Romer, the government did not contend – as it is doing in the
DOMA cases – that heightened judicial scrutiny is appropriate whenever the
state classifies individuals according to sexual orientation. Again, it is
one thing for lesbian and gay plaintiffs to make that argument; it is quite
another for the executive branch of the federal government to do the same.
If the Supreme Court were to hold in a case like Gill that the government
must defend the constitutionality of laws that treat individuals differently
because of their sexual orientation by satisfying intermediate heightened
scrutiny (the same level of judicial review that applies to gender
classifications), then that would significantly increase the chances of
success in cases, like Perry, that deal directly with the question of the
state’s authority to deny same-sex couples the opportunity to marry. Every
court that has applied heightened scrutiny in assessing the
constitutionality of same-sex marriage bans has struck them down.
All of this makes the question of timing a crucial one. From a marriage
equality perspective, DOMA should go to the Supreme Court first, and
Proposition 8 should go second. | g********d
发帖数: 4174 | 7 http://www.scotusblog.com/
摘要：今年或NEXT TERM（明年？）最高法院会以5：4承认同性婚姻， JUSTICE
KENNEDY会站在历史正确的一边。(这有点太乐观了，而且讲的不具体)
Erwin Chemerinsky
Posted Friday, August 19th, 2011 11:35 am
The time for marriage equality has finally arrived
Ewrin Chemerinsky, Dean and Professor of Law at University of California,
Irvine, predicts a narrow same-sex victory at the Court.
The following contribution to our same-sex marriage symposium is by Erwin
Chemerinsky, Dean and Distinguished Professor of Law, University of
California, Irvine School of Law. Previously, Dean Chemerinsky was a
professor at Duke Law School, University of Southern California Law School,
and DePaul College of Law. He is the author of seven books and over 100 law
review articles. Frequently, Dean Chemerinsky argues appellate cases,
including in the United States Supreme Court.
—
The Supreme Court will recognize a right to marriage equality for gays and
lesbians; it is just a question of when. It very likely could come this
Term, as a case concerning the constitutionality of the Defense of Marriage
Act makes its way to the Court. If not this year, it could happen in the
next Term as the challenge to California’s Proposition 8 finally gets to
the high Court.
The Supreme Court long has ruled that the right to marry is a fundamental
right under the United States Constitution. Laws prohibiting same-sex
marriage should have to meet intermediate or strict scrutiny both for
interfering with a fundamental right and for discriminating against a group
that traditionally has been the victim of unjust treatment. Yet, what is
striking is that there is no legitimate, let alone compelling reason, for
denying same-sex couples the right to marry. The arguments for prohibiting
same-sex marriage are astonishingly weak.
One contention frequently made is that marriage, by definition, is between a
man and a woman. But this is not an argument, it is just a definition.
Certainly marriage can be defined this way, but it also can be defined to
include same-sex couples exchanging the same vows, going through the same
rituals, and receiving the same benefits. Nor is the long tradition of
defining marriage as requiring an opposite-sex couple a reason for refusing
to recognize same-sex marriages. For the first 170 years of American
history, Southern states, such as Virginia, had laws prohibiting interracial
marriage. Such long-standing traditions did not prevent the Supreme Court
from declaring unconstitutional anti-miscegenation laws in Loving v.
Virginia.
A second argument sometimes made against same-sex marriages is that marriage
is inherently about procreation. But this is wrong because heterosexual
couples can marry even if one or both of the partners is physically
incapable of having children or if they do not wish to do so. Moreover,
same-sex couples often have children, whether by adoption, surrogacy, or
artificial insemination. They need and deserve all of the protections that
family law provides to opposite-sex couples who are raising children.
The argument is made that children are psychologically better off with two
parents of the opposite sex than with two parents of the same sex. There is
no evidence whatsoever to support this assertion, but it also completely
misses the point. The debate is not over whether gay and lesbian couples
should have children; they, of course, will do so for the same reasons that
heterosexual couples want to reproduce. The question is once a same-sex
couple has a child, is that child better or worse off if the same-sex couple
is married?
The answer to this, based on common sense as well as the arguments made by
opponents of marriage equality, seems obvious. Marriage is defended as a
crucial social institution because it increases the likelihood of stable
relationships, which are best for raising children. Children in same-sex
households thus benefit from the stability marriage provides in the same way
it is thought that marriage is best for raising children when there are
heterosexual parents. Indeed, in this way, allowing marriage equality is
very much pro-family.
A third argument against marriage equality is that allowing it will weaken
the institution of marriage and thus be harmful to society. This argument
is frequently made by opponents of same-sex marriages, but it never is
explained why allowing others to become married will harm marriage. Quite
the contrary, expanding marriage to gays and lesbians reinforces the
importance of marriage as a basic social institution. Allowing interracial
marriages did nothing to weaken the institution of marriage and did not
lead to allowing polygamy or incestuous marriages. Nor is there any reason
that permitting same-sex marriages would have this effect.
A final argument made by opponents of same-sex marriages is that it is
improper for the judiciary to mandate their recognition; that this is
properly a legislative function. However, it is the judicial role to
interpret the Due Process and Equal Protection Clauses of the Constitution
and to remedy unjust discrimination and violations of fundamental rights.
Because laws that prohibit same-sex marriage discriminate in violation of
the Equal Protection Clause and infringe a long-recognized fundamental right
, it is the duty of the judiciary to strike down laws denying marriage
equality to gays and lesbians. It was not impermissible judicial activism
when the Supreme Court invalidated laws prohibiting interracial marriage and
it is equally appropriate for courts to declare unconstitutional laws
prohibiting same-sex marriage.
No doubt many are offended by the idea of same-sex marriage. But, of course
, those who don’t like the idea of same-sex marriage don’t have to marry
someone of the same sex.
What will the Supreme Court do on this issue? The conventional wisdom is
that it will be a five-to-four decision with Justice Kennedy in the majority
. I agree and believe Justice Kennedy will write the decision holding that
there is a constitutional right to marriage equality for gays and lesbians.
There have been two Supreme Court cases protecting gays and lesbians –
Romer v. Evans (1996) and Lawrence v. Texas (2003) – and both were written
by Justice Kennedy. As much as any Justice in history, Anthony Kennedy
frequently has looked to trends in other nations and so many other countries
now recognize a right to marriage equality. Justice Kennedy wants to be
on the right side of history and it is clear that the national and
international trend is recognition of marriage equality for gays and
lesbians. Justice Kennedy will write an opinion as he did in Romer and
Lawrence concluding that there is simply no legitimate government interest
in denying marriage equality to gays and lesbians.
Laws in every state traditionally have provided enormous benefits to married
couples that were unavailable to others. These statutes concern important
matters such as child custody, inheritance, insurance coverage, and tax
benefits. Beyond the tangible benefits, marriage is the primary way in
which people express their love and desire for permanent commitment.
Denying marriage equality to gays and lesbians is a powerful statement that
society still believes them to be second-class (or worse) citizens.
Gays and lesbians should have the same ability to experience the joys and
disappointments of marriage that heterosexuals always have enjoyed. This is
what the Supreme Court should hold and, I believe, will hold when the
matter gets before them. | p********i
发帖数: 1963 | 8 啊呀，他妈妈的，doma赶紧费啊，我就可以结婚拿绿卡了。。
怎么这个预测说这么快明年就能出结果啊？
【在 g********d 的大作中提到】
: http://www.scotusblog.com/
: 摘要：今年或NEXT TERM（明年？）最高法院会以5：4承认同性婚姻， JUSTICE
: KENNEDY会站在历史正确的一边。(这有点太乐观了，而且讲的不具体)
: Erwin Chemerinsky
: Posted Friday, August 19th, 2011 11:35 am
: The time for marriage equality has finally arrived
: Ewrin Chemerinsky, Dean and Professor of Law at University of California,
: Irvine, predicts a narrow same-sex victory at the Court.
: The following contribution to our same-sex marriage symposium is by Erwin
: Chemerinsky, Dean and Distinguished Professor of Law, University of
| p********i
发帖数: 1963 | 9 我的理解是，CA的案子很可能会以standing issue判我们赢。理想情况下大概明年春加
洲恢复同婚。。。
,
state
by
Minnesota
【在 g********d 的大作中提到】
: Dale Carpenter Guest
: Posted Thursday, August 18th, 2011 1:57 pm
: Perry as Politics
: Dale Carpenter, Professor of Law at the University of Minnesota Law School,
: considers the political costs of litigating same-sex marriage state by state
: , starting with California’s Proposition 8.
: The following contribution to our same-sex marriage symposium is written by
: Dale Carpenter. Professor Carpenter teaches constitutional law, the First
: Amendment, and sexual orientation and the law at the University of Minnesota
: Law School. He is a contributor to the blog, the Volokh Conspiracy.
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