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Seven Takeaways from Marriage Week at the Supreme Court


SupremesFor 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.


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DOMA at the Supreme Court: Summary and Analysis of the Argument, Part 2


ClementLet's pick up where we left off. So far, we've learned that some of the justices expressed concern about jurisdiction to hear Windsor. But, Professor Jackson's argument did not fare well at the Court, though, either. Several justices were likely moved the fact that the federal government is still on the hook for Edie Windsor's $350,000 claim. The mere fact that the Administration's tactics of first defending, then opposing, then winning, and still appealing is unprecedented, does not necessarily make it improper. The Administration's obligations to Ms. Windsor gave it the power to appeal to a higher court, so the Court has jurisdiction to hear the case no matter what. The standing of House Republicans to be the ones to defend DOMA becomes less important, in that case. 

We learned that whether the House has standing seemed less of a concern for the Court than whether the procedure the Administration used to get the case got to the Court was proper. It is for this reason, taking it all with a healthy dose of salt, that I think the Court will find it has jurisdiction to hear the case.

AFTER THE JUMP, let's proceed to the substantive portion of the argument, where Paul Clement showed his true colors as an abettor of discrimination and the Court gave us every reason to think it finds DOMA unconstitutional. The question now is the rationale: Will we get a federalism/states' rights decision that would give us a victory, but come back to bite us the next time we're trying to defend a federal civil rights law we like? Or, will we get an equal protection holding that will advance the cause of gay rights in the courts for generations to come? I don't think we can answer this from the questioning alone, but we can tentatively conclude that:

  • Federalism played an important role in the justices' questioning, but not to the exclusion of equal protection. Look for a decision to be informed by both.

  • When it comes to Justice Kennedy, he showed consistent skepticism on federalism grounds.

  • The Chief Justice's toughest questions to the anti-DOMA attorneys involved a somewhat related hypothetical, suggesting that the Chief was scraping the bottom of the barrel to find a pro-DOMA argument.


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A Look at Where We Are with the Defense of Marriage Act (DOMA) and The Courts


Last week, lawyers for House Republicans tried to squeeze the Defense of Marriage Act (DOMA) through an ever shrinking window of constitutionality. And, they had better hurry: The Supreme Court will, I am confident, soon close it for good.

Windsor_doma_20110223The occasion for Paul Clement's latest jurisprudential acrobatic act was the hearing before the Second Circuit Court of Appeals in Windsor v. United States, a DOMA challenge brought by the ACLU on behalf of Edie Windsor, who had to pay $350,000 in estate taxes when her same-sex spouse died. Had DOMA not been in effect, Ms. Windsor, like widows and widowers from opposite-sex couples, would not have had to pay a cent. That is because DOMA Section 3 states that the federal government will only recognize as valid marriages between one man and one woman.

You may recall that Ms. Windsor (right) and the ACLU won their case in the district court. There, Judge Barbara Jones held that DOMA was unconstitutional under any standard of review: those defending the law could not even offer a legitimate and rational reason for discriminating against gay couples in the provision of federal marriage benefits.

But, every step in this particular DOMA case -- the others are Gill v. OPM and Massachusetts v. Health and Human Services, already waiting at the Supreme Court's door, and Golinski v. OPM, which is similarly on its way -- is special because it provides us with the most direct means of clarifying the standard of review for all laws that discriminate on the basis of sexual orientation.

AFTER THE JUMP, I will briefly summarize the Second Circuit argument and explain why this case is so important and where we go from here. 


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House Speaker John Boehner Triples DOMA Defense Budget

American taxpayers may now have to cover legal defense of the discriminatory Defense of Marriage Act (DOMA) by House Republicans to the tune of $1.5 million,  after a limit on the amount attorney Paul Clement could charge the goverment was increased this week from $500,000, Think Progress LGBT reports:

Clement The [House of Representatives] agrees to pay [Clement's law firm] for all services to be rendered pursuant to this Agreement a sum not to exceed $750,000.00. It is further understood and agreed that, effective October 1, 2011, the aforementioned $750,000 cap may be raised from time to time up to, but not exceeding, $1.5 million, upon written notice of the [House] to the [firm].

Clement has already spent the $500K, Think Progress notes.

Alvin McEwen at Holy Bullies and Headless Monsters takes a look at what it what spent on:

Let's spotlight the highlights - or rather lowlights - of Clement's DOMA defense thus far:

1. Clement tried to sneak in the testimony of former NOM chair Maggie Gallagher in a way which would have kept her from being cross-examined.

2. A professor cited by Clement in a brief defending DOMA, Lisa Diamond, complained that her work was being distorted.

3. Clement is also citing - in a second hand fashion - junk science from discredited researchers. In his defense of DOMA, Clement cites the work of Case Western Reserve University law professor George W. Dent, Jr.

More of McEwen's excellent post here.

Republicans Defend DOMA with an Old Twist


 Last week, Paul Clement filed a brief on behalf of the House Republican majority in support of the Defense of Marriage Act (DOMA) in Edith Windsor's case in the Second Circuit.

WindsorIf you remember, Ms. Windsor was forced to pay an inheritance tax when her long-time partner, Thea Spyer, passed away. Normally, federal tax law allows a spouse who dies to leave her assets, including the family home, to the other spouse without incurring estate taxes. But, since DOMA denies federal marriage recognition to same-sex couples, Ms. Windsor and the late Ms. Spyer were treated as if they were strangers. President Obama thinks DOMA is unconstitutional and has argued that under the heightened scrutiny standard appropriate for any state action that discriminates on the basis of sexual orientation -- which DOMA does -- DOMA should be struck down.

House Republicans stepped into the case when the President refused to defend this indefensible law and, as predicted by many, the Republican arguments in favor of DOMA are the tried and tired arguments that traditionalists have used for years. For the most part, Mr. Clement's arguments have been losers at court in the Obama Era, so the left need not exaggerate the brief's failures. Let's be honest about the debate and not resort to demagoguery about homophobia and hatred. These are, for the most part, standard conservative arguments. Except, that is, for one twist on an golden oldie.


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Boehner Denies DOMA Contract with Atty Paul Clement Violates Law

House Speaker John Boehner denied on Thursday that a contract with attorney Paul Clement regarding the House defense of the Defense of Marriage Act was executed illegally, the Washington Blade reports:

John_boehner The contract was executed with Clement through his partnership with the law firm Bancroft LLC. Clement had earlier been contracted to defend DOMA in court through his employment at King & Spalding, but the firm dropped the agreement to defend DOMA, citing an inadequate vetting process prior to taking up defense of the statute. Clement resigned from his position at King & Spalding and went to Bancroft, where he pledged to continue litigating on behalf of the law.

But many lawmakers have questioned the source of the funds for hiring Clement because they weren’t appropriated before his contract was executed and the Bipartisan Legal Advisory Group has no budget to allocate funds for this purpose.

Rep. Mike Honda (D-CA) expressed concern in mid-May that Boehner's agreement could be in violation of the Antideficiency Act which prohibits "involving the government in any obligation to pay money before funds have been appropriated for that purpose."

Said Boehner: "This hiring was approved by the Bipartisan Legal Advisory Group. I’m confident that it complies with all of the rules of the House."


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