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

 

Edie Windsor Files SCOTUS Brief in Case Challenging DOMA: READ IT

Lawyers for Edie Windsor, the 83-year-old lesbian widow plaintiff in the Supreme Court case challenging DOMA, filed their brief with the Supreme Court today, Buzzfeed reports:

Specifically, Windsor argues laws like DOMA that classify people based on their sexual orientation should be subjected to "heightened scrutiny" by courts, which demands the government to provide an "important" reason for the law in question. A similar argument was made by the Obama administration in a filing last Friday.

In discussing the standards that courts use when determining whether heightened scrutiny should apply, Windsor argues that gays and lesbians have faced a history of discrimination, and that their being gay does not affect their ability to contribute to society. Additionally, she argues that sexual orientation is not, generally speaking, fluid, and that the group "lacks political power" because of prejudice...

...Quoting from the Obama administration's Friday filing, Windsor then notes, "At oral argument before the court of appeals, 'BLAG's counsel all but conceded,' that its [given] justifications for DOMA could 'not withstand intermediate scrutiny.'"

Even if the court does not choose to apply such heightened scrutiny to DOMA, Windsor maintains the law still should be struck down as unconstitutional. The lawyers put forward three areas where the Supreme Court has struck down laws under the lowest form of scrutiny, called rational basis review: when the purpose of the law is to harm a targeted group; when a law subjects such a group to broad disadvantages for no legitimate reason; and when laws are not the type of laws the federal government generally passes.

Windsor then stated that "DOMA raises all three of these red flags" — noting the "language of panic and fear" in the legislative debate over DOMA, DOMA's "uniquely broad scope," and DOMA's "unprecedented intrusion into an area of traditional state regulation."

Read the full brief, AFTER THE JUMP...

And Chris Geidner's full report here.

The Supreme Court, Prop 8, and DOMA: The Standing Question

BY ARI EZRA WALDMAN

This is the second in a series of analyses about the Supreme Court's decision to hear cases challenging the constitutionality of the Defense of Marriage Act and Proposition 8. Today's discussion: Standing.

Standing is like an admission rule at a bar. Before you can even get through the door, you have to fulfill certain basic requirements, like being over 21, appropriately attired, and not already drunk and disorderly. And, in determining whether you meet the requirements, the bouncer looks at evidence: your driver's license, your general demeanor, and your clothes.

Courts have similar rules. In order to even have the chance to get your voice heard, you have to meet a host of requirements: your attorney has to be admitted to the bar (though there are times you can litigate by yourself), you had to have handed in your briefs or motions on time, and you have to be the right person to raise the legal issues. That's what we call standing. Normally, standing isn't such a big deal: if you hired me to fix your roof and I just decided not to, you're clearly the aggrieved or damaged party, so you can sue me for breach of contract.

Standing requirements ensure that courts only spend time on cases where there are actual controversies or conflicts between the parties just like ID requirements at bars ensure that alcohol gets served only to those 21 and over. So, it should come as no surprise that the Supreme Court is interested in whether Windsor v. United States, the Defense of Marriage Act (DOMA) case, and Hollingsworth v. Perry, the Prop 8 case, have been brought by the right people.

Many of us should be familiar with the standing discussion in the Prop 8 case; we've talked about it extensively here, here, and here. We haven't talked much about standing in the Windsor case, but it bears some resemblance. 

Let's consider these questions in more detail AFTER THE JUMP and discuss what might be behind the Supreme Court's decision to grant review of the standing questions.

CONTINUED, AFTER THE JUMP...

News: Berlusconi, Gay Tennis Player, Stormin' Norman, Log Cabin

A 24-year old woman has been arrested in connection to the upstate ambush that left two firefighters dead last week.

The dramedy television series Mom and Dads, about two gay guys raising a child with a straight woman, is kind of like an Israeli The New Normal, and is proving that same-sex parents are becoming a more everyday part of Israeli life: "For the most part Israeli society, which has made long and quick strides in gay rights in the past two decades, has reacted to the baby bump and the programs about it with nonchalance. Even the country’s sizable religious segment has merely shrugged at the series."

Baltimore Mayor Stephanie Rawlings-Blake will host same-sex marriages when they're legal in Maryland on January 1.

Former Italian Prime Minister Silvio Berlusconi has agreed to pay his ex-wife $48 million in annual alimony.

Troubled actor Nick Stahl was arrested after being caught masturbating at a porn shop.

"In Search of a Professional Gay Male Tennis Player in 2013."

Meanwhile, Chace Crawford is vacationing in Australia.

Justin Theroux tried and failed to have a private, shirtless moment with Jennifer Aniston in Cabo.

Actor Luke Evans was less shy while strutting his stuff on Miami Beach.

A look back at some of 2012's greatest photoshoots.

"The 25 Worst Anti-LGBT Villains Of 2012"

Gen. Norman Schwarzkopf, the man who led US forces during the first Gulf War, has died. "The seemingly no-nonsense Desert Storm commander's reputed temper with aides and subordinates supposedly earned him that rough-and-ready moniker ['Stormin' Norman']. But others around the general, who died Thursday in Tampa, Fla., at age 78 of complications from pneumonia, knew him as a friendly, talkative and even jovial figure who preferred the somewhat milder sobriquet given by his troops: 'The Bear.'"

Secretary of State Hillary Clinton plans on returning to work next week following her recovery from a recent bout of dehydration and exhaustion.

Outgoing Log Cabin Republican leader R. Clarke Cooper insists the timing of his leaving has nothing to do with the Chuck Hagel brouhaha: "Cooper said he informed the board he would depart the organization at the year’s end during an Oct. 20 meeting at the California Republican Party headquarters in Burback. Cooper said his announcement kept in line with earlier stated plans to leave Log Cabin in that time frame."

Incoming interim Log Cabin executive director Gregory T. Angelo backed Newt Gingrich during the Republican presidential primary.

Two new orchid species have been found in the Caribbean, and they're teeny-tiny: "One of the world's newest orchid species is also its most delicate, with tiny white flowers smaller than a dime. Yet the flower finds its home amid boulders near the banks of rushing streams in Cuba's remote eastern mountains."

With all the recent progress on equality, the LGBT inclusive Metropolitan Community Church is wondering what step to take next.

An interview with Susan Muska and Greta Olafsdottir, the documentarians behind Edie and Thea: A Very Long Engagement.

From MSNBC To Edie Windsor, A Bounty Of Marriage Equality Remarks: VIDEO

Filling in for Rachel Maddow last night, guest host Ezra Klein chatted with NYU constitutional law professor Kenji Yoshino about whether the Supreme Court, preparing to hear cases on the constitutionality of same-sex marriage bans, is swayed by public opinion. Will they consider in their decision the fact that more Americans than ever support marriage equality? And how does this case compare to Loving v. Virginia?

Meanwhile, over at The New Yorker, Richard Socarides also reflects on how far the nation has come on this nagging issue, and recalls the atmosphere at the White House after Bill Clinton signed the so-called Defense of Marriage Act that seems poised for deconstruction.

"I was on Bill Clinton’s White House staff when he signed DOMA, and it was a solemn, grave atmosphere in the building that day—but it was what the Administration felt the country demanded," Socarides writes. "Clinton has since said that he regrets signing the law, and he has endorsed its repeal and fought for the rights of same-sex couples. I’m sure that no one will be more relieved than he if and when the law is declared unconstitutional."

The New York Times points out that Windsor v. United States, a Supreme Court decision on which could once and for all resolve the debate over the federal definition of marriage, will feature a rematch between pro-DOMA lawyer Paul D. Clement and Solicitor General Donald B. Verrilli Jr. The men faced off during this year's health care case, as well, and their reunion before the court will be almost exactly a year since that historic face-off.

Speaking of Windsor, the woman for whom the case is named, Edie Windsor (pictured, right, with late wife Thea Spyer), told the Times she's "thrilled" the Justices are considering her case. She also said she's confident marriage bans will be overturned at some point. "If it doesn't happen our year, it will happen in other years. I'm sure of that."

Asked by Huffington Post's Lila Shapiro how she finds the energy to keep up the fight, 83-year old Windsor says her tenacity comes from being the baby of her family. "I'm the youngest in my family and the littlest one always gets pushed around a lot, so I'm strong," she said.

Watch video of Klein and Yoshino's remarks on public opinion and the Supreme Court AFTER THE JUMP. And if you click here, you can watch USA Today's interview with Windsor, who says she sees her lawsuit as less of a legal process and more of a "joyous" event.

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

BY ARI EZRA WALDMAN

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.

Court 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...