SCOTUS Hearings on DOMA & the Windsor Case

Wedding Rings White 234x145Today SCOTUS heard arguments on U.S. v. Windsor. In my post yesterday on Proposition 8, I quoted John Eastman’s sorting of the legal issues of both cases. Here are some of his specifics on Windsor:

The plaintiff in Windsor, Edith Windsor, contends that Section 3 deprived her of the estate-tax spousal deduction because she and her lesbian partner, though legally married in Canada and then domiciled in New York, were not recognized as married for purposes of federal law. The U.S. District Court for the Southern District of New York held that Section 3 of DOMA [Defense of Marriage Act] violated the Equal Protection component of the Fifth Amendment’s Due Process Clause. Even before the case was heard by the Court of Appeals for the Second Circuit, requests for Supreme Court review were filed, but the Second Circuit considered the appeal quickly, rushing out a decision affirming the district court’s judgment that Section 3 of DOMA was unconstitutional.

The Second Circuit applied “heightened scrutiny,” a legal doctrine normally reserved for invidious classifications such as those based on race, nationality, and gender. This was a first among the federal appellate courts, and the judges on the Second Circuit panel that rendered the decision were split two to one. Although Windsor and the other DOMA cases currently pending before the Supreme Court all challenge Section 3, the Court’s ruling will likely implicate the constitutionality of Section 2 as well….

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The Heritage pamphlet, What You Need To Know About Marriage: Questions and Answers Driving the Debate, states:

Q. Shouldn’t same-sex partners get benefits like others?

A. We can address specific concerns through specific policies without redefining marriage. For example, the central issue in the upcoming Supreme Court case on the Defense of Marriage Act is the estate tax—the tax you may pay when a friend or family member leaves you assets from their estate. This dispute could have been avoided years ago when Congress had the chance to enact fairer tax policy by eliminating the estate tax and allowing Americans to pass on their wealth, estate-tax free, to their loved ones.

We should resolve specific problems through specific policies. We should have sound tax policy as well as sound marriage policy, and that means recognizing marriage as the union of one man and one woman.

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Matthew Franck summarized today’s hearing at Bench Memos:

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. Much of the trouble is caused by the Obama administration’s decision to adopt the untenable position that it would argue in court that Section 3 of DOMA (governing the meaning of marriage in federal law) is unconstitutional, yet continue to enforce it anyway….

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In Justice Scalia: So the Government Can Just Stop Enforcing the Law? Nathaniel Botwinick posted this comment from the justice:

It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel, which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged constitutionality has to do with presidential powers….The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I’m wondering if we’re living in this new world where the Attorney General can simply decide, “Yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.” If we’re in this new world, I don’t want these cases like this to come before this Court all the time. And I think they will come all the time if that’s the new regime in the Justice Department that we’re dealing with.

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On the merits Frank wrote:

Assuming the Court reaches the merits of DOMA, the questions actually become much easier. To the observations Ed has made, I would add that Chief Justice Roberts distinguished himself in his questioning on the merits today.

Roberts twice asked counsel whether one must see “animus” in the votes of the 84 senators (and, implicitly, also the many more House members) who voted for DOMA.  Both SG Verrilli and Windsor’s counsel Roberta Kaplan went on the record saying that “animus” was not or need not have been the driving force behind the passage of DOMA. They tried a softer line, that attitudes toward gay couples suffered from an “incorrect understanding” in 1996. But real animus–meaning something “irrational”–would seem to be necessarily present in order for the Court to find DOMA unconstitutional under the rational basis test.  So this was a significant concession.

Then the chief justice pursued a line of questioning with Windsor’s counsel that probed whether some form of “heightened scrutiny” is merited for the analysis of whether homosexual couples were treated wrongly under the equal protection clause. He wanted to know if all the movement in favor of same-sex marriage in recent years–and even in recent weeks–hasn’t been precisely because gays and lesbians and their allies are extremely powerful politically. Political powerlessness is a key component in a judgment that some test more stringent than rational basis will be used.  If, as Kaplan argued, there has been a “sea change in people’s understandings,” Roberts said, it’s hard to see where that came from, “if not from the political effectiveness of–of groups on your side of the case” (pp. 108-09).

Lots of political power = no need for heightened scrutiny.  Absence of irrational animus = no problem under the rational basis test. As I said, on the merits this one is easy. Which is, of course, never to say that there aren’t five justices who could get this badly wrong!

The rulings on these cases probably won’t be handed down until June. Although law, logic and history all uphold and defend conjugal marriage, this is also a spiritual battle, and the desires and the intents of man blind him to God’s truth and cause him to defy God and the witness God gives to him in the way marriage benefits individuals and society. Which is, of course, why we should continue to pray for God’s help and mercy as the justices deliberate these cases amongst themselves.

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Ryan Anderson Debates Marriage On “Piers Morgan Live”

Piers Morgan can’t win on the merits and facts so he works on the set-up. Not only did he bring Suze Orman in to help him along, but he also had Ryan Anderson sitting below them so they could literally “talk down” to Anderson.

Ryan Anderson, however, is a co-author of What Is Marriage? Man and Woman: A Defense, as well as a fellow with The Heritage Foundation, and he’s been writing and speaking constantly over the last few weeks in defense of marriage. He’s accustomed to being in the line of fire.

Start the video and then an arrow in the top left corner will appear with an option to click for closed caption. The Heritage Foundation has coverage and quotes in the column found at my first link.

If you have trouble viewing the video here, it’s also posted at The Heritage Foundation.

Below the jump is video of Ryan Anderson recapping yesterday’s hearing at SCOTUS.
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Another Takedown of the Marriage & the Right Side of History Meme

HistoryAfter posting Marriage & the Right Side of History yesterday, I was amused to see this headline today in a column by George Neumayr:

On the Smug Side of History

A country that stakes its future on lies will not have one. The fashion- able lie of the moment is “gay marriage.” The push to deprive children of mothers and fathers for the sake of “genderless” marriage has never been stronger. The media propaganda about its “inevitability” is unremitting. One would think, judging by all the triumphant rhetoric heard this week, that over 30 states had approved it. In fact, over 30 states have banned it [“All told, the people of 41 states have affirmed the conjugal view of marriage by direct voting or through their representatives.”]….

Notice that the “inevitability” argument for gay marriage is coming from Beltway elites who want judges to decide the issue. Why are they waiting at the back doors of court houses so anxiously if public support for it is so strong? Why do they try and shut down debate so quickly by branding their opponents the moral equivalent of racists if their case is so manifestly clear?

He reports this exchange from yesterday’s hearing (emphasis added):

…Justice Scalia asked Ted Olson, the lawyer who seeks to overturn Proposition 8, when gay marriage crept into the Constitution as a right: “We don’t prescribe law for the future. We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”

Olson couldn’t give a date, to which Scalia replied: “Well, how am I supposed to know how to decide a case, then, if you can’t give me a date when the Constitution changes?”

This exchange highlights what a sham these cases are, and explains why gay-marriage activists don’t want a prolonged debate but a Roe-style judicial coup.

A lie, even if judicially decreed, remains a lie and provides no future for a country forced to swallow it. Plenty of regimes that no longer exist once thought themselves on the “right side of history.” The Romans, at the height of their decadence, saw the Roman empire as indestructible. It ended in ruins. Reality takes revenge on the deluded.

As I said yesterday, progressives have never heeded the reality lessons taught by the events of history or they would give up their statist utopian vision once and for all as untenable. Unfortunately, they keep working to force their delusions on the rest of us.
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Image from The Federalist Papers on Facebook.

Redefining Marriage: SCOTUS As Theatre of the Absurd

….and their foolish heart was darkened.

Supreme CourtIn early March, Mark Steyn wrote:

What’s weird about all this is that, around the world, supposedly free peoples are happy to accord the bench (even a bench whose arguments are as incoherent as the Ottawa guys’) a monopoly power on all the great questions of the age. Even as every other societal institution in the West — church, monarchy — has lost authority, blokes in black robes have accrued more and more. South of the border, Paul Mirengoff has a post today on what he calls “the Supreme Court’s empire” — i.e., the notion that five judges have the power to redefine marriage. Which, in effect, means 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.

Today Steyn quotes from another post by Mirengoff:

The fact that the Supreme Court may be about to pass judgment on the age-old definition of marriage is the reductio ad absurdum of American constitutional jurisprudence. That we have reached this point tells us that the Supreme Court has taken some terribly wrong turns.

Not just SCOTUS, but many, many others. “Until yesterday, no society had seen marriage as anything other than a conjugal partnership: a male-female union.” To think that we can declare that the construct of what marriage is, is not, is to think that by waving our hands we can make of reality anything we please. It’s a measure of the extent of man’s foolishness and pride, and it’s a measure of the depth of the darkness of man’s heart. It is truly the theatre of the absurd.

Among them we too all formerly lived in the lusts of our flesh, indulging the desires of the flesh and of the mind, and were by nature children of wrath, even as the rest. But God, being rich in mercy, because of His great love with which He loved us, even when we were dead in our transgressions, made us alive together with Christ (by grace you have been saved), and raised us up with Him, and seated us with Him in the heavenly places in Christ Jesus, so that in the ages to come He might show the surpassing riches of His grace in kindness toward us in Christ Jesus.
Ephesians 2:3–7

Each of us has performed in that theatre, but none of us has to stay for its final curtain.