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Towleroad Talking Points: SCOTUS to Take On Marriage Equality

 PHOTO OF THE DAY: These are the wonderful faces of marriage equality in Washington


A look back at today's top stories


Historic news from the Supreme Court today as they have announced that they will hear DOMA and Prop 8 cases! Our legal editor Ari Waldman discusses what we can expect from the two cases the court is hearing. What a monumental day!

Some good news too from across the pond where British Prime Minister David Cameron made a strong statement in favor of equal marriage for all



Bill O'Reilly was spouting some more crazy about the so-called "War on Christmas" last night. Apparently it is we gays who are to blame. You know how we hate merriment. As the Ugandan Parliament mulls the idea of a "Kill the Gays" Bill, the nation's tabloids are ramping up the anti-gay propaganda. A paper recently printed a photo purporting to show the head of the Uganda Cranes football team "sodomizing" a younger player




The writers at General Hospital have introduced a gay character and he introduced himself by helping a woman apply lipstick. Because what else do gays do? Also check out four new featurettes about the upcoming Les Miserables adaptation



Stephen Colbert would like to be considered to replace Jim DeMint's now vacated seat in the Senate, because there aren't enough white guys there. Apple CEO Tim Cook gave his first full interview since the death of Steve Jobs on Rock Center last night. 

Also check out when things started to go south for a young and dashing Santa Claus

Posted Dec. 7,2012 at 9:00 PM EST by | Permalink | Comments (3)

Towleroad Guide to the Tube #1263

DESCRIBING COLORS: To blind people.

LGBT IN ATHLETICS: LZ Granderson talks to Wade Davis and Hudson Taylor.

TREVOR LIVE: Katy Perry accepts the 'Hero' award.

PROP 8, DOMA: AFER's Matt Baume on today's SCOTUS decision.

For previous Guides to the Tube, click HERE.

Posted Dec. 7,2012 at 7:00 PM EST by | Permalink | Comments (4)

Supreme Court Will Hear DOMA and Prop 8 Challenges: An Analysis


The Supreme Court issued orders granting hearings in the Prop 8 case, Hollingsworth v. Perry, and one Defense of Marriage Act (DOMA) case, Windsor v. United States. The stage is set for a monumental 2013 at One First Street, with decades-long ramifications for the gay rights movement.

WindsorCourt watching is humbling, especially when you're (half) wrong. Like almost every commentator, I expected a grant in at least one DOMA case. I thought Windsor was the likeliest choice if the Court took only one: it offers an avenue for addressing scrutiny levels and would not require Justice Kagan to recuse herself. As Towleroad readers know, though, I did not expect the Court to grant the petition in the Prop 8 case, especially because of the narrowness of the Ninth Circuit's decision. 

But, being at the Supreme Court has its advantages. It means you can craft the question presented -- the specific legal question the parties have to answer at oral argument and the Court wants to answer in its decision -- pretty much any way you want. The way the Court specified the questions in both cases speaks volumes to the great potential to make remarkable strides toward equal honor and dignity under the law.

One thing is clear: The reason the Court took so long to grant these hearings is the complexity of the orders and myriad options open to the Court. Evidently, there was also a lot of strategy involved. That is, even though the Court gave itself great space to decide every substantive issues, each order includes a jurisdictional question that would allow the Court to avoid the substance if it really wanted to.

I discuss what that means, AFTER THE JUMP...

Hollingsworth v. Perry, challenging California's Proposition 8

The American Foundation for Equal Rights (AFER) is leading the charge against California's ban on same-sex marriage and achieved extraordinary success. That success reached its zenith when Judge Vaughn Walker issued a sweeping decision declaring that by discriminating against gay couples, Prop 8 violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The Ninth Circuit affirmed the decision, but took a step back from that broad holding, finding only that Prop 8 was unconstitutional because it took away already existing rights.

The Supreme Court is interested in the broader holding. Its order takes as the question presented whether, under the Fourteenth Amendment, California can define marriage as between one man and one woman. It did not limit its consideration of the case to the Ninth Circuit's taking away theory.

Plus, the Court will return to the "standing" question. If you recall, the Ninth Circuit Prop 8 decision took extra time because that court had to determine if the proponents of Prop 8, ProtectMarriage, could stand in the shoes of the state to defend the law when the state government refused to. The Court would like to determine that for themselves, and because jurisdictional issues are determined de novo -- "from the beginning" -- the Supreme Court is more than free to come to a different conclusion than the Ninth Circuit.

Windsor v. United States, challenging the Defense of Marriage Act

WindsorThe ACLU brought this challenge on behalf of Edie Windsor, who had to pay an exorbitant tax bill upon the death of her partner where every heterosexual widow would not. If you recall, this is the case where a relatively conservative panel of the Second Circuit held that heightened scrutiny is the appropriate level of scrutiny for DOMA and any state action that discriminates on the basis of sexual orientation.

This is the only DOMA case for which the Court granted a hearing. It said nothing about Gill, which was the First Circuit case decided on "rational basis with bite" and included a Tenth Amendment question. But, Gill was also the case in which Justice Kagan would have had to recuse herself, so that was the least likely to be granted.

The Court chose the Government's question presented -- Whether DOMA Section 3 (one-man, one-woman definition of marriage for federal purposes) violates the Fifth Amendment -- but also included two other questions: Does the fact that the Government agreed with the Second Circuit's decision deprive the Court of jurisdiction to hear the case? And, do House Republicans, who took up defense of DOMA when President Obama refused, have standing?

We all understand the main question. The second question is a bit arcane. Normally, a winner cannot appeal a lower court ruling. The Obama Administration argued at the Second Circuit that DOMA is unconstitutional, so a decision declaring DOMA unconstitutional agrees with the Government's position. That decision certainly made the ACLU and Edie Windsor winners, but whether it made the Government a winner -- and thus, incapable of appealing it -- is less clear. The Government argues that the Second Circuit's decision was a decision against a duly enacted Act of Congress that the executive was still obligated to enforce, notably against its will. Therefore, the decision was, theoretically, still against the Government.

By these questions, the Court gave itself space to answer both the underlying merits of the DOMA challenge and the scrutiny question. After all, it may not be possible to decide if DOMA Section 3 is unconstitutional without first deciding how to answer the question, i.e., heightened scrutiny versus rational basis.


Without being a fly on the wall in conference, the text of the orders and the decision to grant in certain cases but not others speak volumes about what happened, why it took so long, and what this could all mean down the road.

Each order includes an "opt-out." I mean that metaphorically, of course. The orders on both Hollingsworth and Windsor include jurisdictional questions that could decide the entire matter outright without letting the Court get to the substance of either case. So, if some of the justices feel their position won't get 5 votes, they may be more inclined to live to fight another day by making non-precedential decisions on jurisdiction now. This speaks to one of the main reasons why it might have taken so long to come to these decisions: strategy. The ideological wings of the divided Court may have been looking for ways to have a fall back position if they could not get a swing vote on their side, and sometimes, jurisdictional questions that prevent wide application of a decision beyond the one at hand offer that kind of safe default position.

What about scrutiny? The Windsor order did not specifically mention the appropriate level of scrutiny, but by taking the Windsor case, the Court may have recognized that the hazy scrutiny standard it has left in place since Lawrence v. Texas is no longer tenable. Windsor was the only DOMA case that forced the Government to stake out a scrutiny position; the Second Circuit was unique in that it had no historical precedent on the appropriate level of scrutiny for anti-gay laws. And, the Windsor decision put the level of scrutiny front and center when the court held that heightened scrutiny was necessary. The Court could always continue to muddle through or decide that DOMA is unconstitutional under any level of scrutiny and leave the law an unclear patchwork of scrutinies that varies from circuit to circuit, but the grant and its wording gives the Court the space to make a scrutiny decision.

Olson-boiesBaker v. Nelson is nowhere to be found. Baker is a 1971 case where the Supreme Court denied a hearing on a gay marriage case from Minnesota "for want of a federal question." That is, back then, the Court said that Minnesota's decision to deny licenses to gay couples was not a matter for the federal constitution. To this day, almost every brief supporting a marriage ban refers to Baker, arguing that it forecloses any Supreme Court review. That argument ignores 40 years of gay rights law, in general, and Romer v. Evans and Lawrence v. Texas, in particular, which changed the relationship between gay persons and federal law. The Court may indeed address, and likely explain away, Baker, but the wording of its grant suggests that it is not at the forefront of the Court's consideration.

Is this a good or bad result? Granting Windsor gives the Court a unique opportunity to come together to declare DOMA unconstitutional, though it is not clear that the Court is ready to mandate heightened scrutiny. But, there is no doubt that the grant in Hollingsworth took me by surprise. Its framing the case in the broadest way possible offers a chance for a monumental victory or a great loss because the breadth of the case could have ramifications outside California. This is what Ted Olson, David Boies, and the AFER team wanted all along and the country is so much closer to accepting the freedom to marry in great part because of AFER's skillful engagement with the American public on marriage freedom.

What happens next? The Court has set the stage for a March argument and a decision on the last day of the Court's current term in late June 2013. For now, the Ninth Circuit's stay that prevents the implementation of Judge Walker's original order remains in place. Gays cannot marry in California just yet. But, they are oh so much closer to a resolution.

In the coming days, I will parse out more details and discuss some of these and other implications of this development. Please ask questions in the comments section and I will do my best to respond as soon as possible.

Congratulations to the AFER team and its plaintiffs, Kris Perry and Sandy Stier, Jeff Zarrillo and Paul Katami, and to the ACLU LGBT Project team, James Esseks and his attorneys, and Edie Windsor. The sacrifices they are making for all of us should never go unnoticed.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Posted Dec. 7,2012 at 4:25 PM EST by in Ari Ezra Waldman, DOMA, Edie Windsor, Gay Marriage, Law - Gay, LGBT, Proposition 8 | Permalink | Comments (69)

Supreme Court to Review Proposition 8 and Windsor DOMA Case


The Supreme Court announced this afternoon that it will hear the federal challenge to Proposition 8 and the Edie Windsor DOMA case, marking the first time the high court has heard a marriage equality case.

UPDATE: CLICK HERE for our legal editor Ari Ezra Waldman's analysis of the ORDER.

Here is the SCOTUS order (PDF).

SCOTUSblog writes:

Prop. 8 is granted on the petition question -- whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

In Windsor, the government petition (12-307) is the one granted. In addition to the petition question -- whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

As far as timing goes, arguments in the cases should happen around March 25-27, with a decision coming in late June.

Adds SCOTUSblog:

The Court's two orders on the marriage cases do not include a word about two other issues that lurk in the cases: is Baker v. Nelson still controlling and thus requires dismissal of marriage pleas by gays and lesbians, and what is the constitutional standard of review on gay rights issues. But both almost certainly will be argued in the briefing and at oral argument....It is obvious now why the Court took as much time as it did: the selection process must have been rather challenging, and the compositon of the final orders equally so. The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues.

Lambda Legal Director Jon Davidson's take:

"Perry granted on merits and standing of Prop 8 proponents. So no answers (or CA marriages) likely until June, and Court may ultimately duck merits of Prop 8 and allow order striking it down to stand by finding that Prop 8 proponents had no right to seek Supreme Court (and maybe not 9th Circuit) review."

NCLR Executive Director Kate Kendell, Esq. writes:

“Both the federal DOMA and California’s Proposition 8 serve only one purpose: to harm and stigmatize same-sex couples and their children. Without a doubt, Ted Olson, David Boies, and our colleagues at the ACLU will make the strongest possible case for equality before the Court. We are confident the Supreme Court will strike down DOMA once and for all next year, and, after four long years, will finally erase the stain of Proposition 8 and restore marriage equality to California couples.The day is now clearly in sight when the federal government, the State of California, and every state will recognize that same-sex couples and their children are entitled to the same respect and recognition as every other family.”

Writes the ACLU:

Windsor is represented by attorneys from Paul, Weiss, Rifkind, Wharton & Garrison LLP; the American Civil Liberties Union; the New York Civil Liberties Union and the Stanford Law School Supreme Court Litigation Clinic. While New York and eight other states now give same-sex couples the freedom to marry, DOMA requires otherwise legally married same-sex couples like Edie and Thea to be treated by the federal government as if they had never married,” said New York Civil Liberties Union executive director, Donna Lieberman. “It is time for the Supreme Court to strike down this unconstitutional statute once and for all.”

Protect Marriage writes:

The day we've been waiting for is finally here . . . Today we scored a MAJOR victory for traditional marriage in the Supreme Court of the United States!!  Just moments ago, the Supreme Court GRANTED our petition seeking the Court’s review of the Ninth Circuit’s erroneous decision striking down California's Proposition 8. Thankfully, now we finally have a fighting chance at a fair hearing to defend the votes of over 7 million Californians who approved Prop 8 to restore traditional marriage. This is a great relief, after a long and difficult journey through the lower courts where the deck was stacked against us from the start.

GLAD writes:

DOMA creates a gay-only exception to federal recognition of state-licensed marriages, and we believe that the federal government should stop discriminating against same-sex couples legally married by their states. We know from working with legally married same-sex couples since 2004 in Massachusetts that DOMA undermines their security in every aspect of life and death. GLAD has been leading the fight for marriage equality for two decades, including the historic marriage equality breakthroughs in Massachusetts and Connecticut. That the issue will soon be heard by the Supreme Court is a vindication of our work to achieve equal protection under the law for same-sex couples. This day has been long in the making, and we are committed to the success of this case.

Freedom to Marry's reaction:

By agreeing to hear a case against the so-called Defense of Marriage Act, the Court can now move swiftly to affirm what 10 federal rulings have already said: DOMA’s ‘gay exception’ to how the federal government treats married couples violates the Constitution and must fall. When it comes to the whole federal safety net that accompanies marriage – access to Social Security survivorship, health coverage, family leave, fair tax treatment, family immigration, and over 1000 other protections and responsibilities -- couples who are legally married in the states should be treated by the federal government as what they are: married." “Additionally, gay and lesbian couples in California – and indeed, all over the country – now look to the Supreme Court to affirm that the Constitution does not permit states to strip something as important as the freedom to marry away from one group of Americans.

NOM reacts:

"We believe that it is significant that the Supreme Court has taken the Prop 8 case," said John Eastman, NOM's chairman and former Dean (and current professor) at Chapman University School of Law. "We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect."

"Had the Supreme Court agreed with the lower courts' decisions invalidating Proposition 8, it could simply have declined to grant certiorari in the case," Eastman said. "It's a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco at both the trial court and appellate levels. It's worth noting that Judge Reinhart is the most overruled judge in America. I think this case will add to his record."

GLAAD reacts:

“Today is a historic moment for our nation, equality and countless gay and lesbian couples, who simply want an opportunity to marry the person they love,” said GLAAD President Herndon Graddick. “Our momentum is great and our resolve is strong, with the Supreme Court now poised to affirm our Constitution’s core principals of liberty, dignity and equality for all.”


"Today's decision by the Supreme Court to review Proposition 8 and hear a challenge to DOMA is another step forward for California couples to marry, with the hope that the federal government will also recognize these marriages," said Executive Director R. Clarke Cooper. "In recent years, many conservative judges have repudiated DOMA, and five of the eight justices who have overturned this anti-federalist and discriminatory statute were appointed by Republicans. Add conservative champions like for former Solicitor General, Ted Olson, and it becomes clear that true conservatism demands respect for the freedom to marry."

Here's Ari's earlier analysis of the ruling in the Windsor case if you're interested.

Here's the New York Times report on the consideration.

Developing (refresh for updates)...

Posted Dec. 7,2012 at 3:15 PM EST by | Permalink | Comments (82)

News: SCOTUS, Rhinos, Mark Dayton, Tufts, Psy, Miami Beach

RoadTowleroad has a new theatre critic, Naveen Kumar. Read his first review HERE.

RoadDon't miss Ari Ezra Waldman's analysis of the BIG news of the day, the Supreme Court's decision to hear the Proposition and Edie Windsor DOMA cases!

RhinoRoadGoogle-funded drones to hunt rhino poachers in Africa: "These drones are light enough to be launched by hand and can be programmed to fly about 18 miles at a maximum elevation of 650 feet, for almost an hour. The cameras on the drones allow rangers on the ground to spot would-be poachers, especially in hard-to-reach places."

RoadRadio hosts pull THEMSELVES off the air after...

Road...Hospital nurse duped in prank call to Kate Middleton at hospital found dead in apparent suicide.

RoadCorruption and nepotism said to be sinking Nepal's Blue Diamond Society: "A leading gay rights organization, which is in the limelight even internationally, has plunged into serious financial trouble due to a series of accusations and cases filed against its founder and director Sunil Babu Pant, placing the future of its employees and the interests of sexual minorities under threat."

RoadCNN/SI filters "dykes", thus foiling a story on Cal's new football coach Sonny Dykes.

DaytonRoadMinnesota Governor Mark Dayton says he'll sign marriage equality if it hits his desk: "I hope we're going to get to that point. The younger generation is broadly accepting of that change and we'll get there, it's just a question of when."

RoadScandinavian director Morten Tyldum to direct The Imitation Game: "Graham Moore's Black List script is a biopic of Alan Turing, an English mathematician, logician, cryptanalyst, computer scientist, criminally prosecuted and chemically castrated homosexual, and tortured soul who committed suicide by eating a cyanide-laced apple."

RoadMore of Madonna's men Brahim Zaibat and Rocco Ritchie hanging out together.

RoadJames Franco, Jason Segel, and Seth Rogen have a Freaks & Geeks reunion.

RoadGeorge Weinberg: Put "homophobia" in the list of mental disorders. "It is a curious decision to shun the word 'homophobia' when there is no other word that does the same job. No other word suggests that the problem is in those who persecute gay people. As long as homophobia exists, as long as gay people suffer from homophobic acts, the word will remain crucial to our humanity."

PsyRoad"Gangnam Style" rapper Psy issues apology for anti-American lyrics.

RoadTis the season for snow leopard cubs.

RoadHillary 2016: If Bill Clinton knew, he wouldn't tell you.

RoadRep. Allen West spent $18 million in his failed reelection bid against Patrick Murphy.

RoadTufts University Committee on Student Life allows "student religious groups, including Tufts Christian Fellowship (TCF), to request University Chaplaincy permission for religious exemption from the university’s nondiscrimination clause in choosing their leaders when applying for Tufts Community Union (TCU) recognition."

RoadMiami Beach police officer fired in gay bashing case is reinstated: "Eliut Hazzi was one of two officers accused of beating a handcuffed gay man in South Beach’s Flamingo Park in 2009 and then arresting a witness. He was fired last year during a tumultuous summer for the department, but fought to get his badge back and won a case Tuesday before an independent arbitrator."

Posted Dec. 7,2012 at 3:12 PM EST by | Permalink | Comments (7)

Stephen Colbert Would Like Jim DeMint's Senate Seat: VIDEO


Yesterday, Andrew reported on the departure of Senator Jim DeMint (R-SC) to the Heritage Foundation. Stephen Colbert would like folks to petition Governor Nikki Haley because the U.S. Senate "could use another white guy."


Posted Dec. 7,2012 at 3:02 PM EST by in Jim DeMint, News, Stephen Colbert | Permalink | Comments (3)


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