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Justice Anthony Kennedy's Classic DOMA Decision: A Clear, Broad Case for Equality


The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at Justice Kennedy's majority opinion in Windsor.

Justice-anthony-kennedyLast week, we discussed Justice Scalia's bombastic dissent in Windsor v. United States, the case where the Supreme Court struck down DOMA Section 3. Today, I would like to discuss what got him so angry -- namely, Justice Kennedy's majority opinion.

That Kennedy wrote another gay rights decision surprised few; he had, after all, written the two most important majority opinions affecting gays and lesbians, Romer v. Evans (1996) and Lawrence v. Texas (2003). What also came as no surprise to some who study and teach Romer and Lawrence was that like Lawrence, the Windsor decision was pro-equality, but not too bold; progressive, but not so much so; a positive result, but -- supposedly -- somewhat doctrinally confusing and convoluted.

If it is true that Kennedy's decision is unclear, why would that matter, other than to stuffy professors in the ivory towers of law schools? The primary implication of Kennedy's opinion, however confusing or not, is undoubtedly the fact that DOMA Section 3 is dead and that legally married same-sex couples can start receiving most federal benefits. But a confusing opinion gives confusing, incomplete, and malleable instructions to the lower court judges who interpret most of the law but get much less press. Unclear decisions allow inferior courts to narrow their reach, neutering what should be road, pro-equality decisions. So, the more confusing an opinion, the more room it gives its opponents to weaken it.

Many commentators -- not to mention my lawyer friends and colleagues -- are already lamenting that Windsor is confusing and frustrating. It will always be the role of the law professor and the lawyer to give future courts that will apply Windsor the best interpretation of the meaning of that case. But I resist the growing conventional wisdom. Kennedy's decision is not generally confusing or unclear. It may frustrate us that he did not go as far as we would have liked, but the decision lends itself to a clear, broad, pro-equality interpretation that can only be frustrated by willful and purposeful blindness. AFTER THE JUMP, I show the breadth and clarity of Kennedy's Windsor decision.


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Scalia's Intemperate DOMA Dissent and The Next Marriage Case


La-511969927.jpg-20120626The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at Justice Scalia's dissent in Windsor.

It may seem dissonant to discuss a dissent before a majority opinion, but Justice Scalia's sometimes-snarky, often-intemperate, and always-ballsy dissent in Windsor v. United States teaches us much about where we are going, the struggles we have ahead, and about the justice himself.

Justice Kennedy's majority opinion, discussed briefly here, struck down Section 3 of the Defense of Marriage Act (DOMA) as a violation of equal protection and due process. Justice Scalia not only disagreed; he disagreed with an unusually cold chip on his shoulder.

Scalia's dissent is a tableau of inconsistency, a magician's misdirection, and oversimplification: he rails against judicial intervention, but calls for the very judicial immodesty he says he despises; he says the case is about letting Congress do its job and confuses you when he gets around to talking about what the majority actually did; and, he presumes that the fight for marriage is over, remaining willfully blind to the very obstacles people like him are putting in our faces.

Follow me AFTER THE JUMP as I show how wrong Scalia was at every turn, both in his manifestly exaggerated predictions and his legal reasoning.


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What's Next: The Importance of the President in a Post-DOMA World


The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at the politics of implementing the Court's decision in Windsor.

The Supreme Court struck down DOMA. The narrowness of that 5-4 victory underscores the vital importance of who sits on that Court and, by extension, who nominates those jurists. But the president's role is broader than that. And now that we have shifted to a post-DOMA world, the president's role becomes outsized and essential.

President_Barack_ObamaIn short, President Obama has the power to make Windsor a real victory or a "skim milk" shadow of one.

The days leading up to decision day are all about the Court. Even as far back as the Prop 8 trial in Vaughn Walker's district court in San Francisco, our attorneys were playing both a short and long game: win the case at hand, but also keep on eye on winning a majority at the Supreme Court. The Ninth Circuit's narrower holding may have also had an eye on the Court: it cited countless Kennedy opinions and gave it a less risky way to be on the side of equality without going too far.

The days after the decision are all about implementation. And this is something the Court cannot do. It has no army, no staff of administrators and bureaucrats that will decide how the Court's decisions play out, and no means of enforcing the majority's will on the public. For this, we turn to the executive branch, and given that the Court did not touch crucial implementation questions, the role of the executive may prove to be the most important factor in the turning Windsor into a lasting gay rights victory.

Electing a supportive president -- on social, not just economic, issues -- and a supportive Congress matters, even when a victory comes from the words of the Supreme Court. For proof, we need look no further than the question of marriage recognition based on "state of celebration" versus "state of domicile."

I explain why, AFTER THE JUMP...

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Supreme Court Says No Standing to Appeal Prop 8: Summary and Analysis


20130326dS_MarriageEqualityRally_DC_05The freedom to marry will soon return to California thanks to the Supreme Court's decision that the Prop 8 proponents lacked the right to appeal Judge Vaughn Walker's original decision declaring Prop 8 unconstitional.

This opinion looks simple, but it's a bit of a surprising line up of judges, with the Chief Justice writing the opinion and being joined by Justices Scalia, Ginsburg, Breyer, and Kagan. The dissenters include Justice Kennedy (who wrote the dissent) and Justices Thomas, Alito, and Sotomayor.

At issue in this case is whether ordinary citizens have the right to defend in federal court the ballot initiative they wrote. But the disagreement between the majority and dissent is a little more arcane, concerning who gets to decide. The dissenters were content with the decision of the California Supreme Court, which broadly defined that state's initiative law to include initiative proponents' power to appeal an adverse ruling on their ballot measure. The majority, quite correctly, was having none of that. Federal standing is a matter of federal law, and no manner of state supreme court can say otherwise.

As a practical matter, this means that marriage will soon return to California. Not immediately, mind you; if you recall, Judge Walker's initial order requiring the issuance of marriage licenses to gay couples was stayed, first by him and then by the Ninth Circuit in an order separate from its substantive decision in Perry v. Brown. Going forward, a decision on standing means that if we want the Supreme Court to weigh in on a nationwide freedom to marry, we're going to need another case.


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Supreme Court Strikes Down DOMA: Summary and Analysis


EdiewindsorbanThe least of what happened today is that Edie Windsor is about to get a check for about $350,000.

Beyond that, the Supreme Court, in a majority opinion written by Justice Anthony Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, declared that Congress's attempt to deny federal recognition to legally married same-sex couples was just another example of bald stigmatization of a disadvantaged group. DOMA "humiliates" and "burdens" and creates a "separate status" for gay couples and, therefore, violates due process and equal protection guaranteed by the Fifth Amendment to the Constitution.

That's the DOMA decision in a nutshell. And although we know complex questions remain, we cannot deny that the end of DOMA is momentous. For the first time, the Supreme Court advanced the inherent equality of gay couples and looked with favor on the legitimacy of those marriages, at least when it comes to federal recognition of state-sanctioned unions.

Let's take a moment to celebrate and then bury ourselves in the details. It will take time to go through the decision with the rigor it deserves and rest assured, we will be covering this case for some time. For now, here are my five initial take aways from the decision in Windsor v. United States:

1. Jurisdiction was a red herring. There is a controversy and disagreement here, and there is no connection between having jurisdiction here and lack of standing in Prop 8.

2. No heightened scrutiny. The Court didn't need it because DOMA was particularly irrational. Still, the Court used a level of scrutiny higher than rational basis. A clear statement of that standard is not the best outcome (which would have been heightened scrutiny), but it got the job done.

3. This was a very Kennedy-esque decision. The opinion striking down DOMA reads like Kennedy's opinions in Romer and Lawrence.

4. Federalism issues played a role, but the decision was not limited to those questions.

5. The importance of marriage. This will mean a lot for when a gay marriage case comes through the courts next.


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DOMA and Prop 8 at the Supreme Court: 8 Things to Watch For


Supreme-court-justicesThis is the last week of the 2012-2013 term and today is another "Decision Day," where the Court will release some of its still pending opinions after 10am. There are several undecided cases, including a groundbreaking one on the Voting Rights Act, but the LGBT community is waiting -- always eagerly, sometimes impatiently -- for the Court to rule on the fate of DOMA and Prop 8. 

Last week, I took a longer view, arguing that the legal landscape in the post-DOMA and post-Prop 8 world will be more complex. I argued that jurisdictional holdings would give us positive, but unsatisfying results. I then discussed the lingering questions for federal marriage rights for gay couples even after DOMA is erased. And I touched on the implications for those who are in civil unions and registered domestic partnerships.

In anticipation of word from One First Street this week -- if not today, then Thursday -- keep these 8 things in mind:


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