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Wednesday, March 27, 2013

United States v. Windsor: Arguments and Analysis

Edie Windsor arrives at the Supreme Court this morning,
accompanied by her attorney, Roberta Kaplan.

Here is the audio file of this morning's hearing on the DOMA case:

The transcript is here (PDF, 698 kb).


1.  Lyle Denniston, SCOTUSblog reporter: "Argument Recap: DOMA is in Trouble."

2. Amy Howe, Editor of SCOTUSblog: "DOMA as a States' Rights Problem? Today's Oral Argument in Plain English."

3. Tom Goldstein, Publisher of SCOTUSblog: "The Relationship between DOMA and Proposition 8."

4. Jacob Combs, Equality on Trial: "Supreme Court Likely to Strike Down DOMA: Here's Why."

5. Jacob Combs, "An In-depth Look at Questions of Standing and Jurisdiction."

6. Jacob Combs, "An In-depth Look at Questions on the Law's Merits."


7. Ezra Klein, The Washington Post: "Sorry, Justice Scalia: There's no evidence that gays aren't great parents."

For findings of fact on this matter, see In re: Gill, which was beautifully decided by a Florida court, ending three decades of prohibition on gay adoptions (which was begun at the instigation of Anita Bryant's notorious anti-gay-rights campaign in the 70's).

8. Jeffrey Toobin, The New Yorker: "Why the Gay-Marriage Fight Is Over."

9. Amy Davidson, The New Yorker: "The Skim Milk in Edith Windsor's Marriage."

10. Victoria A. Brownworth, The Advocate: "The Bigotry Isn't Over."

And after leaving the courtroom this morning, Edie Windsor tells us the Magic Word:

What a sweetheart, huh fellas?  BTW, she's been selected as a Grand Marshall of the NYC Pride Parade this summer.

Update, 3:32 p.m., Texas time: Now fellas, I have just listened to the tape and read along in the transcript, all the way from start to finish, which took two solid hours. And though I'm not an attorney and claim no special legal insight, I was impressed by what I read and heard. Of course, this is not, and was never intended to be, a full, complete discussion on the merits of same-sex marriage; that's not what a Supreme Court appeal is all about. Usually, the Court is asked whether the lower court or courts decided an issue correctly - it's in the lower courts where all the multitudinous details are threshed out and argued over.

Continued after the jump . . .

Having said that, I was nevertheless struck by the probing questions asked and the shrewd observations made by the justices; whether they are individually for or against same-sex marriage, what I hope all you fellas realize is that they are a very, very intelligent set of men and women, no better than they ought to be, heirs to all the flaws and foibles of humanity, who yet are seeking, collectively, a rational, reasonable, logical basis within the playing field of the Constitution for making a decision one way or another. Sure, some political considerations and philosophical ones come into play, too; but with the exception of the blatantly bigoted Scalia - who nevertheless has a very sharp mind - and the utterly silent Thomas, a judicial cypher, what I heard reassured me that our high court is working exactly as it should: 9 men and women earnestly and carefully examining the facts and judging the case before them.

Whether this case or any other comes out completely in our favor or not - though I strongly suspect that it will be pretty damn favorable - is somewhat beside the point. The system is, praise God, down to this date working as intended 225 years ago, working as it should. That does not mean it is perfect, or always reaches perfectly just decisions. The umpire does not always call the plays right. The Supreme Court does not always reach the right verdict at the right point in time; though eventually in the fullness of time it always has, at least so far.

My point is that all of us Americans should be profoundly grateful that the Court is there and doing what it is supposed to do, in line with the founding principles of the nation. There has to be a referee to call the game, even if sometimes he doesn't see as clearly as he ought. There has to be a court of last resort at the summit of the nation, even if it does not always make the perfect judgment. And when that happens, we still have to respect it, and the rule of law, and if need be, reorganize ourselves for further political action.

Otherwise, you get either Iran or North Korea, where one party or one religion rules everything, no questions or dissent allowed - or you get Syria, Bosnia, Rwanda, where there is no referee to stop opposing sides from slaughtering one another, down to the last man, woman, and child if possible. For now, at least, the great American experiment is still working, messy and noisy as it is, still chugging and clattering along, still progressing, if sometimes by fits and starts, towards that more perfect union which is always our goal.

And so I am proud to be an American today, whatever conclusions the high court reaches in these two marriage cases. Things are unfolding - eventually - as they should. The road still leads upward, for all of us, gay and straight and old and young, and male and female, red and yellow, black and white. The good still outweighs the bad in these United States, so far at least. I hope you understand, really understand, what I'm getting at here, pardners.

For the third time I will venture to predict the result of these two cases just heard by the Court:  marriage equality will return to California, and the feds will recognize all same-sex marriages in states where they are permitted.  As it says in the commercials, some restrictions and limitations may apply - but that's still a helluva great outcome, don't you think?  But these are not the end of the road for us; there will still be left a ways to go before we reach complete equality from sea to shining sea.  But we've come this far together, we can march on farther still.

Thursday, 9:12 a.m. - Rachel zeroes in on the issues and highlights of yesterday's hearing:

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Just one more: Ari Ezra Waldman makes some very good points in "Seven Takeaways from Marriage Week at the Supreme Court."


Tim said...

Written with passion and conviction Russ, Thank you for putting the situation so eloquently.

Russ Manley said...

Appreciate ya Tim.

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