USA: Yesterday Outside The Supreme Court
Video by activist Mark S. King.
Video by activist Mark S. King.
Visit their Facebook page.
This happened yesterday (via BuzzFeed):
Denying same-sex couples the right to marry is unconstitutionally discriminatory, Mexico’s Supreme Court announced in a sweeping ruling made public Monday.
The ruling not only makes a strong statement about Mexican law’s treatment of equal protection guarantees, it also relies heavily on civil rights rulings handed down by the U.S. Supreme Court. Although several justices of the American court take pride in not caring what foreign courts say, any who read the Mexican decision will find the court makes an impassioned case for the United States to follow its lead.
Writing for a unanimous tribunal, Minister Arturo Zaldívar Lelo de Larrea invoked the U.S. cases Loving v. Virginia and Brown v. Board of Education to argue for marriage equality in a way that American activists would be overjoyed to see from a justice of the U.S. Supreme Court.
On Loving v. Virginia, which struck down laws against interracial marriage in 1967, Zaldívar wrote (translated from its original Spanish):
- The historical disadvantages that homosexuals have suffered have been well recognized and documented: public harassment, verbal abuse, discrimination in their employment and in access to certain services, in addition to their exclusion to some aspects of public life. In this sense … when they are denied access to marriage it creates an analogy with the discrimination that interracial couples suffered in another era. In the celebrated case Loving v. Virginia, the United States Supreme Court argued that “restricting marriage rights as belonging to one race or another is incompatible with the equal protection clause” under the US constitution. In connection with this analogy, it can be said that the normative power of marriage is worth little if it does grant the possibility to marry the person one chooses.
Zaldívar also wrote that it would also be contrary to the principles of the 1954 school desegregation case Brown v. Board of Education to restrict same-sex couples to civil unions or domestic partnerships while barring them from marriage.
It can be said that the [other] models for recognition of same-sex couples, even if the only difference with marriage be the name given to both types of institutions, are inherently discriminatory because the constitute a regime of “separate but equal.” Like racial segregation, founded on the unacceptable idea of white supremacy, the exclusion of homosexual couples from marriage also is based on prejudice that historically has existed against homosexuals. Their exclusion from the institution of marriage perpetuates the notion that same-sex couples are less worthy of recognition than heterosexuals, offending their dignity as people.
The ruling had been anticipated since the court announced December 5, 2012, that it would order the state of Oaxaca to recognize the marriages of the three same-sex couples that had filed suit. But the court waited to spell out its justification for this decision in a written ruling for two-and-a-half months, suggesting there may have been disagreement about just how broadly it should make the case for marriage equality. The couples’ lawyer, Alex Alí Méndez Díaz, told BuzzFeed the opinion was posted on the court’s site Monday.
The court broke important ground in the ruling by invoking another precedent from international law, a ruling handed down in 2012 by the Inter-American Court of Human Rights, Karen Atala Riffo y Niños v. Chile. Most Latin American countries recognize the jurisdiction of the Inter-American Court, which is the legal arm of the Organization of American States. (The United States and Canada do not submit to the court’s jurisdiction.)
Karen Atala was a Chilean mother who was denied custody of her children during divorce proceedings with her ex-husband because she is a lesbian. The Inter-American Court said the Chilean courts violated Atala’s human rights and for the first time said that gays and lesbians were protected from discrimination under international law, declaring that the American Convention on Human Rights, “prohibits … any rule, act, or discriminatory practice based on sexual orientation.”
A trio of same-sex couples from Chile have already started proceedings in the Inter-American justice system claiming that the Atala precedent means that international law should also protect the right to marry. If they succeed, it could open the door to marriage rights throughout Latin America for same-sex couples.
The Mexican marriage case was the first test in any Latin American court of whether the decision in Atala’s case can be applied to marriage rights. The court held that it could, writing that Atala requires the rejection of “a regime of separate-but-equal marriage.”
Hunter Carter, a lawyer for the Chilean couples suing to marry in the Inter-American Court, told BuzzFeed, “This opinion is a huge win for marriage rights for same sex couples in the Americas.”
Despite its breadth, this ruling will have only a small immediate impact in Mexico.
Technicalities of the country’s legal system mean that only the three couples who brought this case will be able to marry right away. Mexico City is still the only jurisdiction inside Mexico where marriage between same-sex couples is fully legal; several more lawsuits will have to be brought before that right is available nationwide.
Unlike in the United States, it takes more than one ruling from Mexico’s Supreme Court to strike down a law—the court must rule the same way in five separate cases before a law falls. This ruling concerns three separate cases; it will take two more for any same-sex couple in Oaxaca to be able to wed easily, and then the process may have to be repeated in other states. But this precedent means this is a procedural issue, not a legal one.
For the lawyer who brought this suit, Méndez, the verdict is still a big win.
“Without a doubt, we have made history … in Mexico. The next step is to extend this experience to other parts of the country,” he said.
The U.S. Supreme Court has announced that it will consider whether to grant review in AFER’s federal constitutional challenge to California’s Proposition 8. The Justices will meet to discuss our case, along with several challenges to the so-called Defense of Marriage Act (DOMA), at their private Conference scheduled for Tuesday, November 20. The Court is expected to either:
- Grant review of our Prop. 8 challenge, at which point AFER’s legal team, led by distinguished attorneys Ted Olson and David Boies, will submit written briefs and present oral arguments by April 2013. A final decision on Prop. 8 and marriage equality is expected by June 2013.
- Deny review, making permanent the landmark federal appeals court ruling that found Prop. 8 UNCONSTITUTIONAL. Marriage equality will be restored in California.
AFER adds: “The Court is expected to release an Order List with its decisions on cases it has granted or denied review from its November 20 Conference by Monday, November 26.”
The Huffington Post reports:
Justice Ruth Bader Ginsburg said Wednesday that she believes the Defense of Marriage Act will likely go to the U.S. Supreme Court within the next year.
Ginsburg spoke at the University of Colorado in Boulder. She was asked a student-submitted question about the equal-protection clause and whether the nation’s high court would consider it applying to sexual orientation.
Ginsburg said with a smile that she couldn’t answer the question. She said she could not talk about matters that would come to the court, and that the Defense of Marriage Act would probably be up soon.
“I think it’s most likely that we will have that issue before the court toward the end of the current term,” she said.
The 1996 law has been declared unconstitutional by a federal judge in New York and is awaiting arguments before the 2nd U.S. Circuit Court of Appeals. Those oral arguments are scheduled for Sept. 27.
The law was passed by Congress and signed by President Bill Clinton after the Hawaii Supreme Court issued a ruling in 1993 making it appear Hawaii might legalize gay marriage.
Since then, many states have banned gay marriage, while eight states have approved it, led by Massachusetts in 2004 and continuing with Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland and Washington state. Maryland and Washington’s laws aren’t yet in effect and might be subject to referendums.
In February 2011, President Barack Obama and Attorney General Eric Holder instructed the Department of Justice to no longer defend the Defense of Marriage Act.
Ginsburg’s remarks came at a conference sponsored by the University of Colorado law school. Ginsburg talked mostly about entering the legal profession when there were few female lawyers and even fewer judges.
The students roared with laughter when Ginsburg told of scrambling even to find a women’s restroom in law school at Columbia University in the 1950s.
“We never complained, that’s just the way it was,” she said to laughter from the students.
The case challenging the constitutionality of California’s Proposition 8 is “an attractive vehicle” for determining “whether the States may discriminate against gay men and lesbians in the provision of marriage licenses” — but the Supreme Court should pass on the case, lawyers challenging the law say, and let stand an appeals court ruling that strikes down the 2008 amendment on narrow grounds.
If the Supreme Court takes the advice of Ted Olson, David Boies and the other lawyers representing the plaintiffs in Perry v. Brown, then Proposition 8 would remain unconstitutional, as the Ninth Circuit Court of Appeals held, and same-sex couples in California would regain the right to marry that they had been able to exercise briefly in 2008.
The proponents of the law asked the Supreme Court on July 31 to take the case and uphold the voter-initiated constitutional amendment that had the effect of reversing a California Supreme Court decision that allowed same-sex couples in the state to begin marrying under state law.
In the filing before the Supreme Court, Olson, who was President George W. Bush’s top Supreme Court lawyer in the Department of Justice, is the counsel of record for the plaintiffs — meaning it is he who would be likely to make the case to the justices in oral argument should the court accept the case.
He and Boies, Al Gore’s lawyer in the 2000 election recount litigation who opposed Olson at the Supreme Court, argue today that the lower court decision striking down Proposition 8 properly applied a 1996 Supreme Court case, Romer v. Evans, calling the Ninth Circuit’s opinion a “straightforward application of settled Supreme Court precedent.”
In the Romer case, the Supreme Court held that Colorado’s voters unconstitutionally enacted an amendment that prohibited cities from passing nondiscrimination ordinances that would protect gay, lesbian and bisexual people from discrimination. Because the California Supreme Court had held that California’s constitution required allowing same-sex couples to marry and then the people’s vote in 2008 ended that, the Ninth Circuit held that Proposition 8 was similarly invalid.
The proponents argued to the Supreme Court that the Ninth Circuit had “fundamentally” misapplied the case, as well as another Supreme Court case addressing when states withdraw previously granted “state-law rights.”
The filing today by the plaintiffs in the case was slightly unusual, as it suggested that the case was “an attractive vehicle for approaching—if not definitively resolving— th[e] issue” of whether states can restrict the right of same-sex couples to marry.
Nonetheless, the lawyers for the plaintiffs assert that Supreme Court’s standards for when it takes a case “lead inexorably” to the conclusion that the court should not take the case. In addition to arguing that the appeals court properly applied the Romer decision, the plaintiffs argue that, even if it did not, there remain questions, raised previously, about whether the proponents of the law have legal standing to bring the appeal when the state defendants have not done so. Finally, they argue, there are additional reasons why the courts could strike down Proposition 8, including its claimed abridgment of the affected couples’ right to marry.
The proponents, represented by Charles Cooper of Cooper & Kirk, will be able to present the Supreme Court with a response to today’s filing, and the court will then consider once the justices return from their summer recess whether they will take the case in the coming term that begins in October.
Edith Windsor, 83, who is in poor health, has asked the Supreme Court to bypass the lower appeals court and hear her case.On Monday, lawyers filed a petition on behalf of Edith “Edie” Windsor, an 83-year-old lesbian from New York, asking the Supreme Court to review her case, thus bypassing a second round in the 2nd Circuit Court of Appeals, where the case is scheduled to appear next. Earlier this month, the Obama administration asked the high court to review two other cases challenging DOMA’s constitutionality. With Windsor’s petition, there are now three cases, from three of the most significant gay marriage states, that could challenge DOMA at the Supreme Court as early as next spring, if the court consents to hear them. Windsor sued the government in 2010, after the death of her partner of more than 40 years forced Windsor to pay more than $363,000 in federal estate tax on her partner’s estate.
The ACLU writes via press release:“Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition,” said Roberta Kaplan, a partner at Paul Weiss and counsel to Windsor. “Because the District Court’s ruling in her favor is entitled to an automatic stay of enforcement, Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime.” “The impact of DOMA is felt most dramatically today here in New York,” said NYCLU executive director Donna Lieberman.
The ACLU adds that Windsor will continue to defend herself in the Second Circuit Court of Appeals while she awaits a response from the Supreme Court, which has been hit with several other DOMA-related requests in the last month.
In a surprising move, the Justice Department has asked the Supreme Court to hear two challenges to DOMA. The Solicitor General has filed petitions for certiorari in both cases. Scottie Thomaston writes at Prop 8 Trial Tracker:
- The Golinski case is scheduled for oral argument at the Ninth Circuit the week of September 10, but the Justice Department is asking to bypass the Ninth Circuit hearing and ruling entirely and head directly to the Supreme Court where they can review issues such as the level of scrutiny and past precedents that may conflict with a ruling striking down DOMA. In the Ninth Circuit, a case called High Tech Gays is settled precedent; it held that gays and lesbians are not a protected class and laws impacting gays and lesbians aren’t entitled to heightened review. This can only be overturned by a Ninth Circuit en banc panel – and the Justice Department originally sought initial en banc review in Golinski but was denied – or by the Supreme Court. So putting the issue squarely before the Justices is a significant step. And in fact, in their certiorari petition, the Justice Department tackles the issue of heightened scrutiny for laws affecting gays and lesbians head on.
The second DOMA case is Gill v. OPM/Massachusetts v. HHS. The House GOP requested Supreme Court review on that case last Friday.
UPDATE: Lambda Legal sends a press release.
- This development highlights the desire by all, the government included, to resolve this issue quickly. It is clear to us, to the Solicitor General and to the Department of Justice that DOMA’s days are numbered. The last four courts to consider the question have all found Section 3 of DOMA — which prohibits the federal government from recognizing same-sex couples’ valid marriages — to be unconstitutional. DoJ’s action may speed the day when the Supreme Court reaches the issue. Lambda Legal and Morrison & Foerster stand ready to argue for fair treatment for Karen Golinski and her spouse, Amy Cunninghis, in any court, at any time - and we welcome this opportunity to finally put DOMA out of its, and our, misery.
The Advocate reports:
House Republicans have made the pivotal move of appealing a Defense of Marriage case to the Supreme Court.
Minority Leader Nancy Pelosi confirmed the decision in a statement condemning Speaker John Boehner and House Republicans for deciding “to waste more taxpayer funds to advance a position rejected by four different courts and to defend discrimination and inequality before the highest court in the land.”
Pelosi sits on the Bipartisan Legal Advisory Group that oversees decisions about the House’s legal action in the case. Republican leadership controls the committee.
Republicans are appealing a federal court decision that found in May that DOMA is unconstitutional in the combined cases of Gill v. Office of Personnel Management andMassachusetts v. United States. It was the first time DOMA had been ruled unconstitutional, but it wasn’t the last. Others are also on a path to the Supreme Court.
House Republicans gave themselves a $1.5 million budget as they pick up the defense of DOMA after the Obama Justice Department dropped it, saying the law is indefensible because it’s unconstitutional. Pelosi said Democrats have rejected what she calls the Republican “assault on equal rights.”
“We believe there is no federal interest in denying LGBT couples the same rights and responsibilities afforded to all couples married under state law,” Pelosi said. “And we are confident that the Supreme Court, if it considers the case, will declare DOMA unconstitutional and relegate it to the dustbin of history once and for all.”