What To Watch For: 'Standing' in the Supreme Court's DOMA Case, Windsor v. United States

BY ARI EZRA WALDMAN

On Tuesday and Wednesday, March 26 and 27, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. In this column, standing in the DOMA case. 

In an earlier post, we discussed the "standing" issue in the Prop 8 case, Hollingsworth v. Perry. The issues there should be pretty familiar to regular Towleroad readers; we have been discussing them since shortly after Judge Vaughn Walker declared Prop 8 unconstitutional in 2010. The standing question in the DOMA case, Windsor v. United States, has not garnered as much attention, but it rests on similar legal principles.

Standing in Hollingsworth depends on whether ordinary citizens can step into the shoes of the state without showing their own "particularized" or "direct injury."

Standing in Windsor depends on whether one house of Congress can step into the shoes of the Executive Branch without showing their own direct injury.

There are really four related questions here:

First, could Congress ever have standing to defend a law like DOMA?

Second, even if Congress could, can one house of Congress defend DOMA without the other?

Third, even if one house of Congress could, did one committee of that house have the power to intervene?

Fourth, even if one house of Congress could defend DOMA, does the Obama Administration's agreement with the Second Circuit's decision striking down DOMA deprive the Supreme Court of jurisdiction regardless of who is defending the law?

Because Edie Windsor, President Obama, and House Republicans all believe that the parties have standing and the Court has jurisdiction, the Court, as it sometimes does, appointed a constitutional scholar -- Professor Vicki Jackson of Harvard Law School (right) -- to flesh out the standing argument.  

Think of Professor Jackon's argument this way: Winners can't appeal, the left hand can't do anything without the right hand, and, regardless, both hands are tied. That is, because the Obama Administration won at the Second Circuit and because only one house of Congress is trying to defend DOMA, the Court has no jurisdiction to hear the case. Plus, DOMA is not the kind of law that Congress ever has the authority to defend.

There are several persuasive legal reasons to think this argument is sound, but just as many persuasive reasons on the other side. And, there is one other factor that will most likely push the Court to go beyond the standing question and address DOMA's merits: If it doesn't, then DOMA is the law of the land in several jurisdictions, but unconstitutional in others, contributing to an absurd regime that would be impossible to administer.

I discuss the arguments AFTER THE JUMP.

What To Watch For: 'Standing' in the Supreme Court Prop 8 Case, Hollingsworth v. Perry

BY ARI EZRA WALDMAN

On Tuesday and Wednesday of next week, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. Today, standing in the Prop 8 case.

Standing is the first question the lawyers will argue and the first question the Court will answer. It has to be first because standing is what lawyers call a "jurisdictional" question: if a party doesn't have standing, it doesn't have the right to bring the case in the first place, so the court can't address the rest of the case.

So, what determines if a party has standing? Veterans of law school classes like Civil Procedure and Federal Courts will know that federal standing requires some type of "personal" or "direct injury." In other words, to bring a lawsuit to a district court, you have to be directly affected by the underlying incident giving rise to the case or, in the case of standing to appeal, you have to be directly (and adversely) affected by the lower court decision.

In the Prop 8 case, the standing question concerns the standing to appeal. 

CONTINUED, AFTER THE JUMP...

What the Prop 8 and DOMA Cases Really Mean

BY ARI EZRA WALDMAN

The Supreme Court will hear nearly three hours of arguments in Windsor v. United States and Hollingsworth v. Perry on March 26 and 27 to determine if DOMA and Prop 8 are constitutional. In the coming days, I will review and summarize some of the central legal questions in those cases. For today, I would like to take a longer view, focusing on what sometimes gets lost in the legal, political, and media coverage of the cases: the real way in which these cases will change the daily lives of every gay person.

Law sometimes seems so esoteric and arcane that legal professionals and laypersons alike complain that the system is rigged, that only politics matters, or that it doesn't matter which way a judge decides because it won't affect our daily lives either way. Not true, especially for these cases. Even a decision on some of the most highfalutin legal concepts -- the level of scrutiny a judge should use to determine whether a given statutory classification of persons satisfies constitutional requirements, for example -- could have a direct impact on the relationship between gay persons and the state and, therefore, on how we live our lives.

Like Lawrence v. Texas, which changed all gay persons from presumptive criminals to members of a constitutionally protected class, Windsor and Hollingsworth could make gays fully equal under the law, with the remaining discrimination falling steadily like dominoes. The latter two cases, to be decided almost exactly 10 years to the day after Lawrence, ask if there is any legitimate reason to discriminate on the basis of sexual orientation. If no such reason exists -- which it doesn't -- it's hard to imagine how any anti-gay discrimination could ever be permitted again.

CONTINUED, AFTER THE JUMP...

Why We Welcome Rob Portman

BY ARI EZRA WALDMAN

Rob Portman is a deeply conservative man, a religious man, a "family man," as they say. After his now 21-year-old son came out as gay, it took Senator Portman (R-OH) two years and several conversations with religious leaders and numerous personal consultations with the Bible to finally do some coming out himself: as the first Republican senator to support the freedom to marry.

None of that really matters. In fact, focusing on the negatives -- how long it took him, the fact that he needed to be personally invested before supporting gay equality, and that he seems to have needed more persuading beyond the mere fact of his son's sexuality -- misses the point. 

What Rob Portman did was neither heroic nor brave, but that doesn't mean we should manifest whatever latent bitterness we have about being a discriminated minority by thinking him selfish or without sympathy. We should welcome him with open arms, thank his son for his bravery, and rededicate ourselves to creating a world in which the Will Portmans of the world feel comfortable coming out. 

The reflection and evolution that changed the Portman family are the same changes and evolutions going on in countless families across the world right now, as more bright young men and women come out and live open lives. Only our most vocal and strident opponents are haters; most mothers and fathers just can't relate. They see one man's attraction to another man as more weird and different than disgusting and diseased. But, as soon as they learn that their child or their friend is gay, they put a human face to the phenomenon and suddenly, being gay doesn't seem so strange.

And, that's really what's going on here: learning. Every coming out, whether on the cover of People or sitting by your mother's bed one night shortly after your 21st birthday (how I came out), is a moment of great learning. It is a moment that lifts a great weight from a burdened soul and begins to fill a gaping hole in the life experiences of another. It is both an end and a beginning: For us, it is often the end of a life lived as a lie; but for most of our parents, it is just the beginning of a journey. It is a journey we can neither deny them nor rush for them. We can only support them and teach them along the way.

Harvey Milk said it best. "Most importantly, ... every gay person must come out. As difficult as it is, you must tell your immediate family, you must tell your relatives, you must tell your friends if indeed they are your friends, you must tell your neighbors, you must tell the people you work with, you must tell the people at the stores you shop in. And, once they realize we are indeed their children and we are indeed everywhere, every myth, every lie, every innuendo will be destroyed once and for all. And, once you do, you will feel so much better."

Social scientists call this the contact theory, or the idea that interpersonal contact is the best way to improve relations between two otherwise hostile or distant groups. Because our sexual orientations are not superficially obvious and yet are no less deeply held than our races or genders, the success of the contact theory for bridging a divide between gays and heterosexuals requires a necessary first step of telling the world we're gay.

Then the journey can begin.

I remember telling my mother toward the end of our conversation the night I came out to her that I knew this might be hard and that there was no need to respond. Unlike her, I had been dealing with my sexuality for years; she only had 30 minutes. I told her to take some time, think about it, ask me any question she had (her first was adorable: "Do you have a special friend?"), and that I would drop everything at anytime to talk with her about it. Her journey was just starting, but for the first time, it was a journey neither she nor I had to go on alone.

Some of us have parents who knew we were gay all along or take the baton of our coming out and run with it to the next gay pride march or the next freedom to marry rally. A few of us sadly have parents who beat us or reject us. But most of our parents just want us to be happy and safe and to know the feeling of love and being loved. Senator Portman is probably in the last category. 

But, like my mother, who now actively and eagerly responds to her conservative friends when they say something insensitive about gay people, Senator Portman may not start screaming into megaphones at Freedom to Marry rallies, but he will balk at the hate his Party leadership has shown and still shows toward gays. For him, the Republican support for DOMA and their opposition to the freedom to marry and, we hope, the Employment Non-Discrimination Act, are not just anti-gay positions, they are anti-Will Portman positions now. And that is the remarkable success story of coming out. Will Portman has allowed his father to put a loving face on a previously amorphous, distant concept. Coming out worked. We have a new ally. 

'Protect Marriage' and House Republicans: Justifying Discrimination at the Supreme Court

BY ARI EZRA WALDMAN

It's time to take a look at the briefs that ask the justices of the Supreme Court to uphold Proposition 8 and the Defense of Marriage Act. Those briefs, submitted by the official Prop 8 proponents, ProtectMarriage, and Speaker Boehner (right) and his House Republican majority, respectively, rely on tired stereotypes about children needing different-gendered parents in order to thrive, and purport to rest discrimination on the difference in the means by which heterosexuals and gays procreate. It really is that simple: Junk (and long debunked) science, coupled with inordinate reliance on the male-female procreative phenomenon, apparently justify keeping gay persons away from the institution of marriage.

Remarkably, this represents progress. Gone are the sophomoric and ludicrous claims that gays marrying will somehow damage existing opposite-sex marriages or discourage committed heterosexuals from walking down the aisle. Also gone are explicit references to flimsy and biased "studies" that showed that gays make bad parents. What remains is the fact that heterosexuals procreate through unprotected vaginal intercourse and because gay couples do not, their marriages do not implicate the same governmental interests in fostering thriving and successful children.

So while the most irrational anti-gay arguments have long since been trashed, the remainder fail the test of logic: Even if it were true that gay couples' means of procreation set them outside the target of the government's interest in encouraging heterosexual marriage, that says nothing about why gays would have to be excluded from marriage in order to further that interest. Think of it this way: if it is true that the sky is blue, that really tells us nothing about whether the ground is brown. If the government has an interest in encouraging heterosexuals to marry, that cannot explain why that interest means that it has to ban gays from marrying.

I discuss the arguments in the briefs in more detail AFTER THE JUMP...

The Logical Problem with the '8 State Solution' in President Obama's Prop 8 Brief

BY ARI EZRA WALDMAN

President Obama's decision to file an amicus brief in Hollingsworth v. Perry calling on the Supreme Court to strike down California's Prop 8 has been met with the kind of media coverage and commentary due an historic event. Media outlets are focusing mostly on the historic nature of the brief: A President of the United States is actively supporting the freedom to marry in the courts. Commentators are generally talking about the political impact of the brief: It keeps the President at the vanguard of the gay rights movement while giving some of the Supreme Court's conservative or cautious justices a path that recognizes the right of committed gay couples to marry without doing too much too fast.

As I discussed here last week, the President's brief is a most welcome product of his deeply held personal belief that all Americans are entitled to be treated equally regardless of sexual orientation. It is also a product of the pro-gay political winds of the day -- namely, after more than 100 Republicans signed on to a brief in support of striking down Prop 8, a progressive Democratic president that made support for gay equality a central part of his campaign and his inaugural address could not stand on the sidelines. The brief also reflects the President's cautious nature: he helped devise a middle ground position between accepting the freedom to marry in California alone and striking down every state marriage ban with one stroke of the pen. His so-called "8 State Solution" would delegitimize the gay marriage bans in those states that, like California, accord gay persons every possible right -- second parent adoption, domestic partnerships, benefits, and so forth -- but simply deny them the word "marriage." I wrote about this in more detail here.

The problem is that, when read in the context of the entire brief, the 8 State Solution makes no sense. If the Court takes the President's argument seriously, the justices need not stop at just 8 states. The President's theory could invalidate all marriage discrimination against gays.

AFTER THE JUMP, I bring some complex legal concepts down to earth and argue that President Obama's 8 State Solution is just a political proposal. His purely legal argument would go much further.

CONTINUED, AFTER THE JUMP...