Filed under: Trial analysis
The Senate Judiciary Committee has voted to repeal the anti-gay Defense of Marriage Act. Now it moves to a Senate that’s hostile to marriage equality — but that’s actually okay.
On one side: ten Senate co-sponsors of the Respect for Marriage Act. Patrick Leahy of Vermont, Herb Kohl of Wisconsin, Dianne Feinstein of California, Chuck Schumer of New York, Dick Durbin of Illinois, Sheldon Whitehouse of Rhode Island, Amy Klobuchar of Minnesota, Al Franken of Minnesota, Christopher Coons of Delaware, and Dick Blumenthal of Connecticut.
On the other side: eight opponents of marriage equality. That’s Chuck Grassley of Iowa, Orrin Hatch of Utah, Jon Kyl of Arizona, Jeff Sessions of Alabama, Lindsey Graham of South Carolina, John Cornyn of Texas, Michael Lee of Utah, and Tom Coburn of Oklahoma.
Right now the case against DOMA is racing through all three branches of government. This latest advance is in the Legislative branch, but the Executive branch also stands against DOMA, and there’s a slew of cases working their way through federal courts.
Meanwhile, although AFER’s case, Perry v. Brown. concerns Prop 8 instead of DOMA, the arguments are similar: marriage discrimination violates the Constitution of the United States, whether it’s DOMA or whether it’s Proposition 8.
Orrin Hatch may have had the hearing’s strangest argument — he claimed that DOMA protects states’ rights. But no. Look at the law. DOMA has 3 parts. Part 1′s just the name. Part 2 prevents LGBT couples from moving their marriage from one state to another — so if you’re married in Iowa and you move to Utah, your marriage evaporates and there’s nothing Iowa can do to protect you. And Part 3 is even worse: it changed the federal definition of marriage, forcing federal agencies to ignore marriages. So even if you’re married in Iowa and you stay in Iowa, every single federal agency will work to undermine that marriage.
That’s why this state-by-state patchwork of marriage laws is so unfair. You’re married over here, you’re not over there, you’ve got to fill out four different sets of taxes, the YMCA can tell that you’re married but the IRS can’t. This is why full federal marriage equality is the only solution.
Senator Whitehouse put it best. He said that his constituents in Rhode Island are “prejudiced needlessly under this law. … We owe them better. We should treat [their] commitment with respect.”
And Senator Franken was even more succinct. “DOMA hurts families.”
The 10-to-8 victory for the Respect for Marriage Act means it now moves to the full Senate, where it has the support of 31 Senators. It’s pretty unlikely that it’ll be brought up for a vote anytime soon, but that’s fine — it gives time for support to grow in Congress.
Meanwhile, our case continues its expedited progress through the federal courts. Ari Ezra Waldman had a great piece on Towleroad this week about why we get more strength from legal arguments than from popular elections. Remember the misleading ads in California? Our opponents spent millions to trick Californians into thinking that Prop 8 had something to do with protecting marriage.
But when they’re in court, they’re under oath, and “limited by the compulsion to tell the truth.” And that’s why they’re trying to hide. They want to hide their names. They want to hide their arguments. They want to hide the tapes of the trial … because they know they have no case.
And if the country had voted on interracial marriage, it wouldn’t have been legal until the 1990s. It was a visionary Supreme Court that ruled in Loving v. Virginia that marriage is one of the “basic civil rights of man,” and that marriage bans are “subversive to the principle of equality at the heart of the Fourteenth Amendment.”
In fact, the Supreme Court has ruled 14 times that marriage is a fundamental American freedom. And soon, we’re going to make that 15 times. See you in court.
By Adam Bink
A collection of coverage and responses (some via e-mail):
Shannon Minter of the Nat’l Center for Lesbian Rights, who along with his colleague Chris Stoll previously stopped by to answer Prop 8 legal questions from the Prop8TrialTracker community (you can find the transcripts here and here, they are incredibly informative if you have legal questions about where the case heads from here), and who argued the original In re marriage cases before the CA Supreme Court, wrote:
I was concerned by the tenor of many of the justices’ questions today. The court has a responsibility to enforce the California Constitution, which gives elected state officials—not private initiative sponsors—the authority to decide whether to appeal a federal court decision invalidating a state law. Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures. Permitting special interest groups to usurp that decision-making authority would dramatically change the current law and take a giant step down the road of turning California into a mobocracy. I was disappointed that, with some notable exceptions, too many of the court’s questions today did not address the specific legal questions before them, but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to “the people.” The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution. I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.
NCLR’s Kate Kendell also commented:
It would be an unthinkable blow to California’s democratic system of government if the handful of individuals who sponsored Prop 8 could make decisions for the entire state. Today’s arguments raised critical questions affecting the future of all groups who may be targeted by unconstitutional ballot initiatives, and the California Supreme Court’s decision will determine whether our state can be held hostage by special interests with no accountability to the public. We are hopeful that the Court will affirm that a handful of private citizens representing only their own narrow interests cannot usurp the role of the duly elected officials of the state of California.
Maura Dolan of the LA Times opines that the court leaned towards giving standing to the proponents.
The Advocate looks at Olson’s comments after the hearing.
Ari Ezra Waldman does some summary and Q&A.
Any other interesting takes you’ve found?
Update: Archived video of today’s hearing can be found here.
Please welcome frequent P8TT legal analyst Brian Leubitz of Calitics.com for some thoughts on yesterday’s hearings -Adam
By Brian Leubitz
I suppose I shouldn’t be surprised by anything in the Prop 8 trial anymore, but to be honest, I really thought that the attorneys for the proponents were better than this. No, I’m not imputing any skills to Andy Pugno other than self-aggrandizement, but despite their backward ideals, some of the attorneys on the pro-8 team weren’t all that bad. Sure, they were given a pretty bad case and told to make some lemonade out of rotten lemons, but the lemonade was only half as rancid as it could have been.
I was unable to make it to the courthouse like I had hoped to yesterday, but thanks to both Arisha and Rick at P8TT and the good folks on the AFER twitter feed, I was able to keep pretty good tabs on the argument. And as I was reading them, on both the video and the motion to vacate, one idea came to mind:
Before the hearing yesterday, if you asked most any attorney of note, bringing up the old “he’s gay!” argument was something of a sign of discomfort with the way they put on the original case. Pugno and friends essentially acknowledged that perhaps they could have done it better.
If you look at it legally, they still have a lot of appellate options remaining. And much of the case boils down to “questions of law” to which appellate courts review de novo, that is they look at them completely fresh. Judge Walker’s determinations are essentially given no deference there. However, Judge Walker also listed a slew of “findings of fact.” These are not reviewed fresh, but are only overturned if they are “clearly erroneous.” (I’ll leave the question about whether those are really findings of fact for another day.)
So, if you take that his findings of fact are really that, then sure, you’d really, really want a new trial. But there are several very important questions of law that much of the case turns upon in Judge Walker’s decision. Those are reviewed fresh, and Team Prop 8 doesn’t seem to like their hand on that one.
So, they brought this motion to vacate, hoping to get a do-over for that rancid lemonade they made last year. Who knows what their rationale was, but it all stunk of desperation.
Judge Ware’s questioning cut right to the heart of the issue. What is a judge really obligated to disclose, and what are they allowed to take upon themselves to determine their own bias (or lack thereof)? Judge Ware brought up a series of hypotheticals that really put the lie to the Prop 8 team’s argument. I’ll let you go back to the live-blogging yesterday morning to catch those, but suffice it to say, Mr. Cooper was not in an enviable position.
Surely the Prop 8 attorneys thought this through enough to figure out that this wasn’t going anywhere. After all, vacating that decision would have had profound impacts on cases going far beyond the issue of LGBT rights. It was, at best, a long shot. But perhaps a long shot with rewards that were worth the risk for them.
In theory, perception shouldn’t really make a difference in a legal proceeding. That is extraneous, and shouldn’t be taken into account by the jurists reviewing the case. And I have confidence in our judiciary that it won’t be. But, I’m pretty sure if you were able to ask the participants in the Scopes Monkey Trial if perception matters, you would get a very different response. In cases of historical import, perception matters, and I can’t imagine that yesterday did anything for those who wish to hold back the arc of history as it wends its way toward justice.