Seven Takeaways from Marriage Week at the Supreme Court

BY ARI EZRA WALDMAN

For three hours over two days, the Supreme Court discussed the freedom to marry. The justices asked questions about the law of the love after recent polling showed that 58 % of Americans, and a slew of moderate-to-conservative politicians, supported equality. This trend caught the attention of an unusually ascerbic Chief Justice, who said that leaders were "falling over themselves" to support gay rights. His convenient ignorance of the litany of burdens and discriminations we face every day, his insensitivity and willful ignorance of the plight of sexual minorities, and Roberta Kaplan's inadequate response to his flippancy should not damper the euphoric feeling that what happened this week was historic. The freedom to marry had a hearing at the Supreme Court, where the shallowness of discrimination was laid bare for the world to see. As we await favorable decisions in June, the world is a different place today than it was on Monday.

Many media are making conclusions about the end of DOMA, a narrow standing decision in the Prop 8 case, and the end of the culture wars with a victory for gay rights. Some of these predictions may turn out to be right, but we can't know that and it misses the true legal and political lessons from the last two days.

Having already offered detailed summaries and initial analysis of the Prop 8 (Part 1 and Part 2) and DOMA hearings (Part 1 and Part 2), I would like to take a step back and think more broadly. Here are the seven takeaways from Marriage Week at the Supreme Court.

1. The bench was "hot," asking lots of questions, but don't read too much into those questions.

Just because a justice asks a question critiquing one side's argument does not necessarily point to his or her ultimate decision. Judges play the devil's advocate for many reasons other than preening. If these cases were so open and shut, there would be no need for briefs, reply briefs, and oral argument; neither side ever has a perfect case. Therefore, the justices need to probe the logical, legal, and policy problems, not only to help them decide the case but also to determine the best way to decide the ultimate question. Oral argument questions are also just as much about persuading colleagues as challenging attorneys. Justice Ginsburg may have thought of something that the Chief Justice missed, or vice versa; Justice Sotomayor's demand that Paul Clement give her a single reason for discriminating against gay couples, and his inability to do so, may have worried the Chief and Justices Kennedy and Alito about siding with an impossibly weak argument.

SIX ADDITIONAL TAKEAWAYS, AFTER THE JUMP...

DOMA Plaintiff Edie Windsor Arrives at the Supreme Court: PHOTO

Via the Courage Campaign comes this photo of Edie Windsor arriving at the Supreme Court today for arguments on her case challenging the Defense of Marriage Act (DOMA).

Tweets the Courage Campaign: "We're seeing strong support outside today, but not as hectic as yesterday was."

Watch the activity outside the court LIVE now.

Make sure not to miss a Towleroad headline by following @TLRD on Twitter.

LGBT Legal Eagles Jon Davidson and Jennifer Pizer Await DOMA Case Outside SCOTUS: PHOTO

Here's Lambda Legal Legal Director Jon Davidson and National Marriage Project Director Jennifer Pizer in line outside the Supreme Court this morning, awaiting entrance for the consideration of the Edie Windsor DOMA case.

Davidson reports on Twitter: "Smaller crowds today, but those present clearly are aware of how momentous the case being heard shortly is. Can the federal government disregard some couples' marriages? How should courts judge constitutionality of laws that discriminate based on sexual orientation? Weighty issues indeed...Waiting in line for hours gives me a whole new appreciation of the legal question of 'standing.'"

Said Pizer: "Pizer: No protesters yet. It's a lot calmer."

DOMA Plaintiff Edie Windsor to Serve as Grand Marshal of NYC LGBT Pride March

NYC Pride announced today that DOMA plaintiff Edie Windsor, along with Harry Belafonte and Earl Fowlkes, will serve as Grand Marshals for the 44th annual NYC LGBT Pride March.

aid the organizers via press release:

Edith Windsor will be taking her fight against DOMA all the way to the Supreme Court after paying more than $360,000 in federal estate taxes upon the death of her partner of 44 years. Harry Belafonte has been a longtime advocate for civil rights and universal equality on a global scale. Earl Fowlkes serves as the President/CEO of the Center for Black Equity, whose mission is to fight for health, social and economic equity in the Black LGBT community.

“We believe this year will be historic. LGBT rights are expanding across the country and these individuals embody the soul of a movement far from over. They are tirelessly fighting for all of us. They are the great waves in a sea of hope: Edith's never-ending battle for marriage equality, Harry's unending fight for human rights, Earl’s focused leadership and selfless spirit. So with great pride, we congratulate them and honor them for their unwavering dedication to the idea of a more just and verdant future for all peoples,” said Chris Frederick, Managing Director of NYC Pride.

For more on this year's NYC Pride, visit their official site. This year's March takes place on June 30.

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...

212 Democratic Members of Congress Ask Supreme Court to Strike Down DOMA: BRIEF

212 Democratic members of Congress led by Rep. Nancy Pelosi (D-CA) and Senator Dianne Feinstein (D-CA) including all seven out LGBT members and some who voted for DOMA in 1996 have asked the Supreme Court to strike it down in a brief submitted today in the Edith Windsor case, Buzzfeed's Chris Geidner reports:

In summary, they agree with the Obama administration that laws like DOMA that classify people based on sexual orientation should receive heightened judicial scrutiny — but then go on to argue that DOMA is unconstitutional even if the court chooses not to proceed under such a heightened review:

The SF Chronicle adds:

A statement from the group said the amicus was filed because the members “want the Supreme Court to hear the full story from Congress, and to explain why they believe that Section 3 of DOMA is unconstitutional. They disagree with the arguments being made by lawyers hired to defend DOMA in court by the House Majority following the divided 3-2 vote of the House Bipartisan Legal Advisory Group (BLAG). The amicus brief filed today makes clear that BLAG does not speak for Congress, and that many members believe that Section 3 should be struck down because there simply is no legitimate federal interest in denying married same-sex couples the legal security, rights and responsibilities that federal law provides to all other married couples.”

Read the brief below:

 

DOMA Congressional Brief for Supreme Court 030113 by