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DOMA and Prop 8 Supreme Court LIVE: Will the Supeme Court Make History?

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Plaintiffs In Prop. 8 Case Just Got Engaged On The Steps Of Supreme Court

In what will probably be the first of many, a touching gay wedding proposal occurred this morning right in front of the cameras for the whole country to see. Igor Volsky at Think Progress is reporting that Paul Katami and Jeff Zarrillo, two of the plaintiffs in the Supreme Court Prop case, got engaged in front of the eyes of reporters after the decision striking down the law was announced. It was beautiful, romantic and soooo legal.

"We are American and we will not be treated like second-class citizens,” Katami said. “We just want to get married because it’s the natural next step in our relationship….So today is a good day. It’s the day I finally get to look at the man that I love and finally say will you please marry me" Katami said before he kissed his fiancé.

Does this mean we can (finally) stop inserting the word "gay" when we talk about wedding proposals and just call them wedding proposals? Love needs no qualifiers. 

Proposition 8 Decision: Key Quotes From Kennedy's Dissent

Picture Credit: PBS

The Supreme Court's decision on Hollingsworth v. Perry, the case dealing with California's Proposition 8, did not occur along ideological lines as the DOMA decision did. While DOMA was about whether a law was constitutional or not, the Prop 8 case was about whether the dispute over that law belonged at the Supreme Court in the first place.

A majority of justices — Roberts, Scalia, Ginsburg, Breyer, and Kagan — ruled it didn't. The logic is that in order to sue over a law, you must show the law has harmed you in a demonstrable way. A District Court in California ruled that Prop 8 was illegal, and if California had then appealed in order to defend its own law, it's pretty clear the state would have standing. But the state government declined to defend Prop 8, meaning a group of random conservative lawyers got together and decided to do it. The court ruled they did not have standing to challenge the District Court's decision.

The really interesting question is why the four dissenting justices — Kennedy, Alito, Thomas, and Sotomayor — thought the lawyers did have standing to appeal. The dissent by Justice Anthony Kennedy (who, incidentally, is a Californian) focuses on the unique nature of California's ballot-initiative system, which allows citizens to propose additions to the state constitution that can pass by a simple majority vote statewide (Real Talk: this system is a huge part of why the state is impossible to govern). Kennedy's dissent claims this system takes lawmaking power away from the state government and puts it in the hands of everyone in the state, which means that if you're a Californian, you have standing to sue over laws in California.

Here are some key quotes:

"Under California law, a [ballot initiative] proponent has the authority to appear in court and assert the State’s interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process. ... The State Supreme Court’s definition of proponents’ powers is binding on this Court." (pg. 2)

"The Court concludes that proponents lack sufficient ties to the state government. It notes that they “are not elected,” “answer to no one,” and lack “‘a fiduciary obligation’” to the State. But what the Court deems deficiencies in the proponents’ connection to the State government, the State Supreme Court saw as essential qualifications to defend the initiative system. The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement 'the theory that all power of government ultimatelyresides in the people.'”

"A prime purpose of justiciability [granting standing to argue a case] is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. ... And rather than honor the principle that justiciability exists to allow disputes of public policy to be resolved by the political process rather than the courts, here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic election."

"In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. ...  In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying ... a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so."

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Prop 8 Decision: Obama Calls Gay Couple on Live TV

As the Prop 8 victors celebrated in front of the Supreme Court building, they received a special telephone call from our very own, Barry Obama. He was aboard Air Force One. 

The sound quality is a bit muffled, but he says at the beginning, "We're proud of you guys and we're proud of California." 

In the video Sandy Stier, one of the victors, seems about to cry. And can you blame her?

The only other question is: How did Obama get their numbers so quickly? Guess we'll have to ask the NSA.

 

DOMA Section 2: States Still Don't Have to Recognize Gay Marriages

Picture Credit: Kevin Zolkiewicz

Despite the Supreme Court's ruling in United States v. Windsor on Wednesday morning, granted full marriage benefits to same-sex married couples, the controversial Section 2 of the 1996 Defense of Marriage Act still stands.

Section 2, which was not considered by the Supreme Court in the Windsor case, declares that states and territories of the United States have the right to deny recognition of same-sex marriages that originated in other states or territories.

Same-sex couples face several major problems that arise from Section 2 of DOMA. If a same-sex couple is married in Vermont, for example, and moves to Pennsylvania, their marriage is no longer valid.

That means that they will no longer enjoy the benefits of myriad federal tax deductions and other marriage-related federal institutions. Their marital status is effectively reduced to, as Justice Ruth Bader Ginsburg put it, "skim milk marriage."

Aside from being inherently unequal, having a marital status that varies with geographical location is a legal headache.

There's a good reason why the federal government likes to set national standards in the first place. Imagine if your driver's license was valid in Massachussetts but not in Connecticut; as you drove along Route 91, you'd switch from being a legal driver to an illegal one.

While same-sex couples won a major victory at the Supreme Court on Wednesday morning, it's clear that gay marriage still has a long way to go before it is unanimously recognized in America. It's equally clear that Section 2 of DOMA stands in the way of this goal.

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Prop 8 Ruling: Supreme Court Decision in Plain English

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The End Of DOMA: What Does That Mean For Your State?

The anti-gay marriage Defense of Marriage Act has been struck down in the Supreme Court, allowing gay couples to receive the same marriage benefits straight couples receive in the 12 states (and counting) where gay marriage is legal.

But what does the DOMA decision mean for the rest of the country?

Eight national polls on same-sex marriage have been conducted so far this year, according to the PollingReport.com database. The consensus of these polls is that support for same-sex marriage now exceeds opposition to it.

The Supreme Court decision only cements the rising national acceptance of gay marriage and gay rights in the U.S. 

As Nate Silver elucidates, public opinion will probably continue to swing heavily towards pro-LGBT positions in the future. Here are his extrapolated projections on potential future same-sex marriage ballot initiatives:

Minnesota was the last state to legalize gay marriage. 

Which state is next on that list? The Nevada State Senate passed a bill that would repeal a ban on same-sex couple marriages two months ago. The bill marks the first step on the long road to actually having same-sex marriage in Nevada. The bill's passage was filled with drama and revelations as the vote took place.

Nevada’s ban on same sex marriage was passed in 2000 and 2002 by ballot measure. The Nevada constitution requires two ballot votes for citizen-led constitutional amendments. It defined marriage as only being between one man and one woman, prevent all other marriages from being legally recognized by the state.

The debate on the legislative floor was filled with emotional pleas. Senator Justin Jones, a Mormon, shared the story of how he saw his gay brother-in-law at church every Sunday and how he could not vote against same-sex marriage. He said on the floor, "I would rather lose an election than look my brother-in-law in the eye every Sunday and tell him he doesn’t have the same rights as I do."

This will likely be how things continue to play out in state after state across the U.S. in coming decades. Even in the anti-gay stronghold of the South, we're seeing a (albeit small) acceptance of the issue: In Kentucky for instance, Governor Steve Beshear, a Democrat, has not taken a strong stance on the issue ... a small victory, as there is usually vehement antagonism against gay marriage in the South.

Still, as the growing tide of popular support continues to grow for the marriage rights of gays and lesbians — especially among younger voters. With so many people asking which states next, look back at a different kind of question …

Which states never?

Interestingly, the seven states least likely today to support marriage equality are not the seven most conservative states (in fact, only two — Mississippi and Utah — would make both lists); they weren't even the biggest Romney supporters. But they do tend to be Southern (Utah excluded), mired by Republican-style politics, a staunchly conservative spirit, and a deeply traditional culture.

The South will be the toughest battleground in the crusade for gay marriage.

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States Where Gay Marriage is Still Illegal Prove The Fight Is Far From Over

Picture Credit: Christopher Edilts

In the Supreme Court's historic ruling on the Defense of Marriage Act, it did not find that there's a constitutional right to a same-sex marriage. Indeed, that wasn't the question before it.

The picture on the ground remains incredibly mixed. A majority of states still do not allow for same-sex couples to get married. While the DOMA decision is a landmark moment, the movement for full equality still has many milestones ahead of it.

A slew of states (those in red), do not allow for same-sex couples to be married. They include Texas, Idaho, Wyoming, Florida, Georgia, there's almost too many to list ... But after today, a lot people are going to be relishing the next fight.

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The Supreme Court Gay Marriage Decision in Plain English

10:17 a.m. Getting the big news out of the way: Today's decisions do not legalize OR outlaw gay marriage nationwide. The Roberts Court has issued fairly narrow rulings that deal only with the cases at hand.

First up is the Defense of Marriage Act. The court ruled, in a 5-4 decision authored by Kennedy, that DOMA violates the Fifth Amendment's promise of "equal protection under the law." There also appears to be a defense of states' rights to define marriage recurring throughout the opinion. Kennedy says, "DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty." In other words, the law is designed with the purpose of giving a certain group of people superior legal tratment. It is unconstitutional.

The upshot? Edith Windsor, the plaintiff in the case, doesn't have to pay the hundreds of thousands of dollars in extra taxes the IRS says she owes. And all federal marriage benefits, from tax law to immigration to hospital-visitation rights for federal employees, are now in effect in the states that have legalized gay marriage. In the states that have banned gay marriage, gay marriage stays...banned.

Scalia read his dissent from the bench in the DOMA case, and it was a fiery one. Per SCOTUSBlog, "The Court's opinion both in explaining its jurisdiction and its decision 'both spring from the same diseased root: an exalted notion of the role of this court in American democratic society.'" Josh Barro of Business Insider has more on Scalia's blistering dissent here.

A throwaway line in Justice Roberts' DOMA dissent hints that the court will decline to rule on Prop 8 because the petitioners lack standing. More on that shortly.

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Update, 10:37 a.m.

As they hinted at in the DOMA dissent, the court has decided that it cannot rule on Proposition 8 due to the petitioners' lack of standing.

What does this mean exactly? This high up in the courts, there are no longer plaintiffs and defendants — there are petitioners (the people who bring the case) and respondents (the people who are being sued). Petitioners, in other words, are the people who lost the last round and have appealed the case to the next level. Respondents won the last round.

The court has ruled that the petitioners in Prop 8, a gaggle of Republican lawyers, did not have standing to challenge Prop 8 because they could not demonstrate they were tangibly harmed by the law. If the State of California had decided to defend Prop 8, the situation would have been very different, because a state defending its own duly passed law clearly has standing. But since neither the state or federal government was willing to defend Prop 8, the task basically fell to a bunch of random dudes who just...don't like gay marriage that much.

Prop 8 has never been upheld by any court. By throwing the case out based on lack of standing, the Supreme Court has basically decided that if California won't defend its own law, no one can. This means that the decision of the previous court to take the case — that Prop 8 is unconstitutional — stands as the final verdict. Gay marriage will be legal in California.

What about the dissenters in the Prop 8 case? The court decided the case 5-4, with Roberts, Scalia, Breyer, Kagan, and Ginsberg on the winning side and Sotomayor, Kennedy, Thomas, and Alito losing. Obviously, this is not an ideological breakdown. These four justices dissented, basically, because they felt that the petitioners (i.e. the conservative lawyers defending Prop 8) did have standing to challenge the law. They claim this is the case because of California's ballot-initiative system, which in their words is designed "to establish a lawmaking process that does not depend on state officials." In California, citizens can change the state constitution by simple majority vote. The whole point of this system is that people can make their own laws WITHOUT the intervention of state lawmakers or governors. The dissenters go on to state, "This purpose [ballot initiatives, popular government, etc] is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding."

Unclear whether this logic would still hold in a state that doesn't have a ballot-initiative system. But the dissenters' logic basically is that in a system where every man is a king, anyone has the standing to challenge a law.

I look at the Prop 8 dissent in more detail here.

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Where Can I Get Gay Married? States Where Gay Marriage Is Legal

Prop 8 is dismissed and gay marriage is now legal in California! Again!

So for all you cool cats looking to get hitched who don't live in Cali, here are the twelve other states where you can tie the knot.

1. Massachusetts

2. Connecticut

3. Iowa

4. Vermont

5. New Hampshire

6. New York

7. Maine

8. Washington

9. Delaware

10. Maryland

11. Rhode Island

12. Minnesota

 

via: Wikipedia

(If you read the fine print above, it says that "Same-sex marriage laws in California are complicated." But not anymore!)

Five Indian tribes have also legalized gay marriage: The Coquille Indian Tribe, the Suquamish tribe, the Little Traverse Bay Bands of Odawa Indians, the Pokagon Band of Potawatomi Indians, and the Iipay Nation of Santa Ysabel.

Gay marriage is also legal in the District of Columbia. But I'm not really sure what to consider D.C. Is it just a city or district or a territory too. Or a holding? And why don't their votes count again? Whatever, that's another story altogether. 

So go on and put a ring on it. 

@chechkalu 

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What is the Hobbs Act?

Picture Credit: Free Beacon

The Hobbs Act is a federal law enacted in 1964 that prohibits robbery or extortion. The act was enacted to combat racketeering in labor-management disputes, and is frequently used in connection with cases involving public corruption, commercial disputes, and corruption directed at members of labor unions.

At issue in Sekhar v. United States, was whether the Hobbs Act could apply to the advice of an attorney, who is a salaried employee of a government agency. I.e., does that advice amount to intangible property that could be the subject of extortion under the act. According to Kevin Russell on SCOTUSblog:

I know none of you care, but the statute in Sekar was originally designed for prosecuting mobsters engaged in extortion rackets. It prohibits “obtaining property” from a victim through a threat of force. That obviously covers extortion of cash or cars. The question in Sekar was whether it also covered more esoteric things like “legal advice.” (The victim in Sekar was allegedly threatened for recommending to his client, a government agency, that it not do business with the defendant).

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DOMA and Prop 8 Supreme Court LIVE: Will the Supeme Court Make History?

On March 26, the Supreme Court will begin to hear oral arguments in a pair of same-sex marriage cases that could decide the future of marriage equality in America: the Defense of Marriage Act (DOMA) and Proposition 8. 

According to Reuters, the Prop 8 challenge "could give the court a chance to accept or reject a constitutional right to same-sex marriage, or issue a narrower ruling affecting only the nation's most populous state."

Voters passed Proposition 8 in California, during the 2008 election, banning same-sex marriages in the otherwise progressive state. 

The next day, March 27, the Supreme Court will review a New York court ruling that struck down a piece of the DOMA, a federal law that defines marriage between one man and one woman (and denies married same-sex couples the same federal benefits that heterosexual couples enjoy).

In Hollingsworth v. Perry — the California case — the 9th Circuit Court of Appeals ruled, "the state cannot take away a right to same-sex marriage after previously allowing it." The case was represented by Theodore Olson and David Boies, two lawyers who were on opposite sides during the 2000 case Bush v. Gore.

In New York, the 2nd U.S. Circuit Court of Appeals — in a decision by Chief Judge and Republican appointee Dennis Jacobs — struck down Section 3 of the Defense of Marriage Act (DOMA), a 1996 legislation signed by then President Bill Clinton.

The Court made the announcement earlier this month. The SCOTUS ruling could bring closure to millions of Americans for whom LGBT rights has become the civil rights issue of our era. 

The Court battle itself is expected to be divisive. 

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