Kerry: Making DOMA history

[ProSense]

Making DOMA history

by John Kerry
United States Senator
Wednesday Jul 14, 2010

In 1996, I voted against DOMA because I believed -- and still believe -- that it was unconstitutional and unconscionable for Congress to actively legislate against gay Americans. I stood on the floor of the Senate to implore my colleagues to reject this bill. From the Senate floor, I argued that this legislation was wrong, "because not only is it meant to divide Americans, but it is fundamentally unconstitutional, regardless of your views. DOMA is unconstitutional. There is no single member of the U.S. Senate who believes that it is within the Senate’s power to strip away the word or spirit of a constitutional clause by simple statute."

I thought back on this last week when a United States District Court declared DOMA’s restrictions unconstitutional. Judge Tauro ruled that the Defense of Marriage Act violates Fifth Amendment protections because " irrational prejudice plainly never constitutes a legitimate government interest."

We’re not just talking about a violation of the Constitution -- DOMA violates our very core principles of civil rights and equal justice under the law.

There are 1,138 provisions in law that use marriage to determine rights and federal benefits. These include Social Security, joint parenting and adoption rights, Medicaid, tax benefits, inheritance rights, next-of-kin rights in emergency situations and with medical decisions, immigration rights, survivor benefits, and many more. These thousand injustices have taken an immeasurable toll on loving, committed couples who are routinely forbidden from making hospital visits, or adopting children, or receiving survivor benefits.

And as I’ve seen firsthand, these spouses can even be kept from living together in the same country. For the last two years I have been working with Tim Coco and Junior Oliveira, a married couple from Haverhill, Massachusetts. They married in Massachusetts, but Junior is a Brazilian citizen whose legitimate asylum claim was denied in immigration court based on an erroneous and discriminatory ruling. He was forced to return to Brazil, which has the highest hate crime rate against homosexuals in the world. For three years this legally married couple lived half a hemisphere apart because DOMA kept their marriage from being recognized in immigration matters. Their marriage was even used against them. Junior was denied a travel visa to visit his husband because the government argued he didn’t have a compelling interest to return to Brazil and leave Tim. Just last month they were finally reunited through a Humanitarian Parole Visa for Junior based on the persecution he suffered. But this is only a temporary solution -- and countless other couples have not been so lucky.

The good news: if the Court’s ruling stands, we can finally help Tim and Junior receive a family based visa that they should have been eligible for years ago.

It is widely believed that this ruling will be appealed and that it could make it all the way to the Supreme Court. For the sake of all those who have suffered under DOMA, I hope the Court upholds the decision. Congress made a horrible mistake passing DOMA in 1996, and we’ve lived with the destruction and pain it has caused for the last 14 years. Now it’s time -- long past time -- to make DOMA history once and for all.

[zipplewrath]

1. Should we take a survey first?

Maybe we need to establish a commission on how to encorporate and DOMA free law on society. Maybe we should send out a survey and find out how it would affect people if we repealed DOMA.

[Smashcut]

2. "if the Court's ruling stands..."

i.e., if the Fierce Advocate's DOJ doesn't appeal.

[Unvanguard]

3. That's not what Kerry says. Actually, he expresses his hope that SCOTUS will uphold it.

Which requires the DOJ to appeal.

[TheWraith]

4. Shhh... you're pouring facts on the Obama bashing party.

How are DUers supposed to have any fun burning "less pure" Democrats at the stake if people keep bringing around their annoying facts?

[polmaven]

7. Does that mean you

agree that the decision should apply only to Massachusetts residents? :shrug:

[ruggerson]

11. there are a number of legal scholarsl who think the Prop 8 lawsuit

is a much better vehicle. Hopefully Walker will not only decide in our favor but grant gays and lesbians suspect classification.

The judge in the Mass vs HHS case issued a ruling which many think will not hold up on appeal.

[Smashcut]

13. Exactly

The Tenth Amendment is rarely upheld as a basis to invalidate a federal statute, and the Prop 8 lawsuit does a much better job of relying on substantive due process and equal protection.

:thumbsup:

[Unvanguard]

17. Could you point to those legal scholars?

Every analysis I've seen indicates that Gill has a much stronger chance of being upheld on appeal than a positive ruling in the Prop. 8 lawsuit. The federal courts are just not ready to constitutionally guarantee same-sex marriage--not when forty-five states prohibit it.

[ruggerson]

21. Sure

Jack Balkin for one - professor at Yale Law:

"... his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power"

http://balkin.blogspot.com/2010/07/be-careful-what-you-wish-for-department.html

Balkin, of course also makes the argument that the country is not ready for a sweeping ruling via an equal protection argument (which Tauro employs using the 5th amendment), so he might also argue against the success of Prop 8.

But others don't, including GLAD's own legal director:

"There is a sense in which this case is very significant, and there is a way in which it is a tiny step," said Gary Buseck, legal director for GLAD. "If the . . . case goes all the way to the United States Supreme Court and we get as broad a ruling as we could possibly get,it will not bring marriage equality to the country."

More significant, he and others say, could be the outcome of the California case. There, U.S. District Judge Vaughn R. Walker is being asked to decide whether voters violated the U.S. Constitution by passing Proposition 8, a referendum measure two years ago that defined marriage as between a man and a woman.

Supporters of gay marriage say the outcome of that case could be as significant from a civil rights perspective as Loving v. Virginia, the case that invalidated that state's ban on interracial marriage. Opponents say a more apt comparison would be to Roe v. Wade, the decision that legalized abortion and inflamed social tensions.

"In the same way, this is a good-faith dispute among people of goodwill who just disagree about the rightness and wrongness of the practice," said Robert George, a constitutional law professor at Princeton University and an opponent of gay marriage. "There's no neutral middle ground. A decision will have to be made."

http://www.washingtonpost.com/wp-dyn/content/article/2010/07/09/AR2010070905499.html

[Unvanguard]

22. Jack Balkin is dubious about Gill, but is even more dubious about Perry.

His concern with Gill is precisely his conviction that the federal courts are not ready to impose same-sex marriage on the states--which, of course, Perry (and not Gill) asks them to do directly. Andrew Koppelman (another Balkinization poster), is substantially more optimistic about Gill, but (at least) equally pessimistic about Perry. He is optimistic about Gill precisely because he does not think that a gay-rights victory there requires invaliding marriage statutes nationwide.

Gary Buseck says, correctly, that a victory in Gill will mean less than a victory in Perry, but this says nothing about their potential for success. To the contrary, the opposite is the case: the stronger the effects of a victory, the less likely we will get one. The federal courts generally move incrementally.

[ruggerson]

23. Perry vs Schwarzenegger has the potential for a much broader decision

as noted by Buseck and many others. I guess it depends on how one defines "successful." Perry has Olsen and Boies and the Ninth Circuit, which is one of the most liberal in the country (the Chief Justice recently ruled against the Obama admin in another DOMA administrative case). The crux of their case is equal protection, and if they are successful in having Walker apply strict scrutiny (something Tauro did not) it's fairly self evident we have a far better shot at a Loving type of decision than in Gill.

[Unvanguard]

24. You're right that winning at the Ninth Circuit is far from impossible.

But if we do, then the Supreme Court will definitely grant certiorari when it is appealed, and the liberalism of the Ninth Circuit becomes irrelevant. Indeed, the Supreme Court recently has an extended pattern of overturning Ninth Circuit decisions it doesn't like.

Gill is also an equal protection challenge; the Tenth Amendment quote you mentioned in your last post was made with respect to the other case Judge Tauro ruled on, the one litigated by Massachusetts. The level of scrutiny the district court judge uses is irrelevant, because the higher courts are not bound to use the same; Judge Walker, in any case, might use rational basis too, if he concludes that Prop. 8 lacks one (and he might well, because it does, and Olson and Boies demonstrated this pretty convincingly.)

You're correct that we have a better shot at a "Loving type of decision" in Perry, in that a Perry victory would essentially resolve this fight in our favor while a Gill victory would just be one (big) step in the right direction, but the problem is that we are almost certainly bound to lose Perry if/when it reaches the Supreme Court. Loving is a good analogue. It's not enough to point out that Loving was decided at a time when a majority of Americans morally disapproved of interracial marriage; the more important truth is that Loving was decided at a time when the only states that still had anti-miscegenation laws were the Southern states, the Southern states the Supreme Court had already committed itself to reforming, and whose laws were outside the national mainstream. Today, forty-five states have same-sex marriage bans, forty of them explicit: the Supreme Court is not going to invalidate all of those even if faced with an abstractly-convincing argument. Unlike Gill, Perry was not brought by the legal organizations committed to gay rights who have won the previous victories; indeed, they opposed the move. And it is hard to find knowledgeable observers, beyond Olson and Boies themselves, who believe it will be successful.

[ruggerson]

28. It's not just that a "majority" of Americans

disapproved of interracial marriage when Loving was decided in 1967. An overwhelming super-majority did. 72 percent to 20 percent according to Gallup, and that was in '68, a year AFTER the decision came down.

The support for same sex marriage equality, OTOH, hovers roughly at 50/50. And if we are to believe some of the very latest surveys, actually enjoys razor thin majorities for the first time, despite individual state statutes put into place over the last 15 years.

If the Mass. cases are overturned, we will have lost the one state where we currently have a decision that gives federal recognition to legally married, same sex couples. If we believe that the 10th amendment argument is inherently a fairly weak one and that the equal protection argument in the second case serves merely to strike down one article of DOMA, it might make more sense from a strategic point of view to let this ruling hold, while Perry works its way up through the system as support for equality grows. As we both know, Perry is the possible homerun. The MA cases are singles, and if they are appealed successfully, as is very likely, they become significant setbacks.

What this boils down to is a fight for Anthony Kennedy's vote, if he is still on the court when the case(s) arrives there. From my perspective, we have a shot at an equal protection ruling, grounded in the 14th amendment, with Perry. He did write the majority opinion in BOTH Romer and Lawrence. And Lawrence invalidated sodomy laws in 13 states - not just the South. Granted, it is an uphill climb. But most of the seminal USSC decisions that institutionalized major social changes have been uphill climbs.

[Unvanguard]

29. It is still an invalid comparison.

Americans morally disapproved of interracial marriage in 1968. Nonetheless, they were mostly willing to leave such marriages alone (or at least didn't care much when their state legislatures did so): the vast majority of states had repealed their anti-miscegenation statutes by the time Loving came along. Thus, Loving v. Virginia was the imposition of a national consensus that had already arrived on a minority of recalcitrant states that were already known for being outliers on the issue of racial discrimination.

On the other hand, support for same-sex marriage ranges somewhere from one-third to two-fifths (I have yet to see a poll indicating majority or even near-half support), popular referendums on the subject, even recent ones in politically-liberal states like California and Maine, have repeatedly failed to uphold equality, and forty-five states--forty-five states, not a minority of dissidents--do not have legal same-sex marriage. And the five states that do--Iowa, New Hampshire, Connecticut, Massachusetts, Vermont, and the non-state District of Columbia--are all fairly small, and with the exception of Iowa are known for being socially-liberal.

The legal situation is not much better. Same-sex marriage litigation has had a mixed record at the state level. The Supreme Court has yet to grant any level of heightened scrutiny to sexual orientation--it entirely avoided considering the issue in Romer v. Evans--and is in the hands of conservatives who are skeptical of civil rights arguments.

Whether or not a DOJ appeal is the best option for us in these cases depends on what the chances are that one or both will be upheld on appeal. I think Gill has a good chance. A narrow argument that DOMA constitutes a pointless denial of legal rights to married same-sex couples, an argument separated from the more contentious issues surrounding same-sex marriage itself, seems reasonably likely to attract Kennedy's vote. Gill allows this kind of incremental shift toward equality; Perry, which effectively is an all-or-nothing case, does not.

Romer v. Evans and Lawrence v. Texas, while certainly very positive signs for Kennedy, both fall far short of legalizing same-sex marriage, and also constitute cases more along the lines of Loving in their effect than a hypothetical Perry victory. As in Loving, most states had repealed their sodomy laws long before Lawrence, and unlike even Loving, in the remaining states the statutes went almost entirely unenforced. Romer v. Evans, in turn, invalidated a single constitutional amendment in a single state, one that, as the majority opinion made much of, was unprecedented in American history. Neither definitely resolved a contentious social issue against the will of a national majority; Romer v. Evans had too local an effect, Lawrence v. Texas came long after the consensus had shifted in support of the repeal of sodomy laws. Lawrence gets criticized much more for its method (substantive due process, some vague "liberty" language from Kennedy) than for its outcome.

[karynnj]

32. Thanks for this detailed analysis

If Gill is upheld, do you think one major impact might be that it could push some of the other more liberal states to move from civil unions to marriage? It would completely eliminate the argument that civil unions give everything but the word "marriage".

In NJ, I doubt this could happen until after 2013 - and then only if we vote in a Democratic governor.

[Unvanguard]

33. I hadn't thought of that, but it's a real possibility.

Congress might change the rules after an invalidation of DOMA, but considering its apparent general desire to not touch anything on this subject, perhaps not. It would indeed steal much of the wind from the arguments in states like NJ and CA that theoretically-equivalent legal partnerships are good enough. I wonder how state courts would treat that fact.

[ruggerson]

34. Your numbers do not reflect the reality of current polling data

http://voices.washingtonpost.com/behind-the-numbers/2010/02/post-abc_poll_views_on_gay_mar.html

http://www.gallup.com/poll/128291/americans-opposition-gay-marriage-eases-slightly.aspx

[Unvanguard]

35. Thanks for those.

The problem with both of them is that they ask about same-sex marriage and not civil unions (or, in the case of the second, ask about civil unions separately.) That's not necessarily an accurate representation of views regarding the choice between domestic partnerships with (nominally) equal legal rights and full marriage equality, which is the issue in Perry v. Schwarzenegger. See, for instance, here--note the CBS News/New York Times poll, which has three options instead of two, and whose highest level of support is 42%.

There's also the problem that, if people actually feel that way, they have failed largely to express it: indeed, a lot of the supporters are probably not very committed, and might be brought around to oppose it, or at least not to support it very affirmatively. Political victories and losses often say a lot more than poll results. We have to start winning consistently in states like California, Maine, New Jersey, and New York before winning nationally on marriage issues is going to be likely. We are close to that point--within five years or so--but we are not there yet. And a winning Supreme Court opinion is not likely until even after that.

Edit: For a good example of the second point, any poll you look at these days will report strong majorities for civil unions, but in Washington, a "blue" socially-liberal state that voted for Obama 58-41, a domestic partnership law that gave equal rights and benefits to same-sex couples passed with merely 53% of the vote. As is true in so many respects, the verbal "support" gay people get only sometimes translates into material results, even when it comes to such seeming trivialities as voting the right way at the voting booth.

[ruggerson]

36. I agree

that what one tells a pollster regarding these issues is not necessarily how one casts an anonymous ballot. Which is why we have a judiciary and why this particular issue will be decided there and not in state legislatures or at the ballot box. Even though part of the court's function is to safeguard minority rights from the whims of the majority, they still do, as you note, pay attention to public attitudes and evolving mores. I guess I"m just a bit more confident than you as to how much of a leap they are willing to make in the next few years.

What happened in Argentina is fascinating. A very Catholic nation, with the forceful leadership of a strong president beat back the Vatican and the rightwing religious forces. It's worth noting that the most Catholic region in the US, the Northeast, has the highest and broadest support for marriage equality and is actually one of the few areas in the country where we have won legislative victories and not just judicial ones.

[Unvanguard]

37. The news from Argentina made my day.

It helps to be reminded sometimes that just because we seem to be stalemated in this country right now, progress continues elsewhere... and hey, we won there today, maybe we'll win here tomorrow. :)

[karynnj]

25. One irony here - this suit was Coakley's and it could be a great civil rights milestone if upheld

Yet many progressives couldn't vote for her - giving us Scott Brown, who has made passing anything tougher.

[Unvanguard]

27. Gill v. OPM was actually brought by GLAD, a New England LGBT rights organization.

Its companion case, Massachusetts v. HHS, was indeed brought by Coakley.

If I lived in MA, I would have voted for her. :hi:

[karynnj]

31. Thanks for the correction - I missed that there were 2 MA cases

:hi:

[karynnj]

8. It sounds like it needs to go to the Supreme Court and be upheld

From cases before, it sounds like the DOJ has to appeal anything that calls a law unconstitutional - so I think you, like Senator Kerry, should hope that this reaches the Supreme Court and the MA judgment is upheld.

Who is "fierce advocate" in your post? Obama?

[Smashcut]

14. Please see ruggerson's post above and my reply

[ruggerson]

15. actually karynnj

when a judge issues a ruling striking down a statute as patently unconstitutional, particularly on summary judgement, it makes it far easier for the DOJ to decide against appeal. One of the excuses the DOJ used during the Smelt debacle was that no federal court had yet declared DOMA (or one of its sections) unconstitutional, so they were duty bound to defend it.

They aren't any longer, per their own standard.

[ProSense]

16. Here is another perspective

Defense of Marriage Act's Achilles heel

A judge's finding that DOMA violates the Constitution's equal protection clause could be accepted by the U.S. Supreme Court.

By Andrew Koppelman

July 14, 2010

<...>

In the case brought by Massachusetts, the court held that DOMA intrudes on "traditional government functions," specifically the state's right to define what marriage is. In the individuals' cases, it held that there is no rational basis for denying federal benefits to same-sex spouses in marriages legally recognized in their states. The first of these arguments is silly, and potentially mischievous. But the second is very strong, and can and should carry the day if, as is likely, the case is appealed all the way to the Supreme Court.

<...>

The case will probably be appealed. But will it be upheld? This Supreme Court is unlikely to conclude that same-sex marriage must be allowed in all states. But you can invalidate DOMA without going that far, by focusing on its unprecedented, blunderbuss character.

On the current Supreme Court, this case would probably depend on the swing vote of Justice Anthony M. Kennedy. (If he is still there when it is heard — appeals take years, and he turns 74 later this month.) In a 1996 decision striking down a Colorado law that repealed all antidiscrimination protection for gay people, he noted that it "has the peculiar property of imposing a broad and undifferentiated disability on a single named group." This kind of imposition "is unprecedented in our jurisprudence," and he declared that it "is not within our constitutional tradition to enact laws of this sort." Similarly, in a 2003 decision invalidating a law banning homosexual sex, he observed that such gay-specific laws were very recent, originating in the 1970s. That same logic might well condemn DOMA, but it would be unlikely to invalidate the marriage laws of individual states.

Even the states' rights argument could be rehabilitated if, on appeal, Massachusetts focuses on the equality argument. The district court ruled in favor of the state for two independent reasons, only one of which relied on inherent state functions. The other, better argument was that a state can't be required to violate the Constitution in order to get federal funds. If DOMA is unconstitutional because of the way it singles out gay people to beat up on, then states can't be denied federal funds when they refuse to administer it. For example, if DOMA's requirement that same-sex couples be excluded from veterans cemeteries is unconstitutional, then Massachusetts can't lose its federal funding when it buries a same-sex couple in a state-administered veterans cemetery.

more

[karynnj]

18. If it i not appealed does that mean that for the entire country DOMA is then unconstutional?

Any lawyers here to explain this to those like me who don't understand what it means if it is NOT appealed?

[Unvanguard]

19. Not a lawyer, but the answer to your question is "no."

If it is not appealed, the ruling stands, but it only applies to the jurisdiction of the federal district court in question--namely, Massachusetts.

If it is appealed to the First Circuit and the district court ruling is upheld, but it is not appealed to the Supreme Court or the Supreme Court decides not to hear it, then the ruling stands for Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico.

If it goes all the way to the Supreme Court and the Supreme Court upholds the ruling, then it applies nationwide and Section 3 of DOMA is nullified entirely.

Of course, at each step it is possible that the courts rule against equality and nullify the positive ruling we have now.

[karynnj]

20. Thanks

[HockeyMom]

5. I am very happy to report that

while my gay daugther had surgery in a state a thousand miles away from me, her partner was allowed in the recovery room in a NY hospital to see and stay with her and be able to report back to me what was happening. Nobody in the hospital questioned her right to be with my daughter.

Thank you, NY and Long Island Jewish for recognizing the rights and relationships of gay patients.

[bigwillq]

6. Cool.

Thanks for sharing! :hi::hug:

[ruggerson]

9. Kerry has usually been the model of leadership on LGBT issues

I remember his DOMA speech well.

[damonm]

10. 5th Amendment? WTF?!?

I can see DOMA busting living hell out of the Equal Protections clause of the 14th, but how in HELL does the 5th Amendment even come into play here?

[ruggerson]

12. The judge in the Mass cases

ruled against the federal government citing both the 10th amendment and the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

[donheld]

26. k & R

[vaberella]

30. And it's begun. n/t

[Moochy]

38. Make that History Kerry!11