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  • Supreme Court to Hear Defense of Marriage Act Challenges: Legal Analysis

    It’s official: The Supreme Court announced today that it will take up the Defense of Marriage Act (DOMA) this term.

    This was hardly unexpected. As we previously noted, the High Court was almost certain to hear one or more of these cases after two federal circuit courts struck down DOMA as a violation of equal protection and since the Court almost invariably grants review when a major piece of federal legislation is struck down on constitutional grounds.

    Federal circuit courts of appeals are not bound by the decisions of the other circuits; thus, for the sake of uniform application of the law across the circuits, the justices need to determine the constitutionality of DOMA.

    Congress passed DOMA by an overwhelming bipartisan majority in 1996 in response to a Hawaii Supreme Court decision that held that the denial of a marriage license to a same-sex couple was subject to strict scrutiny under the state’s constitution. Strict scrutiny, Justice Lewis Powell once quipped, is “strict in theory, but fatal in fact,” since nearly all laws subject to strict scrutiny have been struck down.

    The portion of the law under attack is Section 3, which defines “marriage” as a union between one man and one woman—but only for purposes of federal programs and funding. DOMA leaves each state free to decide whether to recognize same-sex marriages for purposes of that state’s laws, but it provides in Section 2—which has not been challenged—that no state is required to give effect to another state’s recognition of same-sex marriages.

    More than half a dozen petitions involving challenges to Section 3 are currently pending before the High Court. Windsor v. United States from the Second Circuit (which the Court granted on December 7) emerged as the frontrunner for a likely grant of certiorari because, as court watchers have pointed out, if the Court agreed to hear Gill v. Office of Personnel Management out of the First Circuit, Justice Elena Kagan would likely have recused herself based on her work as Solicitor General.

    This will no doubt be a close case, and the justices know that every vote counts. Either the remaining petitions will be held pending the outcome in Windsor, or the Court could deny review as early as next week. Although the briefing and argument schedule has not been set, given the Court’s current docket, it could hear oral argument as early as March and issue a decision by the end of June.

    The primary issues the Court will evaluate in Windsor is what level of scrutiny applies to equal protection challenges in this context and whether the proffered rationales for DOMA satisfy that level of scrutiny. The three levels of review are strict scrutiny, intermediate or heightened scrutiny, and rational basis review, which we previously detailed. While the Second Circuit applied intermediate scrutiny in Windsor, every other court that has considered the issue has applied rational basis review.

    In February 2011, Attorney General Eric Holder announced that the Justice Department would no longer defend the constitutionality of DOMA—although it would continue to enforce it—and that, in its view, same-sex unions warranted “heightened scrutiny.” Consequently, the House of Representatives hired former Solicitor General Paul Clement to defend DOMA in pending cases.

    In defending DOMA, Clement has asserted that the government interests at stake include, among others:

    • Preserving a uniform definition of marriage across state lines for purposes of allocating federal benefits,
    • Protecting the federal treasury and respecting prior legislative judgments in allocating marital benefits on the understanding that they would apply only to heterosexual married couples,
    • Defending state sovereignty and democratic self-governance,
    • Exercising caution to avoid “the unknown consequences of a novel redefinition of a foundational social institution,”
    • Recognizing heterosexual couples’ unique ability to procreate and incentivizing the raising of children by their biological parents, and
    • Expressing a preference for optimal parenting arrangements by encouraging childrearing in a setting with both a mother and a father.

    In his dissenting opinion in Windsor, Senior Judge Chester J. Straub stated:

    The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so.

    The Supreme Court will now decide whether the Constitution enshrines a right to same-sex marriage or whether it will leave this divisive issue up to the people of each state and their elected representatives to decide, as we think it ought to do.

    In addition to DOMA, the Court also agreed to hear Hollingsworth v. Perry, a challenge from the Ninth Circuit involving California’s definition of marriage. Following a 2008 California Supreme Court decision recognizing a right to same-sex marriage, the people of California passed a constitutional amendment (Proposition 8) reinstating the state’s traditional definition of marriage. Soon after, Proposition 8 was challenged in federal court and eventually found its way to the Ninth Circuit, which held that the Equal Protection Clause of the Fourteenth Amendment bans the state from defining marriage as the union of one man and one woman.

    Posted in Legal [slideshow_deploy]

    8 Responses to Supreme Court to Hear Defense of Marriage Act Challenges: Legal Analysis

    1. Ron Swaren says:

      How can a court change something which is understood by billions of people as a natural event? Gays like to argue that the Christian religion is the only remaining block to getting what they want. But, obviously marriage—or some form of it—has been the predominant adult relationship all around the world since the dawn of mankind. So considering two people of the same sex as able to be married is categorically a contradiction in terms. It would be a great shame for the US Supreme Court to try to alter this basic fact of existence and nature. Besides there is so much sociological evidence which indicates that gay relationships are intrinsically different than normal ones. So much that to expose children to that is disastrous.

    2. Bobbie says:

      What federal benefits?
      Child deductions? Hospital visitation permission? That's an easy remedy unless there are family involved. What selfish people to go to such lengths when they base their love on sexual preference as reason to marry to get government attention and benefits. Heterosexuals contribute to humanity by reproducing humanity. What do homosexuals reproduce? Because marriage is evolving into an oxy moron why shouldn't benefits discriminate? Same sex, one sided, unbalanced marriage discriminates the true heterosexual definition of marriage To ration is to reason is to rationalize.

    3. Anita J says:

      Homosexuality goes against God's laws; both the written law (the Bible) and the visible law of nature. I am not saying that people who practice it are less than human. I do not believe that anyone is born a homosexual, but it is a lifestyle which is chosen. Surveys presumably say " x" number of people are in favor of recognizing homosexual "rights". However, God's view is what is important.

    4. jim says:

      the family is the strength of this country and it should be encouraged and the presence of a mother and father has been shown in studies as late as june 2012 by the university of Texas. There is nothing in the consttution giving rights to same sex marriage. Rome was so corrupt it frll apart and this country is headed in the same way. Saying you have rights does not make it right when it is abnormal.

    5. Whitney Galbraith says:

      Here is how one citizen views the matter of same-sex marriage, which I submitted to our local media in Colorado Springs. Mr. Fagin is a science professor at the U. S. Air Force. Whitney Galbraith

      From: Whitney Galbraith <wgalbraith@mac.com>
      Subject: Fwd: Libertarian contradiction
      Date: December 1, 2012 6:06:42 PM MST
      To: Gazette <opinion@gazette.com>
      November 29, 20112
      Barry Fagin and the Libertarian Contradiction
      In his Thursday essay (Nov. 29 – "Being Pandered To…), Barry Fagin proudly reiterates his libertarian determination to limit government influence in the lives of American citizens. He promotes as one of example of his libertarian convictions his support for same-sex marriage, which to some readers represents the greatest government intrusion in society in modern times – a philosophical contradiction of the first order of magnitude.
      He champions admirably the need for every Americans to "claim responsibility for his or her life" and for "keeping government out of their lives," planks that he correctly inserts into a "conservative" political platform.
      Yet a "conservative" might well challenge Mr. Fagin, and challenge him mightily, on his own turf and insist that on the topic of his own choosing, same-sex marriage, he confounds his audience by championing the very cause that more than any other current political movement guarantees the dissolution of the "responsible" society that he craves. Let us by all means, Barry, "keep government out of our lives." Let each of us by all means retain "the responsibility for our own lives" free of government intrusion. Let us by all means demand that our personal relationships, including our definition and understanding of marriage – that natural bedrock of society that allows every man and woman to be what they are meant to be, that allows every husband and wife to be what they are meant to be and that allows every mother and father to be what they are meant to be – are none of government's business.
      Specifically, if government in any of its guises arbitrarily redefines the institution of marriage in any fashion, it will redefine it out of existence. If marriage is contorted to mean "any two people," it will then surely come to mean "any three people," or more. We will see, inevitably, bigamy, trigamy and polygamy. We will see incest, pedophilia, bestiality and any other conceivable human relationship that will be "equal" to any other. The institution will have no defense against any assault that a democrat or a libertarian advocate can launch against it.
      For this "conservative," this rendering of marriage to irrelevancy bespeaks what may be the ultimate moral sterility of the libertarian philosophy.
      (Mr.) Whitney Galbraith
      Colorado Springs

    6. Beverly Thornton says:

      Many of us feel this is a waste of time and taxpayers money. If it is o.k'd by the Supreme Court then they are continuing to be a source of changing and bringing America into the gutter of life as they have already done with property rights and obamacare.

    7. Tom Richards says:

      Seems to me the rules for level of scrutiny point to rational basis. Homosexuality is not an immutable trait of birth. It is a behavior that is subject to moral control by every civilized person. Homosexuals are not politically powerless. In fact they are powerful both politically and culturally today. Homosexuality is broadly tolerated as private intimate behavior. Gay marriage would bring this private behavior to the public square and demand endorsement as equivalent in purpose and meaning to heterosexual behavior. By broadening the rules for heightened or strict scrutiny to apply to gays' equal protection claim, these rules become so broad as to necessarily include other claims from individuals of other classifications–polygamists for example.

    8. joeblow says:

      Unconstitutional? Take a look at our founding documents as well as every single state constitution. They all rely on God. Every religion's God, by whatever name, condemns any union except one man and one woman. To accept other than heterosexual criterion for marriage is to deny one of the principles on which this country was founded. Call it something else, if you insist on it, with whatever provisions seem to be appropriate in this crazy world, but not marriage.

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