Friday, April 5, 2013

Wrapping up the week at the Supreme Court with Mary Bonauto

Post by Laura Kiritsy, Manager of Public Education

GLAD Civil Rights Project Director Mary Bonauto (right) discusses
DOMA and the Supreme Court on the Rachel Maddow Show March 27

On the heels of two of the most exciting and important days in recent LGBT history – the Supreme Court arguments in the Perry and Windsor cases – our own Mary L. Bonauto gave her expert analysis on the arguments in a conference call with GLAD’s Equal Justice Council late last week. Not surprisingly, we had the most RSVPs we’ve ever had for one of our monthly EJC calls.

Before summarizing Mary’s analysis, allow me to kvell for a moment, and point you toward a recent New York Times profile that does a fantastic job detailing Mary’s and GLAD’s historic and strategic contributions to the marriage movement, work that made last week’s Supreme Court showdown possible. She also wound up  on Rachel Maddow’s show –– and went head to head with the Family Research Council’s Ken Klukowski on PBS News Hour, among several other media appearances.

Now, a few highlights of Mary’s analysis, which was offered with the caveat that she was giving her “tentative impressions” of the arguments and the questions the justices asked, rather than making a prediction about case outcomes. 
Mary Bonauto (center) with Freedom to Marry's Evan Wolfson,
San Francisco Chief Deputy City Attorney Therese Stewart and
in the background Maura Healy (left) from the MA Attorney General's
office and GLAD Board President Dianne Phillips

Mary sounded an optimistic note about United States v. Windsor, the challenge to Section 3 of the federal Defense of Marriage Act, better known as DOMA.

Based on the very active questioning, there were at least five justices who expressed concerns about DOMA’s constitutionality because of its “uniqueness in federal law” as a cross-cutting definition applicable through the entire US Code and its “singularity” in wiping out only the marriages of same-sex couples for federal purposes.

Paul Clement, the attorney hired by the US House leadership to defend DOMA, did not argue the procreation-related justifications that appeared in his brief.  That stood in contrast to the day before, when Charles Cooper, arguing for the Prop 8 proponents, cast “responsible procreation” as the central justification for marriage and thus for eliminating marriage for same-sex couples in California.

Instead, Mary explained, Mr. Clement pressed a “federal interest in uniformity” to justify DOMA.  His argument was that DOMA creates uniformity by treating a same-sex couple from Massachusetts like one from Oklahoma. Of course, the difference between the two states is in their marriage laws, and several justices were quick to observe that the only uniform federal rule has been federal deference to state marital status determinations.

Justice Breyer, among others, also questioned whether uniformity explains why the 1996 Congress singled out the marriages of same-sex couples for disrespect under federal law:  Why not deny respect to marriages from states where people don’t have blood tests?  Or anyone under age 18?  Wouldn’t those distinctions be arbitrary he asked, and Mr. Clement had no answer. 

In one of the more dramatic moments, Justice Kagan questioned whether a concern for uniformity really had anything to do with DOMA’s passage, and then read from the 1996 House Judiciary Committee Report on DOMA citing “disapproval of homosexuality” as one of DOMA’s purposes.  Justice Ginsburg later spoke of “rank discrimination.” 

Of course, both the Hollingsworth v. Perry and U.S.  v. Windsor cases are critically important, not only because they are about access to marriage and equal treatment of our marriages, but because they will tell us so much about whether the grand promises of equal protection and liberty for all can eradicate official discrimination against LGBT people’s families.

GLAD’s marriage work continues as we seek to secure Rhode Island as the 6th New England state with marriage equality.  And ever since same-sex couples began marrying in 2004 as a result of our win in Goodridge v. Dept. of Public Health, we have seen first-hand how DOMA inflicts harm by treating married same-sex couples as single for all federal purposes, including for vital protections involving social security, health insurance, family leave, and protections for active duty military and veterans.

Eradicating DOMA’s double standard is why we litigated two DOMA cases of our own, Gill v. Office of Personnel Management and Pedersen v. Office of Personnel ManagementThe cases are currently on hold as we await the Supreme Court’s ruling in Windsor, but Mary lent her substantial expertise on DOMA (along with others on the GLAD DOMA team) to the Windsor legal team by coordinating the amici curiae – “friend of the court”— briefs.

In terms of case outcomes, the most favorable outcome is obviously a ruling striking down DOMA in toto on equal protection grounds.  Such a precedent would be a condemnation of sexual orientation-based double standards from our nation’s highest court.  “It could also be a split decision where it’s four [justices for] equal protection, one [justice for] federalism, but five of them agree on the invalidity of DOMA,” Mary theorized. “It could also be five (or more) for equal protection.  We have to wait and see.”

Mary offered a few other scenarios, including the unlikely scenario of a court ruling upholding the constitutionality of DOMA Section 3.  Even then, there is a path forward.  The law’s fate would then be in the hands of our federal lawmakers, she said, noting that the Respect for Marriage Act, a DOMA repeal bill, has been introduced in several recent Congressional sessions.  Yet, with ENDA still pending after two decades, the road ahead is unpredictable at best.

Another unlikely scenario is that the court could invalidate DOMA on federalism grounds, declaring simply that the federal government has no role in saying who is married, even for purposes of federal programs. GLAD has always stated that Congress can determine the contours of federal programs, but that it must comply with the Equal Protection clause when doing so, including when it bases eligibility on “definitions” like DOMA.

GLAD has also consistently argued that federalism is relevant in informing the equal protection analysis:  where the federal government does not itself marry people and states do, what “federal interest” justifies DOMA’s unprecedented exclusion of a class of valid marriages from laws governing marital benefits and burdens?

At the same time, the justices are also weighing if the parties before them present a “case or controversy” that allows them to weigh in and decide the question. The Justices asked that the parties address the “jurisdiction” question because the Obama administration decided to stop defending DOMA in court because it came to believe the law is unconstitutional.

Although the US is now effectively on  the same side as Edith Windsor, the New York lesbian who challenged DOMA because the federal government didn’t recognize her marriage to her late spouse and taxed that spouse’s estate, Mary is hopeful that the court will reach the merits of the case. The court can find adversity, Mary noted, where the lower courts found DOMA unconstitutional and ordered reimbursement to Edith Windsor from the US Treasury, and also because the President continues to enforce the law.

There were also arguments about whether the Bipartisan Legal Advisory Group, a group of U.S. House members, had “standing” – or the legal right – to take up the legal defense of DOMA after the Obama administration stopped.  That group did not act for the whole House and has no particular and personal injury, but instead only a general (even if passionate) interest in DOMA being enforced.

Similarly, the Supreme Court is also weighing whether or not they have jurisdiction to hear Hollingsworth v. Perry.  The State of California did not appeal when Judge Walker invalidated Prop 8 after trial in August 2010.  Like BLAG in the DOMA context, the proponents are not personally harmed by Prop 8.  Moreover, private citizens do not normally have a basis for asserting the interests of the state itself.

Mary noted that five justices seemed “very concerned” about whether Prop. 8 proponents should have appealed Judge Vaughn Walker’s District Court decision that the measure was unconstitutional to the 9th Circuit Court of Appeals, which upheld Walker’s ruling. If the Supreme Court finds that the Prop 8 proponents had no standing to appeal, the case would be dismissed, resulting in a significant victory in restoring marriage in California.

Despite all the wrangling over jurisdiction at oral argument, Mary theorized that it would be odd for the Court to avoid the merits of the cases. “It would be quite odd, I think, for the Supreme Court to have granted review in both of these cases and then suddenly to decide that neither of them should have been before it.”

The justices have now retreated to their chambers to deliberate, digest the many party and amicus briefs filed in the cases, and exchange draft opinions. There’s no predicting the outcome though the reams of speculation and analysis that have already been written will certainly keep you – and me - occupied from now until we actually get a decision, mostly likely sometime in June. 

Like I always say, stay tuned.

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