DOMA and possibly Prop 8 to be ruled on in Supreme Court in the coming term.

Northside Storm · Sep 3, 2012

Change and hope.

Section 3 of DOMA has been found unconstitutional in seven federal courts on issues including bankruptcy, public employee benefits, estate taxes, and immigration. As of 2012 five of those cases are awaiting a response for review from the U.S. Supreme Court.
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More recent cases have focused on section 3's definition of marriage. The courts, using different standards, have all found section 3 unconstitutional. Requests for the Supreme Court to hear appeals have been filed in four cases, listed below (with Supreme Court docket numbers):

Gill v. Office of Personnel Management (12-13 as BLAG v. Gill)
Massachusetts v. United States Department of Health and Human Services (12-15 as Dept. of HHS v. Massachusetts, 12-97)
Golinski v. Office of Personnel Management (12-16 OPM v. Golinski)
Windsor v. United States (12-63)
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http://hunterofjustice.com/2012/06/doma-supreme-court.html

The unanimity of the First Circuit's ruling that DoMA is unconstitutional virtually insures that a cert petition to the Supreme Court will be filed in the next 90 days, followed by an order granting certiorari in early October, followed by oral argument next winter, followed by a decision by June 2013.
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http://www.newyorker.com/online/blo...roberts-supreme-court-gay-marriage-cases.html

The Court will not have much flexibility in the DOMA cases. There is only one question presented: Is DOMA constitutional? It will have to be answered yes or no. In the Proposition 8 case, there are more options. The Court might restore same-sex marriage rights in California without finding a nationwide constitutionally based right to marriage equality. Even some advocates think that would be the best and most politically sustainable result. But there is little doubt that if the Court rules in favor of gay rights the decision will be significant, perhaps even historic. Most people assume that the fifth and deciding vote belongs to Justice Anthony Kennedy, who wrote the Court’s majority opinions in its two most recent big gay-rights rulings, Romer v. Evans (1996) and Lawrence v. Texas (2003).

Chief Justice John Roberts joined the Court in 2005, two years after Lawrence was decided, after only a short stint on the D.C. Circuit Court of Appeals. None of the gay-rights-related cases that have come before him as a judge give any significant clues as to how he might rule on the weighty constitutional issues he will face next term. Interestingly, as the Los Angeles Times reported in 2005, before he was on the bench he “worked behind the scenes for gay rights activists” in the Romer case who were represented at the time by his law firm, Hogan and Hartson.
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The "Kennedy Court" might just deliver another landmark progressive victory.

Romer v. Evans

Holding
An amendment to the Colorado Constitution that prevents protected status under the law for homosexuals or bisexuals was struck down because it was not rationally related to a legitimate state interest. Supreme Court of Colorado affirmed.

Majority Kennedy, joined by Stevens, O'Connor, Souter, Ginsburg, Breyer
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Kagan may have to recuse herself from some cases, but you can be sure what way she will vote when she doesn't. The votes are there for lasting, progressive change.

http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=49508

DOMA is constitutionally doomed

Here's where things got very interesting in both the 1st Circuit and Manhattan federal court decisions. Although it's true that the federal government has an economic interest in who gets married, it's not Congress's job to define marriage. That's the purview of individual states, as we know from the divide that had developed between states that permit same-sex marriage and those that have enacted bans. According to both Boudin and Jones, when the federal government meddles with states' rights, the doctrine of federalism demands intense analysis of equal protection considerations. As Boudin explained in the 1st Circuit opinion: "Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns."
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The trial court held that DOMA violates the Tenth Amendment and Spending Clause. In a companion case, Gill v. Office of Personnel Management, the same judge held that DOMA violates the Equal Protection Clause. On May 31, 2012, the First Circuit held the act violates the Equal Protection Clause, while federalism concerns affect the equal protection analysis.
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So many ways to strike a blatantly wrong law down.

No person shall [...] be deprived of life, liberty, or property, without due process of law
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While conservatives celebrate menial victories in federal appeals courts, progressives are quietly taking the Roberts/"Kennedy" court to task on multiple issues of deep constitutional and political importance. They have emerged, more often than not, with surprising victories. Even with the Court's dreaded "right-wing" swing, the issues being examined are so fundamental to the question of what America is and strives to be, that a "conservative" court can often, in the light of righteous and well-argued progressive cases, make judgements that push American progress forward.

America saw this with the Obamacare ruling and she will most likely see it in the upcoming DOMA/Prop 8 rulings.

Again, change and hope. Who would have thought this possible a mere decade ago? With President Obama's appointments of Justices Kagan and Sotomayor, all this has been made more than possible.

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DOMA and possibly Prop 8 to be ruled on in Supreme Court in the coming term.

Northside Storm Contributing Member

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