Tag Archives: ZZ: Windsor v. United States

Ken Klukowski at Breitbart: Several major cases will be decided by the Supreme Court over the next six weeks, including historic issues such as gay marriage and affirmative action. These cases make the remainder of the Court’s term—which ends in June—one of the most carefully watched terms by millions of Americans.

Lyle Denniston at Constitution Daily: If the Constitution takes at least part of its meaning from the way elected officials react to a high-profile public policy issue, the supporters of same-sex marriage have reason to be optimistic right now. In the space of less than a week, Rhode Island and then Delaware became the 10th and 11th states to allow gay marriage (along with Washington, D.C.). But is that a trend that the Supreme Court is ready to advance—or will choose to leave alone to see how it goes?

Erwin Chemersinsky at ABA Journal: No decisions are more eagerly awaited from the U.S. Supreme Court than those in the marriage equality cases. Hollingsworth v. Perry and United States v. Windsor were argued on March 26 and 27, and most expect that the decisions will be announced at the end of June. Having just re-read the transcripts of the arguments, a few things seem clear.

Marvin Olasky at Townhall: Today’s justices have a chance to do not only what’s right but what’s logical: If the Supreme Court affirms states rights on marriage, why not on abortion?

William Baude at Slate: In the wake of the Supreme Court arguments about same-sex marriage, there has been widespread agreement that the justices aren’t likely to create a right to gay marriage throughout the land—thereby invalidating the ban in 41 states that don’t perform it. And there has also been lots of confusion about what, practically speaking, a ruling that stopped short of legalizing gay marriage in 50 states would mean. If the Supreme Court leaves the laws of most states intact, but strikes down the part of the Defense of Marriage Act that defines marriage as the union of a man and a woman, will it create “legal chaos” as the federal government tries to figure out which marriages to recognize where? Or is it relatively obvious which couples will receive federal benefits?

Ed Whelan at NRO: Nearly everyone seems to assume that, if she gets past the standing/jurisdiction issues to reach the merits, Justice Elena Kagan will vote to strike down the federal Defense of Marriage Act and California’s Proposition 8. Somehow clinging to a naïve faith in the power of reason, I continue to hold out a tiny (okay—a very, very tiny) hope that she, and all of the other justices, will instead recognize that DOMA and Prop 8 are constitutionally permissible—that it is legitimate for the federal government in its realm and for the state governments in their realms to maintain the perennial definition of marriage as a male-female union.

Kellie Fiedorek at Washington Examiner: In their recently filed brief before the U.S. Supreme Court, advocates for redefining marriage argued that “gay men and lesbians are a suspect class” and thus need special judicial protection of the “politically powerless.”

ChrisAdamo.com: So perhaps the Supreme Court in its arrogance believes it can forcibly impose a redefinition of marriage on America. Let it next endeavor to strike down the law of gravity as “unconstitutional” on the basis that it clearly affects citizens in a decidedly disproportionate manner and thus is a primary source of “inequality” among the people. Then every concurring jurist, bureaucrat, and countercultural activist who regards the court’s decision as credible will be free to find a high precipice from which to test its merits. We will then see benefit that can actually be reaped from blind faith in liberal arrogance.

NY Times Editorial: This may seem like ancient history. But there is a danger now that overblown fears of a backlash based on a false reading of politics before and after Roe v. Wade could lead the Supreme Court to shy from doing as it should — enforcing equal protection by declaring same-sex marriage a constitutionally protected right in every state.

Kellie Fiedorek at Alliance Defending Freedom: As I walked out of the Supreme Court last Tuesday, I had the words of Justice Anthony Kennedy and Justice Samuel Alito in my ears.

Albert Mohler at LifeSiteNews: The Court’s oral arguments on the DOMA case made the risks of moral argument clear. Justice Elena Kagan, pressing Attorney Paul Clement, the lawyer defending DOMA, asked him if Congress had made a moral judgment in adopting the Defense of Marriage Act. She then read from a House of Representatives report, issued in advance of the vote on DOMA, in which a clear moral argument was made. That report included these sentences: “Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, [and] moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

CBS: “It will be sued everywhere in the country if it’s declared to be a constitutional right,” said Krauthammer. “Because it would imply that anybody who opposes it does it only out of bigotry, for no other reason.”

Mercury News: As the U.S. Supreme Court last week weighed its many options in deciding the historic legal battle over gay marriage, the justices repeatedly revealed they are as divided as the rest of the country on when — and whether — to end the furor and give gay and lesbian couples the right to clutch a marriage license.

Politico: Conservatives watching this week’s gay marriage arguments at the Supreme Court are wondering if it will happen again: Unelected justices ignoring the will of legislatures and high-handedly imposing their own wishes on one of society’s most divisive moral issues. In political circles in Washington and elsewhere, a good number of these conservatives will also make a surprising confession: They are strongly rooting for that outcome exactly.

Erwin Chemerinsky at SCOTUS Blog: But still it is impossible to not think about what might happen in Hollingsworth v. Perry and United States v. Windsor.   There are two questions:  First, will the Court dismiss one or both cases without reaching the issue of whether gays and lesbians have a constitutional right to marriage equality?   Second, if the Court reaches the merits what might it do?

Marty Lederman at SCOTUS Blog: Tom is right, however, that Tuesday’s oral argument raised the possibility of at least two additional outcomes: that the Court might dismiss the petition as improvidently granted – a “DIG”; or that the Court could vacate the court of appeals’ decision and remand the case for reconsideration in light of whatever the Court does in Windsor, the DOMA case. So which of these seven outcomes is most likely?

NPR audio: It was a busy week in the debate over gay marriage, with two Supreme Court cases and a number of members of Congress moving from opposition to endorsement. NPR’s Nina Totenberg and NPR political editor Ron Elving join host Scott Simon for a recap.

KTAR: Ken Connelly, a lawyer for the Alliance Defending Freedom, which defends the traditional definition of marriage, said he hopes the court will “let the debate continue where it should – at the people.”

Cronkite News: Ken Connelly, a lawyer for the Alliance Defending Freedom, which defends the traditional definition of marriage, said he hopes the court will “let the debate continue where it should – at the people.”

ABC 15: In Hollingsworth, California’s governor and attorney general abdicated their duties by refusing to defend their state constitution. So pursuant to California law, the sponsors of Prop 8 — officially registered with the state — stepped in to defend the law, represented by Charles Cooper at Cooper Kirk and the Alliance Defending Freedom.

Matthew J. Franck at NRO: Of course, there are no good arguments for striking down section 3 of DOMA, either on equality or federalism grounds, and any ruling against it will produce needless mischief that the Act is designed, quite constitutionally, to prevent. But the Obama administration appears to want a particular kind of mischief, and so prefers the equality argument. Unlike Ms. Windsor’s counsel, it has no client in the case. It has only an ideological project of foisting same-sex marriage on the whole country, by hook or by crook.

Ed Whelan at NRO: So at least one of the six signatories to the amicus brief arguing that DOMA violates principles of federalism believes that if DOMA is invalidated on federalism grounds, the federal government (absent additional legislation) wouldn’t be deferring to the definition of marriage of the state in which a couple resides. Rather, under Somin’s view, if a same-sex couple lawfully marries in one state (whether or not it’s their state of residence) and lives or moves to a state that doesn’t recognize same-sex marriage, the federal government would provide federal marriage benefits to the same-sex couple in that state.

NPR’s On Point audio and description here.

Newsbusters: Yet, let’s do a flashback to 2009. Kagan was nominated to be the United States Solicitor General — the officer of the executive branch who represents the United States in controversies and cases which go before the U.S. Supreme Court — and was specifically asked about DOMA and same sex marriage (emphasis mine):

Mark Steyn at NRO: Three weeks ago, I wrote: An institution that predates the United States by several millennia will be defined for a third of a billion people by whichever way Anthony Kennedy feels like swingin’ that morning. The universal deference to judicial supremacism is bizarre and unbecoming to a free people.

Erick Erickson at Red State: The kids these days on the right are full of a great libertarian notion that “hey, let’s just get the government out of marriage.” “Rock on,” say other libertarians.They then all smugly self-congratulate themselves, pat themselves on the back, and move on to other issues.What they ignore is that the left will never take marriage out of the hands of the government. The left cannot. But it goes beyond that . . .

World Net Daily: Ken Connelly, a lawyer with the Alliance Defense Fund told WND in an interview that he “would not characterize it that way,” but yet said, “There is an inherent contradiction” today because the executive branch is refusing to enforce and defend the law of the land. He said that is “incorrect” from a legal standpoint . . . The Supreme Court has made clear that defining marriage as the union of one man and one woman is constitutional as a matter of public policy. Thus, Congress and President Clinton acted constitutionally when DOMA was enacted. The wisest course is for the Supreme Court to resist demands to prematurely end the national debate over the future of marriage. The court should respect the freedom of both Congress and citizens to affirm a bedrock social institution that diverse cultures and faiths have honored throughout the history of Western Civilization,” said Austin Nimocks, senior counsel for the ADF. [more]

John Bursch at SCOTUS Blog: Parsing Supreme Court oral argument transcripts to predict outcomes is a bit like using tea leaves to predict the future; neither method is very reliable. But at the risk of being left out of the prediction derby entirely, we can consider potential outcomes on a probability spectrum.

Breitbart: This would be an easy case with clear adherence to two constitutional principles. Prop 8 and DOMA would both be upheld. Now we’ll find out how those two principles fare before the nine justices currently on the Supreme Court. Part I is about Hollingsworth, and Part II is about Windsor.
This is Part II, the Windsor case:

C-FAM: In the current case before the Court on Proposition 8, which will decide whether the people of California were within their rights to place man-woman marriage in the California Constitution, claims of evolving international standards are being made.

Volokh Conspiracy: In his most recent post, my co-blogger Randy Barnett writes that “defining marriage — like defining property — is a traditional function of the states.” He continues: [T]hat is crazy. It would be like saying you “own” your home under the property law of California, but you don’t “own” your home “for purposes of federal law.” Such a dual property system would undermine the institution of property, and the traditional power of States to define property, every bit as much as allowing a dual system of state and federal marriage undermines the institution of marriage, and the traditional power of states to regulate marriage.

How Appealing has compiled a lengthy list of coverage on this week’s arguments here.

Byron Babione of the Alliance Defending Freedom & Ron Prentice of Protect Marriage on the Janet Mefferd Show. | Broadcast featuring Byron Babione: MP3 audio 19:18 mins | The Broadcast featuring Ron Prentice is here.

John Eastman at Christian Post: The arguments reflect a serious misunderstanding of federalism, as a simple analogy will demonstrate. Property law, too, is a core function of state governments. But every year, millions of Americans deduct from their income taxes mortgage interest paid on their primary residence. Suppose Massachusetts were to redefine “residence” to include “automobile.” Under the faux federalism argument being urged to the Court, any Massachusetts citizen would thereby be able to deduct from their federal income taxes the interest on their automobile loan, and the federal government would have no power to define “residence” for federal purposes as it had always been understood, lest it intrude on that core state power. Such a conclusion is absurd.
Read more at http://www.christianpost.com/news/the-faux-federalism-argument-against-doma-92852/#1mgMGp1X6VD7LyKp.99

Noah Feldman at Bloomberg: To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.

Gerard Bradley at SCOTUS Blog: The Justices should be wary of the “science” route. Consider just the leading decisions mentioned during the arguments as instructive parallels to the instant cases. Consider, for example, Plessy v. Ferguson. Justice Sotomayor said that the Court let segregation “perk” for fifty years, until the Justices finally pulled the plug in 1954. But the Plessy Court did not wait upon social scientific evidence of the negative effects of segregation, as Sotomayor implied that it did. That Court was instead party to – at best – a sordid compromise with entrenched racist elements in American society.

Advocates of same-sex marriages can’t back up claims about positive long-term effects.

Wall Street Opinion Journal: Editorial board member Joe Rago on the Supreme Court oral testimony on California’s Prop. 8 and the Defense of Marriage Act. Photo credit: Associated Press.

Michael Foust at Baptist Press: Following are commonly asked questions about the Supreme Court’s two days of arguments in the gay marriage cases.

Matthew J. Franck at NRO: The transcript of today’s oral argument in United States v. Windsor, the Defense of Marriage Act case, ranges widely across both jurisdictional issues and the merits of DOMA’s constitutionality. I think the jurisdictional issues are much harder to sort out than the merits are. And it seems clear from the amount of time devoted to these issues, and the character of the justices’ questions and their answers to the responses, that they regard them as tougher than in yesterday’s Perry case on Prop 8

CBN (includes video): Crews, who heads the Chaplain Alliance for Religious Liberty, said DOMA limited the impact when the ‘don’t ask, don’t tell’ policy was lifted and gays were allowed to serve openly in the armed forces.

CNSNews: During oral arguments on Wednesday at the U.S. Supreme Court on a case testing the constitutionality of the Defense of Marriage Act, Justice Samuel Alito suggested that Congress could have used a more “neutral” term than marriage in the law the defines marriage as a union of one man and one woman for federal purposes.

Tom Goldstein at SCOTUS Blog: Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases. The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation. The challenge to Proposition 8 is a direct challenge to just such a decision by a state.

Ed Whelan at NRO: The fact that DOMA defines marriage and spouse for purposes of provisions of federal law does not mean that it regulates marriage and intrudes on state authority over marriage. For anyone confused on this point, consider this . . .

LifeSiteNews: Thousands of Americans from all religions, races, and political parties gathered around the nation as the Supreme Court heard the first of two cases concerning the definition of marriage, with two boisterous and sometimes clashing crowds meeting outside the Supreme Court. (see Media Reseach video report here)

PBS (video and transcript): We return to today’s same-sex marriage debate with one of our own, featuring two attorneys who were at the court today, California Attorney General Kamala Harris, who supports overturning the gay marriage ban, and Austin Nimocks, counsel for the Alliance Defending Freedom, which supports Proposition 8.

Available here.

Ed Whelan at NRO: Justice Kennedy’s questions and comments are not encouraging, as they reflect a fundamental confusion that DOMA involves the exercise of an authority to regulate marriage. See, e.g., p. 76: “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.” 2. Some excellent questioning by the Chief Justice ought to dispel Kennedy’s confusion. . . .

Ed Whelan at NRO offers this description of today’s arguments and what to watch for.

NY Times: A majority of the justices on Wednesday questioned the constitutionality of the Defense of Marriage Act of 1996, as the Supreme Court took up the volatile issue of same-sex marriage for a second day.

Nick Rosenkranz at the Volokh Conspiracy: He begins by conceding: “In most every conceivable case, there is no objection to any particular definition adopted by Congress for purposes of federal law. Most definitions can easily be shown to be both necessary and proper to an enumerated power.” This is absolutely correct. But if that’s so, I asked: “what is it that makes DOMA different? The fact that it applies to 1100 statutes…?” And Randy answers: “Yes exactly. It was indiscriminately adopted to apply to all statutes regardless of whether the definition was a necessary or proper means of executing any one of them….”

MSNBC (includes video): The co-counsel for the legal team defending California’s Proposition 8 before the Supreme Court Tuesday, Austin Nimocks, called for the court to “let the American people deal with [the issue of gay marriage] through their democratic institutions.” [more]

One News Now: Alliance Defending Freedom attorney Jim Campbell explains why the case is important to those who hold a traditional view on marriage. “If the Defense of Marriage Act is overturned, it will send the message that the government can no longer affirm marriage as the union of a man and a woman,” he laments. “It will essentially say that even though throughout history diverse cultures and faiths have upheld marriage as the ideal, as the union of a man and a woman, it will say that here in America we can no longer do that.”

Ken Klukowski at Breitbart: Prop 8 is being defended by Charles Cooper and the Alliance Defending Freedom. On the merits, Cooper began that, “people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples. The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all fifty states.”

Christian Post: Speaking to Candy Crowley on CNN’s “State of the Union” on Sunday, Austin Nimocks, vice president of the Alliance Defending Freedom and co-counsel for Proposition 8 supporters, believes the court shouldn’t “impose a redefinition of marriage upon all Americans,” and added that same-sex marriage is not a fundamental right. “Fundamental rights are those that are deeply rooted in our nation’s history and traditions,” Nimocks said. “Same-sex marriage is not deeply rooted in our nation’s history and traditions.”

KCENTV.com (includes video): “Our most fundamental right in this country is the right to vote and the right to participate in the political process,” said Austin Nimocks of the Alliance Defending Freedom, a Christian advocacy group. “We don’t need the Supreme Court to take that right away from Americans of good faith on both sides of this issue and impose its judicial solution,” Nimocks said. “We need to leave this debate to the democratic process, which is working.”

WTKR.com: The Human Rights Campaign Facebook page asked people to wear red and to make their Facebook profiles red to show support for marriage equality . . . “Our most fundamental right in this country is the right to vote and the right to participate in the political process,” said Austin Nimocks of the Alliance Defending Freedom, a Christian advocacy group.
“We don’t need the Supreme Court to take that right away from Americans of good faith on both sides of this issue and impose its judicial solution,” Nimocks said. “We need to leave this debate to the democratic process, which is working.”

Alan Sears at Alliance Defending Freedom: This week, and for the next several weeks, I’d like to ask you and your family to be in particular, faithful, fervent prayer for the future of your nation and for the justices of the U.S. Supreme Court as they rule on two major cases related to the legal definition of marriage in America.

Hadley Arkes at NRO: From the back and forth this morning, it appears that the issue of the Supreme Court’s “standing” is not likely to be decisive. Even Justice Kennedy seemed to be concerned to answer that question — and put it out of the way . . . Coming out of the courtroom today, the defenders of marriage were decorously upbeat: One savvy observer thought that the odds on Kennedy tilted to the conservative side were about 70 percent.

MSNBC: “Justices aware of shift in national attitudes on same-sex marriage”
Austin Nimocks of the Alliance Defending Freedom talks about Tuesday’s arguments on Proposition 8 and describes the mood inside the court hearing.

Orin Kerr at Volokh Conspiracy: At the oral argument today in Hollingsworth v. Perry, Justice Scalia repeatedly questioned Ted Olson on when same-sex marriage became unconstitutional. From the transcript . . .

CNN (includes video): “Our most fundamental right in this country is the right to vote and the right to participate in the political process,” said Austin Nimocks of the Alliance Defending Freedom, a Christian advocacy group. “We don’t need the Supreme Court to take that right away from Americans of good faith on both sides of this issue and impose its judicial solution,” Nimocks said. “We need to leave this debate to the democratic process, which is working.”

WPTV (includes video): “Our most fundamental right in this country is the right to vote and the right to participate in the political process,” said Austin Nimocks of the Alliance Defending Freedom, a Christian advocacy group.
“We don’t need the Supreme Court to take that right away from Americans of good faith on both sides of this issue and impose its judicial solution,” Nimocks said. “We need to leave this debate to the democratic process, which is working.”

Mainline Media News (text of the chat at the link): Join a moderated discussion at 3 p.m. ET on Monday, March 25, about Proposition 8 and the Defense of Marriage Act being considered by the U.S. Supreme Court. Joining Bay Area News Group legal affairs writer Howard Mintz will be Byron Babione, senior counsel for the Alliance Defending Freedom, which is helping defend Proposition 8 and supports the federal Defense of Marriage Act; and Christopher Stoll, a staff attorney with the National Center for Lesbian Rights.

OzarksFirst.com: “The big question going before the Supreme Court is whether or not the Supreme Court should impose a 50-state solution upon this entire country regarding the debate surrounding marriage,” says Austin Nimocks, with the Alliance Defending Freedom.

The Hill: A divided Supreme Court debated Tuesday whether the Constitution includes a right to same-sex marriage — and how broadly such a right would extend.

AP: South Dakota Sen. Tim Johnson was expected to announce his retirement Tuesday, making the state the fifth where Democrats will have to defend a seat without an incumbent seeking re-election.

Austin R. Nimocks at Wall Street Journal (via Google): The Supreme Court is not the place to settle the country’s public-policy disputes. The court is not equipped to distill all of the competing concerns and interests over marriage into a comprehensive, nationwide policy.

Ken Klukowski at Breitbart: This would be an easy case with clear adherence to two constitutional principles. Prop 8 and DOMA would both be upheld. Now we’ll find out how those two principles fare before the nine justices currently on the Supreme Court. Part I is about Hollingsworth, and Part II is about Windsor.

Washington Post: Now, it seems not only possible but also likely that same-sex marriage will be legal, widespread and, frankly, mundane and that this will happen relatively soon. The Supreme Court must play a part in this civil rights triumph — and justices should not shrink from it.

NY Times Editorial: The court should avoid that kind of error in the same-sex-marriage cases. It should broadly declare that under the Constitution the right to marry applies equally to all couples, period, and that this principle applies to the federal government and every state.

Daily Mail: In short, the Supreme Court ought to allow the public – as a society – to decide the future of marriage. Why? Because marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces.

More information here.

SCOTUS Blog: Below are answers to questions about how the cases will unfold over the next three months . . . As with health care last year, the ruling almost certainly will come at the end of the court’s term. The last week of June looks to be historic one way or another.