Prop 8 and DOMA at the Supreme Court: Broad or Narrow Rulings?

Jan 16, 2013 Full story: www.towleroad.com 21

This is the third in a series of analyses about the Supreme Court's decision to hear cases challenging the constitutionality of the Defense of Marriage Act and Proposition 8. Today's discussion: the Questions Presented.

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Since: Oct 12

Coolidge, AZ

#1 Jan 16, 2013
I'm guessing that SCOTUS will decide the Prop. 8 case narrowly, and rule that DOMA is unconstituional broadly.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#2 Jan 16, 2013
Anyone expecting a broad ruling on either case is going to be disappointed.

If I have to predict an outcome (which I don't, but I will anyways), I'd say section 3 of DOMA is overturned without giving suspect classification and Prop 8 is overturned (possibly on a technicality) but limited strictly to California.

I suspect a deal is being made behind the scenes which results in married same-sex couples getting federal rights & benefits but allowing the states to battle out the issue state-by-state for now.

If anything, our victories in Nov make it LESS likely the SCOTUS is going to make any sweeping rulings.

I can live with that.

“TAKIA AND TA TONKA”

Since: Aug 08

HAPPY TOGETHER!!!

#3 Jan 16, 2013
WeTheSheeple wrote:
Anyone expecting a broad ruling on either case is going to be disappointed.
If I have to predict an outcome (which I don't, but I will anyways), I'd say section 3 of DOMA is overturned without giving suspect classification and Prop 8 is overturned (possibly on a technicality) but limited strictly to California.
I suspect a deal is being made behind the scenes which results in married same-sex couples getting federal rights & benefits but allowing the states to battle out the issue state-by-state for now.
If anything, our victories in Nov make it LESS likely the SCOTUS is going to make any sweeping rulings.
I can live with that.
The ruling specifically regarding Prop 8 is going to be interesting at best because I believe SCOTUS doesn't really like rulings coming from the 9th, but if they should overturn the 9th's ruling......they would still more or less narrow Judge Walker's ruling as well......but I look forward to reading the briefs and hearing the arguments in March.

The DOMA suit against Section 3 is probably a little less that climatic because I believe SCOTUS will toss SEction 3 of DOMA.

I do look forward to this having some type of closure, but the overall issue will not be done!!!

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#4 Jan 17, 2013
NorCal Native wrote:
<quoted text>
The ruling specifically regarding Prop 8 is going to be interesting at best because I believe SCOTUS doesn't really like rulings coming from the 9th, but if they should overturn the 9th's ruling......they would still more or less narrow Judge Walker's ruling as well......but I look forward to reading the briefs and hearing the arguments in March.
The DOMA suit against Section 3 is probably a little less that climatic because I believe SCOTUS will toss SEction 3 of DOMA.
I do look forward to this having some type of closure, but the overall issue will not be done!!!
I actually had a "productive" discussion with the "lawyer" from Vermont (Jane Dough or whomever) on another thread over the DOMA case, and he/she brought up some interesting points I hadn't fully considered; mostly revolving around the justification the SCOTUS will use to overturn section 3- i.e. federalism v equal protection.

In the end we both agreed DOMA is likely done, but the constitutional justifications will impact how things move forward nationally after that. Of course a large part of that also hinges on what happens to Prop 8 as well.

I wonder which case will be decided first, and will the decision in one case affect the other; or will they essentially be decided at once in a quasi joint ruling? I tend to think there will be horse-trading going on behind the scenes- i.e. forgoing suspect classification in the DOMA case to get votes for overturning Prop 8.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#5 Jan 17, 2013
NorCal Native wrote:
<quoted text>
The ruling specifically regarding Prop 8 is going to be interesting at best because I believe SCOTUS doesn't really like rulings coming from the 9th, but if they should overturn the 9th's ruling......they would still more or less narrow Judge Walker's ruling as well......but I look forward to reading the briefs and hearing the arguments in March.
The DOMA suit against Section 3 is probably a little less that climatic because I believe SCOTUS will toss SEction 3 of DOMA.
I do look forward to this having some type of closure, but the overall issue will not be done!!!
IF (note I say if) it comes down to it, which is more important- getting Prop 8 overturned or DOMA?

“TAKIA AND TA TONKA”

Since: Aug 08

HAPPY TOGETHER!!!

#6 Jan 17, 2013
WeTheSheeple wrote:
<quoted text>
IF (note I say if) it comes down to it, which is more important- getting Prop 8 overturned or DOMA?
For some it could be Prop 8, but for those already married....probably Section 3 of DOMA.

“TAKIA AND TA TONKA”

Since: Aug 08

HAPPY TOGETHER!!!

#7 Jan 17, 2013
WeTheSheeple wrote:
<quoted text>
I actually had a "productive" discussion with the "lawyer" from Vermont (Jane Dough or whomever) on another thread over the DOMA case, and he/she brought up some interesting points I hadn't fully considered; mostly revolving around the justification the SCOTUS will use to overturn section 3- i.e. federalism v equal protection.
In the end we both agreed DOMA is likely done, but the constitutional justifications will impact how things move forward nationally after that. Of course a large part of that also hinges on what happens to Prop 8 as well.
I wonder which case will be decided first, and will the decision in one case affect the other; or will they essentially be decided at once in a quasi joint ruling? I tend to think there will be horse-trading going on behind the scenes- i.e. forgoing suspect classification in the DOMA case to get votes for overturning Prop 8.
Well, I could say good for you to have had that sort of discussion with that individual, but I have a little more faith in Olson and Boies.

I agree that there will be a lot of dealings going on behind the scenes, but until the ruling is actually made with regards to Prop 8.......I'll continue to believe that Prop 8 is not going to be upheld and I say that because of the situation with those who are Same-Sex and still legally married, then the right being eliminated STRICTLY because of a religious groups animus towards a minority group......so, everyone is entitled to believe what they want.......and I'm sorry that some can't see Prop 8 the way I do or the way that Olson and Boies sees it.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#8 Jan 17, 2013
NorCal Native wrote:
<quoted text>
For some it could be Prop 8, but for those already married....probably Section 3 of DOMA.
I kinda meant as far as moving forward; which victory would have more importance nationally affecting the battles yet to come? Assuming of course the court doesn't go all the way and just rule ALL state & federal bans unconstitutional.

I hate the "either or" scenario, but I'm always thinking about the "what ifs" and how that could impact how we move forward.

Personally I lean more towards overturing DOMA as more significant, since even if Prop 8 is overturned, we'll STILL most likely have to battle state-by-state to get the rest. Whereas if Prop 8 should be upheld, it just means adding 1 more state to the list of bans we'd need to overturn.

The reason I ask is because of my belief a bargain may be happening behind the scenes at the SCOTUS; do the 4 liberal justices think overturning DOMA is more important than overturning Prop 8? Are they willing to horsetrade on Prop 8 for Kennedy's or even Roberts' support on DOMA? Could it even be Roberts who is driving it to avoid another 5-4 decision (either way) along partisan lines on a potentially explosive social issue?

Since: Dec 08

El Paso, TX

#9 Jan 17, 2013
DOMA it is, hands down. Keep in mind that most of the rights in marriage come from federal recognition of SS marriage. State recognition isn't much more than a spoonful of gravy on a heaping serving of mashed potatoes. I really don't give a rats ass what any state might do as long as my marriage is recognized by the Feds. The rest will take care of itself in due time.

I'd be curious as to what rights are messed with if a state doesn't recognize your marriage. In Teaxs most of the issues are readily addressed by simple legal forms you can print from the Internet or a single meeting with an attorney.
WeTheSheeple wrote:
<quoted text>
IF (note I say if) it comes down to it, which is more important- getting Prop 8 overturned or DOMA?

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#10 Jan 17, 2013
TomInElPaso wrote:
DOMA it is, hands down. Keep in mind that most of the rights in marriage come from federal recognition of SS marriage. State recognition isn't much more than a spoonful of gravy on a heaping serving of mashed potatoes. I really don't give a rats ass what any state might do as long as my marriage is recognized by the Feds. The rest will take care of itself in due time.
I'd be curious as to what rights are messed with if a state doesn't recognize your marriage. In Teaxs most of the issues are readily addressed by simple legal forms you can print from the Internet or a single meeting with an attorney.
<quoted text>
I tend to agree. And most of us already have those legal protections because we've been living without marriage equality all these years.

But I was really referring to which "win" or "loss" would impact our momentum and/or legal leverage to remove those remaining state bans going forward.

For example- Would a DOMA victory make it more likely Michigan's ban is overturned sooner, or would a Prop 8 victory do more? Or would neither have much effect either way?

I tend to think a DOMA victory would have more of an impact on the current & future state efforts simply because it takes away another of the anti-gays talking points- i.e. civil unions give all the same rights. More legislators and voters will see very clearly that civil unions CAN'T give all the same rights once the federal govt has to recognize our marriages.
heartandmind

Moline, IL

#11 Jan 17, 2013
i tend to think that DOMA is more important, on a national level. i know the couples and families in CA are hanging onto Prop 8, but, the bigger impact is chipping away at the federal level.

then there's also the case of the woman in NY who's suing to get her money back from the IRS that she paid in as inheretance taxes on an estate she and her legal spouse shared, yet she was required to pay since there's no federal recognition.

if that one goes, then i think we can see a quicker reaction, at least federally.

current DOMA cases may one deal with one leg of the law but i would anticipate further suits in the coming years (perhaps months) that will continue to chip away at it until it falls completely. once it falls, what then? will federal recognition or SSM or repeal of one man / one woman force states to accept the federal change? i suspect so, afterall, loving forced the laws in 7 states to change and allow interracial marriages.

interesting times these are. and i'm hoping in my lifetime to be able to legally marry my spouse in our home state of texas to protect our assets. we've been together 22 yrs so that hit will be monstrous when the time comes.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#12 Jan 17, 2013
heartandmind wrote:
i tend to think that DOMA is more important, on a national level. i know the couples and families in CA are hanging onto Prop 8, but, the bigger impact is chipping away at the federal level.
then there's also the case of the woman in NY who's suing to get her money back from the IRS that she paid in as inheretance taxes on an estate she and her legal spouse shared, yet she was required to pay since there's no federal recognition.
if that one goes, then i think we can see a quicker reaction, at least federally.
current DOMA cases may one deal with one leg of the law but i would anticipate further suits in the coming years (perhaps months) that will continue to chip away at it until it falls completely. once it falls, what then? will federal recognition or SSM or repeal of one man / one woman force states to accept the federal change? i suspect so, afterall, loving forced the laws in 7 states to change and allow interracial marriages.
interesting times these are. and i'm hoping in my lifetime to be able to legally marry my spouse in our home state of texas to protect our assets. we've been together 22 yrs so that hit will be monstrous when the time comes.
Congrats on lasting 22 years! We just celebrated our 26th but made it official a fews years ago in Massachusetts.

I tend to agree it will most likely be an incremental approach over multiple years, multiple cases, and possibly multiple SCOTUS's before the last ban finally falls. That said, I do expect to see that in my lifetime, probably sooner than I would have thought.

I'm truly astonished at the rate of change over the past 20 years. I know how much some people hate the comparison to the struggle for black civil rights, but I understand now something of what my parent's generation felt living though such sweeping societal changes.

In a way I almost feel sorry for the current young generation who may not fully appreciate what many of us went through to ensure they would be treated at least a little closer to equal than we were. I hope they don't take it for granted.
heartandmind

Moline, IL

#13 Jan 17, 2013
WeTheSheeple wrote:
<quoted text>
Congrats on lasting 22 years! We just celebrated our 26th but made it official a fews years ago in Massachusetts.
I tend to agree it will most likely be an incremental approach over multiple years, multiple cases, and possibly multiple SCOTUS's before the last ban finally falls. That said, I do expect to see that in my lifetime, probably sooner than I would have thought.
I'm truly astonished at the rate of change over the past 20 years. I know how much some people hate the comparison to the struggle for black civil rights, but I understand now something of what my parent's generation felt living though such sweeping societal changes.
In a way I almost feel sorry for the current young generation who may not fully appreciate what many of us went through to ensure they would be treated at least a little closer to equal than we were. I hope they don't take it for granted.
thanks! and congrats to you and yours! it's not easy, no matter the gender make-up, for any couple to last for longer periods of time, unless both are committed and willing and patient.
we have several friends that are older that tell us how it was even before we arrived "on the scene"...what it was like in the 60s and 70s in cities like Dallas, Houston and Austin. it was pretty scary even in those places during those earlier years. the 80s and 90s and even the earliest yrs of this century were scary enough.
the younger generation (20s) have it far easier - their peers don't care what's going on, they don't think anything of it. even when our oldest was in high school (graduated last yr), no one pays any attention to it. he caught no flack about his peers or his friend's parents.

i'm pleased to see the next generation deals with this so much more matter of fact than even my generation (and yours?) did. with our generation, it was the interracial thing, i guess...and now that's just such a non-issue, kids look at you like you're crazy if you ask them what they think about it.

my "guess" for the whole "shootin' match" to come tumbling down and we have those federal protections and are allowed to marry in all states and territories would be somewhere around the 5-8 yr mark. the last decade has been pretty fast and furious, just since the lawrence case was decided.

i thought for sure when obama made his statement last spring that was the final nail that would prevent him from being re-elected. there's still so much ill feelings towards the gay community across the nation (many places better than others) that i was really surprise that it was such a non-issue in the election cycle. i know polls tell us that the public opinion has now passed the half way mark, but the vitriol here tends to drown out the voices in those polls and sometimes is somewhat disheartening.

but, like i tell the kids "anything worth having is worth working for"....so lets all keep it up!

“TAKIA AND TA TONKA”

Since: Aug 08

HAPPY TOGETHER!!!

#14 Jan 17, 2013
WeTheSheeple wrote:
<quoted text>
Congrats on lasting 22 years! We just celebrated our 26th but made it official a fews years ago in Massachusetts.
I tend to agree it will most likely be an incremental approach over multiple years, multiple cases, and possibly multiple SCOTUS's before the last ban finally falls. That said, I do expect to see that in my lifetime, probably sooner than I would have thought.
I'm truly astonished at the rate of change over the past 20 years. I know how much some people hate the comparison to the struggle for black civil rights, but I understand now something of what my parent's generation felt living though such sweeping societal changes.
In a way I almost feel sorry for the current young generation who may not fully appreciate what many of us went through to ensure they would be treated at least a little closer to equal than we were. I hope they don't take it for granted.
Your last comment is very true, but then we also don't know the struggles that the generation before us went through with Stonewall and the raids........I think we need to keep things in perceptive because it is important to know that the younger GLBTQI community will probably see other things we won't!!!!

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#15 Jan 17, 2013
heartandmind wrote:
<quoted text>
thanks! and congrats to you and yours! it's not easy, no matter the gender make-up, for any couple to last for longer periods of time, unless both are committed and willing and patient.
we have several friends that are older that tell us how it was even before we arrived "on the scene"...what it was like in the 60s and 70s in cities like Dallas, Houston and Austin. it was pretty scary even in those places during those earlier years. the 80s and 90s and even the earliest yrs of this century were scary enough.
the younger generation (20s) have it far easier - their peers don't care what's going on, they don't think anything of it. even when our oldest was in high school (graduated last yr), no one pays any attention to it. he caught no flack about his peers or his friend's parents.
i'm pleased to see the next generation deals with this so much more matter of fact than even my generation (and yours?) did. with our generation, it was the interracial thing, i guess...and now that's just such a non-issue, kids look at you like you're crazy if you ask them what they think about it.
my "guess" for the whole "shootin' match" to come tumbling down and we have those federal protections and are allowed to marry in all states and territories would be somewhere around the 5-8 yr mark. the last decade has been pretty fast and furious, just since the lawrence case was decided.
i thought for sure when obama made his statement last spring that was the final nail that would prevent him from being re-elected. there's still so much ill feelings towards the gay community across the nation (many places better than others) that i was really surprise that it was such a non-issue in the election cycle. i know polls tell us that the public opinion has now passed the half way mark, but the vitriol here tends to drown out the voices in those polls and sometimes is somewhat disheartening.
but, like i tell the kids "anything worth having is worth working for"....so lets all keep it up!
Yeah, and we had the added stress of being dual career military couple on top of it. Though in retrospect, that most likely HELPED us learn to deal with stress & separation etc. Nothing makes the heart grow fonder than being stationed on opposite sides of the planet!

I'd say full equality by the end of the decade at the latest.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#16 Jan 17, 2013
NorCal Native wrote:
<quoted text>
Your last comment is very true, but then we also don't know the struggles that the generation before us went through with Stonewall and the raids........I think we need to keep things in perceptive because it is important to know that the younger GLBTQI community will probably see other things we won't!!!!
Good points.

I can't help but think of the little kid rolling his eyes as grandpa tells the story just one more time about marching on Selma, or protesting at Stonewall.

Damn those ungrateful kids these days........!!

“TAKIA AND TA TONKA”

Since: Aug 08

HAPPY TOGETHER!!!

#17 Jan 17, 2013
WeTheSheeple wrote:
<quoted text>
Good points.
I can't help but think of the little kid rolling his eyes as grandpa tells the story just one more time about marching on Selma, or protesting at Stonewall.
Damn those ungrateful kids these days........!!
I read this book about Pioneering Lesbians in the early days and it was truly interesting to see how far we have come especially in the last 20 years!!!

Yes, those damn younin's.......lol!!!

Since: Dec 08

El Paso, TX

#18 Jan 17, 2013
I well remember moving here from Chicago in '84". Our first New Years here we were invited to a rather "high brow" dinner party. During cocktails the discussion turned to being "out" in El Paso. By that point in my life I was a very out and proud Gay man, played Gay softball and in the bowling league in Chicago and always marched in the pride parade.

One of the couples at the party who had lived and had businesses together for more than 20 years claimed their families, who were local, didn't know they were Gay and you couldn't be out in El Paso.(Yeah right!) By that time I was standing on a chair in the kitchen waving my finger in the couples faces and telling everyone there that I'd never go back in the closet.

Five years later we were running the largest AIDS agency in the Southwest, funded by the city, two states and the federal government. In 1989 El Pasos Mayor participated in a Gay Leadership Conference we had put together to help the Gay community work
with business and not for profit organizations. The city, using $300,000 of federal Community Development funds purchased the apartment complex for us that was to become our AIDS Services Center.

Giving credit where it is due a very "quiet" guy from San Francisco had a lot to do with our changes, Harvey Milk.

Since: Mar 09

Location hidden

#19 Feb 25, 2013
Link to our side's SCOTUS brief:

http://www.afer.org/wp-content/uploads/2013/0...

“TAKIA AND TA TONKA”

Since: Aug 08

HAPPY TOGETHER!!!

#20 Feb 25, 2013
snyper wrote:
Link to our side's SCOTUS brief:
http://www.afer.org/wp-content/uploads/2013/0...
Thank you......I've seen it, but haven't read it yet......though I did read how Clements thinks the DOJ doesn't have any right to be involved with the case in front of SCOTUS because they won at the lower Court level.......wtf?

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