Another big, bold stroke for gay rights

[babylonsister]

http://www.washingtonpost.com/blogs/plum-line/wp/2013/02/28/another-big-bold-stroke-for-gay-rights/

Another big, bold stroke for gay rights

Posted by Greg Sargent on February 28, 2013 at 7:22 pm


As expected, the Obama administration has submitted a friend of the court brief in the case challenging Proposition 8 before the Supreme Court. Just as gay rights advocates had hoped, Obama’s Solicitor General has made a sweeping case against Proposition 8 as unconstitutional, which is a bold move and makes it more likely that the Supreme Court will strike down the law with a similarly sweeping argument. This in turn could set a precedent for challenging the constitutionality of other state laws banning gay marriage — potentially leading to full equality across the country.

In short, in this brief, the United States government has put the force of a fully fleshed out legal argument behind Obama’s historic words during his Inaugural Address: “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

The key to the brief is that it makes two arguments. The first is that it agrees with the ruling of a lower court — which found Prop 8 unconstitutional — that challenges to the constitutionality of such laws should require that they are subjected to “heightened scrutiny.” That means the court should hold their rationale for discriminating to an extremely high standard, and strike them down if they fail to have a credible justification. The brief does that here, in a reference to previous Supreme Court ruling in cases involving challenges to discriminatory laws:

snip//

This is exactly what the lawyers arguing the case against Prop 8 had hoped for. Theodore Boutrous, a lawyer who is arguing for the plaintiffs along with Ted Olsen, emails me this:

“This is a powerful brief by the United States placing the full weight of its authority in favor of equality for all Americans. This is an important day in this nation’s history. If the Court agrees with the United States that ‘heightened scrutiny’ applies, that is a clear path to marriage equality across the United States, because marriage bans in other states cannot satisfy that standard, either.”

Because Supreme Court justices give weight to the opinion of solicitors general, this makes it more likely — though it certainly doesn’t assure this — that the Court will adopt an equally sweeping ruling. It sets forth a legal view that comports with Obama’s view that “the love we commit to one another” should be equal before the law. It sends a strong signal that the administration believes the culture is ready for full equality for gay and lesbian Americans. If the Court responds in kind, it will give gay advocates a powerful weapon to challenge other state laws around the country banning gay marriage, and they’d likely be toppled as unconstitutional — one by one. This could truly help put this persistent relic of legalized discrimination on the road to extinction.

[Luminous Animal]

1. Actually, it is the cowardly "states rights" position....

http://www.scotusblog.com/2013/02/u-s-endorses-limited-gay-marriage-right/

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution.

What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married.

The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

See more at: http://www.emptywheel.net/2013/02/28/the-obama-doj-files-a-timid-brief-in-perryprop-8/#sthash.KcgFFwXi.dpuf

[ProSense]

2. Where does it say

"Actually, it is the cowardly "states rights" position...."

...that it's a "cowardly" anything?

California’s Proposition 8 that same-sex marriage should be required in eight more states, beyond the nine that already permit it, although it stopped short of explicitly calling for the Justices to extend the right to the entire nation.

Here was the government’s key argument why the Golden State’s ban on same-sex marriage fails the constitutional test the administration suggested: ”California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8.” Solicitor General Donald B. Verrilli, Jr., filed the brief shortly after 6:30 p.m. Thursday. California is one of the eight states that would be covered by that argument.

Much of the logic of the government’s brief — its first entry into the controversy over the 2008 ballot measure – could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.

Quick Analysis of DOJ Prop 8 Amicus Brief

<...>

1. Makes the argument for intermediate scrutiny of sexual-orientation-based classifications under Equal Protection Clause (the current standard for sex-based classifications). No argument that sexual orientation merits strict scrutiny. Appeals CT decision irrelevant on scrutiny question b/c questions of law merit no deference in a higher court.

2. No direct argument for a Due Process right to same-sex marriage.

3. Argues that the issue of EP right to same-sex marriage & standard of review is a novel issue; no precedent case is directly on point.

4. Prop 8 fails intermediate scrutiny b/c asserted state interests are insufficient under the EPC.

5. Debunks argument that state interest in protecting against accidental procreation is sufficient; cites abundant precedent defining marriage as a much broader institution w/regard to both purposes and features. Also, even if the interest were real/substantial, Prop 8 fails to advance it (required under intermediate scrutiny) because SSM has no effect on straight people's decisions to marry.

6. Uses a policy argument to counter opposition briefs that argue under rational basis review the state interest can be modest and only need arguably advance that interest. Claims that this rationale supports bans on sterile & elderly people's marriages.

7. Against the argument that basically marriage is not a right, SCOTUS should look at the actual operation of the institution; "THE CONFERRAL BY THE GOVERNMENT OF CERTAIN RIGHTS TO SOME INDIVIDUALS PRECLUDES THE DENIAL OF THOSE SAME RIGHTS TO OTHERS— EVEN IF THERE WAS NO OBLIGATION TO CONFER ANY RIGHTS IN THE FIRST PLACE."

8. W/regard to opposing arguments that the initiative process should support a "cautious" SCOTUS approach, refutation of that argument as both a legal matter (wasn't on Voter Info language) and under scrutiny (doesn't advance any of those interests, Prop 8 not meant to be temporary).

9. A number of subsidiary, asserted state interests in prohibiting SSM are invalid; see pp. 32.

This didn't end up too short but it's a pretty full synopsis. I welcome additional comments that either clarify/add to/disagree with my summary. Thanks DOJ for the great brief.

http://www.dailykos.com/story/2013/02/28/1190602/-Quick-Analysis-of-DOJ-Prop-8-Amicus-Brief

[Luminous Animal]

3. ARGUMENT: PROPOSITION 8 VIOLATES EQUAL PROTECTION

From the brief.

The Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives
to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.

....

Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners a
ll the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.”

In other words, the 14th Amendment applies very narrowly to those states that already offer domestic partnerships that confer the same rights as would marriage. "All persons similarly situated..." So, if you are in a state that doesn't offer a similar situation to marriage, the Feds argue, the 14th Amendment does not apply to you.

Cowardly.


You can read the brief here:

http://www.emptywheel.net/wp-content/uploads/2013/02/DOJPerryBrief.pdf



Much of the logic of the government’s brief — its first entry into the controversy over the 2008 ballot measure – could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.

DID NOT ENDORSE THAT IDEA EXPLICITLY. - The cowards way out.

[ProSense]

5. It's amazing

"Cowardly."

...that you haven't posted shit about this case, but now that the administration has acted, you're determined to contradict the people directly involved in the fight with cheap attacks on what is a strong case.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=2443214

[Luminous Animal]

6. I worked my ass off to defeat prop 8. I worked my ass off to organize people to write letters to

the CA Supreme Ct. I have argued for marriage equality on DU. I have been following the case.

I have, actually, posted my complaints here on DU about the Obama Admin's stance of marriage equality as a states issue and I think that stance is bullshit AND cowardly.

[ProSense]

7. And others disagree with you. n/t

[Luminous Animal]

9. I'll accept disagreement about the word cowardly but to call this a BOLD move

is an exaggeration. In support of marriage equality, the DOJ and Obama, did the least that they could do.

[ProSense]

13. From

"I'll accept disagreement about the word cowardly but to call this a BOLD move is an exaggeration."

...the OP:

Theodore Boutrous, a lawyer who is arguing for the plaintiffs along with Ted Olsen, emails me this:

“This is a powerful brief by the United States placing the full weight of its authority in favor of equality for all Americans. This is an important day in this nation’s history. If the Court agrees with the United States that ‘heightened scrutiny’ applies, that is a clear path to marriage equality across the United States, because marriage bans in other states cannot satisfy that standard, either.”

Adam Umhoefer:

The Government’s action today is a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded. It is an unprecedented call to action by our Government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=2443214

I don't think it's an exaggeration to call a "powerful" brief "bold."

It's a very detailed and well-thoughout and strong brief:

California’s Proposition 8 that same-sex marriage should be required in eight more states, beyond the nine that already permit it, although it stopped short of explicitly calling for the Justices to extend the right to the entire nation.

Here was the government’s key argument why the Golden State’s ban on same-sex marriage fails the constitutional test the administration suggested: ”California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8.” Solicitor General Donald B. Verrilli, Jr., filed the brief shortly after 6:30 p.m. Thursday. California is one of the eight states that would be covered by that argument.

Much of the logic of the government’s brief — its first entry into the controversy over the 2008 ballot measure – could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.

Quick Analysis of DOJ Prop 8 Amicus Brief

<...>

1. Makes the argument for intermediate scrutiny of sexual-orientation-based classifications under Equal Protection Clause (the current standard for sex-based classifications). No argument that sexual orientation merits strict scrutiny. Appeals CT decision irrelevant on scrutiny question b/c questions of law merit no deference in a higher court.

2. No direct argument for a Due Process right to same-sex marriage.

3. Argues that the issue of EP right to same-sex marriage & standard of review is a novel issue; no precedent case is directly on point.

4. Prop 8 fails intermediate scrutiny b/c asserted state interests are insufficient under the EPC.

5. Debunks argument that state interest in protecting against accidental procreation is sufficient; cites abundant precedent defining marriage as a much broader institution w/regard to both purposes and features. Also, even if the interest were real/substantial, Prop 8 fails to advance it (required under intermediate scrutiny) because SSM has no effect on straight people's decisions to marry.

6. Uses a policy argument to counter opposition briefs that argue under rational basis review the state interest can be modest and only need arguably advance that interest. Claims that this rationale supports bans on sterile & elderly people's marriages.

7. Against the argument that basically marriage is not a right, SCOTUS should look at the actual operation of the institution; "THE CONFERRAL BY THE GOVERNMENT OF CERTAIN RIGHTS TO SOME INDIVIDUALS PRECLUDES THE DENIAL OF THOSE SAME RIGHTS TO OTHERS— EVEN IF THERE WAS NO OBLIGATION TO CONFER ANY RIGHTS IN THE FIRST PLACE."

8. W/regard to opposing arguments that the initiative process should support a "cautious" SCOTUS approach, refutation of that argument as both a legal matter (wasn't on Voter Info language) and under scrutiny (doesn't advance any of those interests, Prop 8 not meant to be temporary).

9. A number of subsidiary, asserted state interests in prohibiting SSM are invalid; see pp. 32.

This didn't end up too short but it's a pretty full synopsis. I welcome additional comments that either clarify/add to/disagree with my summary. Thanks DOJ for the great brief.

http://www.dailykos.com/story/2013/02/28/1190602/-Quick-Analysis-of-DOJ-Prop-8-Amicus-Brief

Cherry picking one aspect and ignoring the broader context with implications for the country, doesn't change that.

[Luminous Animal]

15. I can and will pick the parts of the brief that I don't like.

Basically, the DOJ says separate but equal is not okay only in those states in the states that grant domestic partner. BUT, they argue that their brief is narrow in that it ONLY addresses the separate but equal issue.

Personally, I find the 4 states who filed briefs in support of marriage equality for ALL Americans... Four states which currently have NO domestic partnership laws and NO marriage equality, a far bolder and braver position.

[Le Taz Hot]

11. And others AGREE with you.

I'm one of them. I think this administration has acted abominably on LGBT issues and has had to be dragged into it.

[Luminous Animal]

12. Thank you.

I am fucking sick of fish bait being served up as caviar.

[ProSense]

14. Here:

"I am fucking sick of fish bait being served up as caviar."

...more "fish bait":

Obama administration asks Supreme Court to strike down Defense of Marriage Act
http://www.democraticunderground.com/10022416121

LGBT People Will Receive First-Ever Domestic Violence Protections Under VAWA
http://www.democraticunderground.com/10022443504

[ProSense]

4. Holder's statement

Statement by Attorney General Eric Holder on the U.S. Government’s Filing in Hollingsworth v. Perry

Attorney General Eric Holder issued the following statement today on the U.S. government’s filing in Hollingsworth v. Perry:

“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law. Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

http://www.justice.gov/opa/pr/2013/February/13-ag-258.html

There other case: Obama administration asks Supreme Court to strike down Defense of Marriage Act
http://www.democraticunderground.com/10022416121

U.S. Government Calls on Supreme Court to Recognize Marriage Equality

Post by Adam Umhoefer, Executive Director

Today, Solicitor General Donald B. Verrilli, Jr., filed a brief on behalf of the United States Government as amicus curiae, or “friend of the Court,” in support of AFER’s Plaintiffs challenging California’s Proposition 8.

The brief urges the Supreme Court to affirm the landmark federal court of appeals ruling that upheld the decision of the federal district court that found Proposition 8 unconstitutional. Read the brief below or download it here.

The Government’s action today is a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded. It is an unprecedented call to action by our Government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law.

AFER looks forward to having Solicitor General Verrilli and the Federal Government by our side as we make the case for marriage equality for all before the Supreme Court.

- more -

http://www.afer.org/blog/u-s-government-calls-on-supreme-court-to-recognize-marriage-equality/

[Cha]

10. Would you look at

Holder!

Thanks ProSense

[Cha]

8. Big, Bold and Beautiful.. The Dam was broken and

the good news keeps Flowing!
thanks babylonsistah!

[X_Digger]

16. Knocking down all laws that outlaw same-sex marriage is not the same as marriage equality..

My wife and I were having this discussion earlier today.

It moves the needle to the middle, where marriage equality isn't actively discriminated against. It does not push the needle over to full equality.

We still need courts to endorse equality or preferably the congress to pass a "CRA 2013" (Civil Rights Act) that puts it to rest once and for all.

[Hekate]

17. POTUS just keeps on keeping on. This past week or so has brought good progress

I'm very pleased. Theodore Boutrous and Ted Olsen must be toasting each other tonight.

Hekate

[sheshe2]

18. We are moving forward!

I do not give a damn if they are baby steps. They move us forward!

Damn good news, babylonsister!

[Scurrilous]

19. K & R

[blueclown]

20. Hopefully Mr. Verilli has a better day in court than he did during the Affordable Care oral argument

He was downright dreadful compared to Paul Clement, the laywer representing the National Federation of Business.