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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, October 30, 2015

Then Comes Marriage: United States v. Windsor and the Defeat of DOMA

The lead attorney, Roberta Kaplan, provides an account of the case led to the striking down of Section 3 of DOMA and quickly led to same sex marriage being recognized as part of the constitutional right of marriage.  I am about half-way through, but it is a good read and focuses a lot on the personal stories of both the author and the subject of the case, Ms. Windsor. (I reserved the documentary of her story.)  It is a good addition to Supreme Court and GLBTQ literature. Note Kaplan also was involved in the "People's Brief" amicus to the SSM Cases, which I signed.  This book was finished about when those cases were decided, Ms. Windsor's introduction dated May 2015. 

It is geared to the average reader and the passage of the legislation and legal analysis of the opinions involved etc. are not provided in depth. On the latter, from the perspective of the Clinton Administration, Buzzfeed has an excellent account with chunks of links to documents (the author doing great work perusing tons of material). As I noted shortly after it was written, in the face of some criticism even from some supporters, think the opinion itself was pretty good.  I would have liked at time a bit more discussion on the background of DOMA (why not like ten pages or whatever in the appropriate spot in the book instead of a brief summary?) and of the opinions and dissents (less important). One thing it surely should have had was an inclusion of the brief text, perhaps as an appendix:
Section 1. Short title
This Act may be cited as the "Defense of Marriage Act".
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
The title is a slam on various types of marriage (sic).  The second section at the time (mid-1990s) was somewhat benign since this was pre-Lawrence v. Texas and all. But, putting aside the general issue of same sex marriage being protected, one problem here is that "judicial proceeding" has a stricter test in respect to full faith and credit. And, I think singling out one class of people here is not a "general" regulation under that clause and a violation of equal protection. Finally, again, the last section is blatantly unconstitutional both as to the people involved and as an infringement of federalism.  There was a serious Romer v. Evans claim though the law clearly was in flux at the time.

I don't recall my opinions at the time on DOMA particularly though felt same sex marriage perfectly logical and do remember supporting gays in the military. DOMA was a rearguard action in response to same sex marriage seeming to be on the way to be recognized by court action in Hawaii though it amended its constitution to allow the legislature to decide the matter itself (it didn't block it totally as most states eventually did). The moderate if wrong approach there would have been some form of the second section though again its breadth as to the courts might have caused problems when same sex marriages began in the early 2000s. This would have reaffirmed the traditional "public policy exception" rule without singling out one form of marriage to deny federal benefits in "any" case (the breadth showing the Romer problem). Let things develop like marriage changed over the centuries.  Clinton signing this was disappointing though the book suggests even as late as 2011 you could be considered not a homophobe for opposing same sex marriage and in various ways Clinton was pro-gay.  Him being wrong -- along with some others more liberal than he was at the time -- should not erase that.

Anyway, putting aside the novelty suggested by some comments on the back cover is a tad exaggerated, the book provides a good personal look at the history here from the perspective of a lesbian who came out, fell in love, married her partner in Canada and eventually had a child with her (the partner conceived). So, it is not just a legal account -- though my carping above aside, that is covered well too including early happenings in NY -- but a personal story as well.  It is a brisk read -- these days with the Internet and all that is important for me! -- and recommended.

Update on Completion: Nothing really to add except this news story. Actually, two things. First, "Windsor" is actually her name per a brief marriage to a man in the 1950s. A bit strange to me she kept the name especially since the man eventually remarried.

And, I am a bit depressed etc. that no justice couldn't accept the judgment on federalism grounds. The argument isn't to me compelling but given at least Justice Thomas' jurisprudence, it seems compelling enough to warrant a fuller refutation than briefly offered (with silent agreement by Justice Thomas) in Alito's dissent. It is true only Alito among the dissenters accepted standing for the "U.S." or BLAG (the House), but all the justices discussed the merits. Cf. the Perry case where the dissent would have went to the merits but didn't discuss them.

While I'm here, since I went back to listen (Oyez.com), including the bench statements, at least Alito focused on how it's appropriate for Congress to favor one type of marriage. Scalia's usual scorn at how the majority were horrible activists for deciding the merits alone a bit hard to take -- apparently, it would be better for the Administration to put forth a half-hearted defense or put off  deciding the question until a better case would come along. Administration decided to let the courts decide a legal question. Shocker!  Didn't pay the 300K. There was a controversy.*

The other part was the b.s. about how terrible it was to disparage Congress and the President for passing DOMA. The law did harm gays and lesbians. Scalia et. al. thinks Congress has the power to legislate morals that way. Have the courage to simply state that here. If we told Scalia his marriage to his wife wasn't really "marriage" and she couldn't be given any benefits arising out of it since Italians can't get "married," would he not think they would be demeaned?  It's simple b.s. to argue "uniformity" was the reason, when ONE type of marriage was singled out there while other types not found in each state were not.


* Scalia noted during oral argument that back in his day that they didn't avoid defending statutes like this except if executive power was at stake or if there was no rational grounds. The Administration actually argued the latter though various people didn't believe it.  I think rightly so.  Another person in the know defends him here. Matter was disputed, but at worst, there were respectful arguments both ways.  And, given the range of ways DOMA also affects the executive department (e.g., the spouses of same sex couples, even after the end of "Don't Ask, Don't Tell," in the military), the second criteria to me is present.

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