Popcorn and a Movie: Part II

Did you enjoy yourself at intermisson, guys?  Now that everyone's back in their seats, I'll continue with the discussion - which is as much to summarize and clarify what I know for my own benefit as for anyone else's.  Once again, I'm not a legal expert, just a highly interested observer of these things from afar.

(If you do want to hear a legal expert's opinion on these cases, read the excellent analysis by David Cole, Professor of Law at Georgetown University.  But he won't give you any popcorn or free movies, like me.)

Well, to pick up from Thursday's post, there are a number of ways the Supreme Court could decide the Prop 8 case, depending on which one can get at least five votes. Marty Lederman at SCOTUSblog analyzes at least seven possible rulings.

1. reversal on the merits, upholding Proposition 8 as being constitutional, not discriminatory against gays and lesbians;
2. dismissal of the Proposition 8 sponsors’ petition for lack of appellate standing (leaving the ruling of U.S. district judge Vaughn Walker intact and thus returning same-sex marriage to California immediately, if not sooner);
3. dismissal of the petition as improvidently granted by the Supreme Court – a “DIG” (same result as above); or
4. overturning of the court of appeals’ decision (which upheld what Judge Walker ruled) and sending the case back to the Ninth Circuit for reconsideration in light of whatever the Court does in Windsor, the DOMA case.

and three different ways of striking down Proposition 8, in line with Judge Walker's findings of fact that it does discriminate against gays and lesbians for no good reason:

1. a ruling that applies only to California;
2. a ruling that would guarantee same-sex marriage in the eight states that already offer all the benefits and other incidents of marriage (i.e., most civil unions and some domestic partnerships); or
3. a sweeping ruling that would provide a constitutional right to same-sex marriage nationwide.

After a good bit of argument and analysis, he sees the dismissal on standing grounds or an “eight-state” ruling on the merits as being the most likely outcomes.  He doesn't see a reversal on the merits, or a nationwide ruling, as being within the realm of possibilities for the Court at this time.  I'll leave it up to you guys to go read his analysis and see if you agree.

Many commentators I've read this week do seem to think that, having considered the cases back to back, the DOMA ruling will likely have a major effect on how the high court decides the Prop 8 case.  So let's turn to that now.

Continued after the jump . . .

First, you have to realize that DOMA - the Defense of Marriage Act, which became law in 1996 - has two operative sections.  (The first section merely says "This Act may be cited as the "Defense of Marriage Act.")  So let's look at the other two sections, the meat of it:

Section 2. 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.

Which brings us back to the Full Faith and Credit Clause of the U. S. Constitution. Here Congress is saying that states can ignore any same-sex marriages from other states. It doesn't require them to ignore those marriages; but it gives them permission to ignore. Which of course, most of the non-same-sex marriage states do, depending on their own laws or state constitutional amendments passed since 1996. The Full Faith and Credit Clause, by the way, was never used to force Southern states to recognize interracial marriages; federal courts have traditionally been reluctant to force states to disregard their own public policy.

Which is a big part of the reason why the Supreme Court waited until 1967 to outlaw interracial marriage nationwide, because by that time only 16 states (all former slave states) still forbid the marriage of different races, and although the rest of the country was not entirely approving of it either, popular opinion had swung far enough against segregation in all its forms that the Court felt comfortable making such a ruling. That's your Head Trucker's take on it, anyway; of course, the Court detailed all its fine constitutional reasoning in the ruling on Loving v. Virginia.

Well, so what's Section 3 say? Here you go:

Definition of "marriage" and "spouse."  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.

This applies not to the states, like Section 2, but to the federal government itself. And being translated, it means that even if you and your hubby have, like, the most fabu-mongous wedding ever atop the Empire State Building or on the White House lawn, or anywhere else gay marriage is legal - your gay ass is not ever gonna see a dime's worth of benefit from your spouse's Social Security, Veteran's benefits, joint federal income tax, family housing on a military base, immunity from testifying against him if he gets hauled into a federal court - NONE of the 1,138 rights and benefits granted to married couples by federal law. Which, as Justice Ginsburg so deliciously observed this week during the hearing, means you and the hubster, poor bastards, have only a "skim-milk marriage" - because:

They're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little federal sphere and it's only a tax question. It's as Justice Kennedy said, 1100 statutes, and it affects every area of life.

So you see, it doesn't matter what state you live in, or where you got married - the federal government itself declares you have no such marriage, and thus the two of you are legally just strangers, with no rights and no claim on any resources or benefits from the feds.  It's as if your marriage never existed, and you never loved.

Come we now to the case of Edie Windsor, and a more appealing, more deserving plaintiff could hardly have been dreamed up by all the combined talents of Hollywood. Still vivacious and lovable at 83, she has a cause and a case only an inhuman Scrooge-Grinch monster could ignore: a love story spanning nearly half a century with the love of her life, both of them well-educated professionals, gainfully employed, a smart, lively, very handsome couple deeply in love all the way to the end. Two years before Thea died, they married in Canada. Even so, the feds hit the newly widowed Edie with an inheritance tax bill of $363,000. Though of course, as Edie herself has said, if Thea had been Theo, Edie would have owed the feds not one penny; spouses are exempt from estate taxes.

So after taking a lawsuit against Uncle Sam up the appeals ladder - and gaining even the cooperation of the Obama Administration, which likewise thinks that Section 3 of DOMA is unconstitutional - Edie finally had her day in the Supreme Court this week. And what's not to love about Edie? But what will they do with her case?

Well, they might do several things, some of them unhelpful to us. For one thing, as every schoolboy even half awake in civics class knows, the job of Congress is to make laws, and the President's job is to enforce them. As the Constitution says, "he shall take care that the laws be faithfully executed." So how can a President just decide on his own not to enforce a law, or to say that it is unconstitutional - that's the Supreme Court's job, no?

Well, yeah, but - other Presidents, both Republican and Democratic, have from time to time taken a similar position with other laws and gotten away with it; that's not so much an issue here. What is an issue is the particular point of this case: the lower courts told the government, Hey, you can't do that, it's not fair and not constitutional - so give Edie her money back! And the Obama Administration, through it's lawyers, said: Ya know what, peeps? We agree, it was the wrong damn thing to do, so we're not going to fight the case, and we're totally cool with our groovy gal Edie.

But then the case winds up in the laps of the Supremes, and that raises the big hairy issue of standing, same as we saw in the Prop 8 case, where California likewise refused to defend a law they said is unconstitutional. The Obama Administration's lawyers appealed the case to the Supreme Court but are not defending the law. The Solicitor General, the government's lawyer, is there saying, Hey supreme dudes, this is just so totally wrong, overturn the law! It's the creepy-crawly BLAG monster that has stepped in to argue for upholding DOMA - BLAG being a mere five-member committee of the House of Representatives. Three of the committee members - ahem! for my peers who catch the irony of that phrase - are Republicans, so it's essentially a tool of House Republicans to oppose same-sex marriage at the Supreme Court. (And they are spending $3 million to do it - Your Tax Dollars At Work.) The Republicans in the Senate aren't even in on this deal. So is that, like, you know, legal? - is the very first question the Supremes have to figure out - the question of standing.

Now most commentators I've read so far seem to think that the Court will find a way around the standing issue in this particular case. Standing, as I understand it, requires that to bring a suit to court, you have to be injured in some way - not necessarily physically, of course, but in some legal sense at least. Or they might not. Jacob Combs of Equality on Trial gives this analysis of what could happen next:

If the Court were to rule both that BLAG lacks standing to defend DOMA and the federal government cannot appeal a decision that it agrees with, there would be no ruling on DOMA’s constitutionality. The Second Circuit’s dramatic decision invalidating DOMA would be vacated, and the district court’s ruling striking down the law and ordering a tax refund for Edie Windsor would be final. DOMA would still be on the books and it would be up to President Obama to decide whether or not to continue enforcing the law.

Lots of commentators think that since Uncle Sam has to cough up a third of a million dollars and give it back to poor Edie, the Court will likely see their way clear to overlook the Administration's agreement with the judgment - and ignore BLAG - and move on to the merits, the core legal arguments, of the case and to questions of scrutiny, or how big a magnifying glass the Court will use to look at those arguments.

I'm gonna pause here to refresh my coffee and let a CNN legal analyst talk about that stuff for a couple minutes:



Okay, I'm back. Hello?  Tap. Tap. Tap. Ya there? Awright buddies, now you see that this is not simply a question of Should we give all this money back that we took from a sweet, groovy little old lady that we were being mean to? If it were, that would be a no-brainer. But the Court is looking at something more difficult to decide. Once again, Jacob Combs explains that if the court gets that far, we seem to be on firmer ground, in his opinion and that of many others:

There was a clear majority on the Court in favor of invalidating DOMA: the liberal Justices appeared open to striking down the law as a violation of equal protection, while Kennedy and Chief Justice Roberts (and, to an extent, Justice Alito) seemed open to ruling it an unconstitutional intrusion of federal power upon an area of traditional state sovereignty. Between these five to seven Justices, some majority decision against DOMA seems very likely.

In other words - the law that shafted Edie violates the Equal Protection Clause, or federalism (i.e., states' rights), or both.  Sounds good, right - we're home free, no? Ah, but remember - there are two parts to DOMA (emphasis mine):

A ruling striking down DOMA would only affect Section 3 of the law (since only that section was challenged in court) and would allow married same-sex couples across the country to access federal marital benefits. Of course, Section 2 of the law, which allows states to ignore marriages between same-sex couples obtained in other states, would remain on the books. (It’s also likely that even without Section 2, states would be free to continue to ignore same-sex couples’ marriage licenses from outside states.) . . .   As always, it would take further litigation to sort through these issues entirely.

Plus, it seems to me, there would be a danger in making the states' rights finding:  if only states have the right to define marriage, then I know of at least two dozen, maybe three, that will never allow any filthy homos to defile the sanctity of holy matrimony - not in our lifetimes, bubba.  But on the other hand - how could the Court reason thataway, when they in fact did overrule state definitions, and thus states' rights, in the Loving case?

Futhermore, even if they go with the sexy Equal Protection argument or its homely sister, the Due Process Clause, since they are dealing with a section of a federal law, they don't have to apply it to anything the states do.  They could - just exactly as they did in Loving - but nobody seems to think that the high court is ready to walk that particular mile just yet.  The country's come a long ways on gay rights, but not quite far enough for the Court - ever mindful of its reputation, and its duty to retain the respect of the Nation for the rule of law - isn't going there this year, I just don't think.  It would take five votes to extend gay marriage nationwide, and I'm not seeing that from all I've heard and read. 

Though I do believe all three women are on board with us for the Equal Protection argument - but Justice Ginsburg - another awesomely groovy gal - before joining the high court expressed her feeling that Roe v. Wade, the Texas abortion case of 1973 that resulted in the Court's legalizing abortion across the whole country, went too far, too soon, stirring up a backlash and controversy we are still living with.

Still, there's a feeling in the air that the time is right for same-sex marriage, a tingle I can feel all the way out here on the windswept prairie of Texas.  And yet - can we even count on the Court to overturn Section 2 of DOMA?  Chief Justice Roberts made a telling point when he said to Edie's lawyer, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

Uh-oh, red flag.  Translation:  If you have so much support on your side, and a powerful political lobby, the Court doesn't need to get involved - you can eventually get everything you want through the political process, and at the ballot box.  We can wash our hands of this whole business, in that case - you don't really need our help."

Which is why the birdbrained screaming queens - whether gay, straight, or otherwise - in the media who do stupid things like put out magazine covers announcing "Gay Marriage Already Won" are not doing our cause any favors.  If it's a done deal already - there's no fricking need for the Court to bother settling cases in our favor.

And who knows?  The Court might sidestep the issue and just give Edie's money back, without applying a rule for everyone else.  Unlikely, given the current mood of the country - but not impossible.  Whatever they do in the Windsor case will surely be done in tandem with what they do in the Prop 8 case - and I would dearly love to be a fly on the wall when those nine justices get around to hashing it all out in chambers. 

But all we do know for sure is that the rulings will come down sometime between now and when the Court rises for its summer recess at the end of June.  Most likely to me, and lots of other observers, would be a striking down of Section 2 of DOMA - maybe even by a vote of 6-3 or 7-2 - leaving Section 3 intact, and states still free to not recognize or perform same-sex marriage - but gays who marry in states where it's allowed would come under all the benefits of federal law.  And I want to believe that no matter what any justice said or didn't say in the Prop 8 hearing, that they have all read and been persuaded by Judge Walker's magnificent fact-finding and logic in the Prop 8 case - not to mention the "40,000 children" of gay parents in California that Justice Kennedy brought up - and will somehow find a way to restore marriage equality to the Golden State, if nowhere else. 

It's very gratifying to see that the august New York Times agrees with your Head Trucker on this likely outcome.  We'll see if the justices follow suit.

Or they might go in some direction that nobody can guess right now.  Most observers thought the high court would surely strike down Bowers v. Hardwick in 1986, but were painfully disappointed when they instead upheld Georgia's sodomy law.  And you guys remember last year, when everybody on the right and the left thought the Court was going to strike down Obamacare - but surprisingly didn't, Chief Justice Roberts having apparently made a last-minute about-face.  So there's just no telling.

But we're at the bottom of the popcorn barrel now, so I will leave you to digest these thoughts on your own, and you can wash it all down with this big gulp of a thought: 

Marriage matters.  A helluva lot.  More work will remain to do after these two cases are ruled on.  And we must not slacken the pace, or begrudge the labor.  Every day of the year, someone - part of a gay couple - dies, or is hospitalized, or needs sick leave or health insurance, or goes to court, or gets in debt, or buys a house, or sells one, or joins the military, or changes jobs, or retires, or starts a business, or goes bankrupt, or needs a loan, or a credit card, or a thousand other things where marriage makes a real, a crucial difference in people's lives. 

It's not about mere love and affection, you see - you don't need a marriage license for that, it's true - hell, you don't even need one to throw a truly faaaaabulous wedding reception and have a bootie-bumping blast with all your friends and kinfolk.  You can do that any day of the week, even every week, if you please.  But don't confuse a marriage with a wedding - they are two entirely different things.

What people need marriage for is the protection of the laws - the protection of all they have and hold together as married people - money, property, pensions, insurance, credit, sick leave, privacy, security, stability - all the things that give love a safe, secure place in which to root itself and grow. 

Moreover, marriage creates kinship - instead of your boyfriend's mom or brother, or your lover's dad or sister, you now have actual relatives "in law" - and it changes deeply the way they see you, and thus to some degree, the way they treat you, and vice-versa.  Not to mention the fact that marriage makes you and your hubby next of kin - so even if the parents are monsters, they can't just take over if your husband dies, clean out the house, sell the car and furniture, change the locks, confiscate the bank account, and set you on your ass at the curb - as has indeed happened to many and many a bewildered, hurting gay man or woman left behind - the law protects you, automatically, even if you have no children and he left no will.  (Though of course it's much better if he does.)

There's also the equal respect and dignity conferred by society on legally married couples.  Children cannot marry.  Slaves could not marry.  And until recent decades in some parts of the country, the mentally disturbed or mentally handicapped could not marry, nor could convicted criminals in prison.

The point being:  in the eyes of society, and if you have any sense, in your own - you are not fully grown up, you are not fully free, you are not fully competent, mentally or legally, until you have the right to marry.  Like Dred Scott, whom I mentioned in the first post, if you cannot marry, then you are not really a complete human being - just something in the shape of one.  Think about that.

And now, without further ado, the movie as promised, and I know you're gonna like it.  So settle back, get comfy now, and watch the complete, unabridged story of a magical, marvelous love:  Edie and Thea - A Very Long Engagement.