Nel's New Day

March 28, 2013

DOMA = ‘Skim-Milk Marriage’

Exchanges during the Supreme Court during the last two days demonstrate the dinosaur opposition toward marriage equality of conservatives and the understanding regarding discrimination of  banning same-sex marriage with the middle ground between these two extremes.

No one is likely to know rulings on these two cases about allowing same-sex couples to marry in this country until June when SCOTUS contemplates recessing, but most people interested in the issue are guessing. I’m going with the majority of the media: couples in California will most likely be able to get married, and DOMA will be overturned. No more, no less. These decisions will result in a multitude of lawsuits while governments try to sort out this chaos.

Five justices–Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—appeared to support the position that the group of citizens who sponsored and voted for Proposition 8 had no legal standing to bring the case to the Supreme Court. If the five agree to dismiss the case, Prop 8 would probably still be overturned in California, but there would be no precedent on the issue for the rest of the country.

Meanwhile, I love the statements, clueless or otherwise, made within the arguments. My absolute favorite came from Justice Ginsberg when she said that DOMA provided “two kinds of marriage; the full marriage, and then this sort of skim-milk marriage.”

Ginsberg said this to Paul Clement, the lawyer that my tax dollars are paying to enshrine discrimination against me personally as he argues the continuance of DOMA: “Mr. Clement, if we are totally for the States’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people—if that set of attributes, one might well ask, What kind of marriage is this?”

Clement tried to explain that DOMA was not intended to exclude same-sex couples but was just enacted to define marriage for federal purposes. Justice Kagan didn’t accept his argument, however, saying that Congress’s passing was “infected by dislike, by fear, by animus.”  She said, “Well, is what happened in 1996—and I’m going to quote from the House report here—is that ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”’

Solicitor General Donald Verrilli disagreed with Clement: “There are no genuine administrative benefits to DOMA. If anything, Section 3 of DOMA makes federal administration more difficult [because of a patchwork of state laws]. And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that.”

Justice Sotomayor said, “So they can create a class they don’t like—here, homosexuals—or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as married?”

In the argument that SCOTUS should let the states decide a definition of marriage, lawyer Roberta Kaplan said, “You’re not taking it one step at a time, you’re not promoting caution, you’re putting a stop button on it, and you’re having discrimination for the first time in our country’s history against a class of married couples.”

The above statements were all made during the DOMA argument. Prop 8 arguments the day before sometimes got a bit saltier.

In an exchange with the pro-Prop 8, anti-marriage equality lawyer, Charles Cooper, Justice Kagan asked him how letting gay couples marry harmed traditional marriages. “How does this cause and effect work?”

Cooper answered, “It will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” According to Cooper, the key to marriage is procreation. [One-third of the Supreme Court’s sitting justices, married at one time, did not procreate. In fact, George and Martha Washington didn’t procreate.]

Justice Stephen Breyer responded, “I mean, there are lots of people who get married who can’t have children. To take a state that does allow adoption and say—there, what is the justification for saying no gay marriage? Certainly not the one you said, is it?” [Breyer’s statement was followed by Justice Samuel Alito awkwardly trying to make a joke about Strom Thurmond having a child in his seventies.]

Kagan agreed: “I can just assure you, if both the woman and the man are over the age of fifty-five, there are not a lot of children coming out of that marriage.”

In questioning discrimination against LGBT people , Chief Justice John Roberts tried to point out powerful the LGBT lobby: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.” [Endorse maybe, but 31 states will have constitutional amendments declaring that marriage is “between one man and one woman,” and only nine states have legalized marriage equality.]

Justice Alito tried to point out that the court shouldn’t rule in favor of marriage equality because it is so new: “But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we—we are not—we do not have the ability to see the future.” [The first same-sex couple came to SCOTUS over 40 years ago in Baker v. Nelson. Marriage equality is not an institution in the United States because the Supreme Court and Congress prevented it.]

“Same-sex marriage is very new,” Justice Alito complained. “It may turn out to be a good thing; it may turn out not to be a good thing.” [Maureen Dowd asked, “If the standard is that marriage always has to be ‘a good thing,’ would heterosexuals pass?]

“Same-sex couples have every other right,” Roberts said, “It’s just about the label in this case.” [This piece of wisdom came from the Chief Justice of the U.S. Supreme Court?!]

Verrilli reminded the justices that the argument by opponents of interracial marriage in Loving v. Virginia was to delay because “the social science is still uncertain about how biracial children will fare in this world.” [The court’s rationale is exceptionally ironic when one considers that a biracial person born before Loving now sits in the White House.]

Justice Kennedy demonstrated that he understood the plight of many families: “There are some forty thousand children in California, according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

Justices spent time during the Prop 8 trying to figure out how they got into the situation of arguing the case.  “I just wonder if the case was properly granted,” said Justice Kennedy.

Justice Sotomayor seemed to agree: “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”

Theodore B. Olson, lawyer for the two couples fighting for marriage equality, said about Prop 8, “It walls off gays and lesbians from marriage, the most important relation in life thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not O.K.”

When Cooper rose to give his rebuttal at the end of the session, Justice Kennedy asked the first question. “You might address,” the justice said, “why you think we should take and decide this case.”

Justice Sotomayor said it all in her question for Prop 8’s lawyer, Cooper: “Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits?”

And Cooper responded, “Your Honor. I cannot.”

Justice Clarence Thomas said the same thing both days: nothing.


The case challenging DOMA was brought by Edith Windsor, an 83-year-old New York widow who inherited a large estate when her spouse died. Because her spouse was a woman, she faced a federal estate tax of $363,000. Justice Ginsberg’s “skim-milk” argument came from Clement’s argument that DOMA prevents states from “opening up an additional class of beneficiaries,” i.e. married gay couples “that get additional federal benefits.” The 80-year-old justice took exception to the term “additional benefits” immediately following Kennedy’s statement that there are at least 1,100 federal statutes that affect married couples. Every same-sex couple prevented from a partner’s Social Security benefits, tax-free health benefits, freedom from estate tax, etc. etc.

[During your leisure time, check out these 60 best anti-DOMA signs.]


March 26, 2013

Scalia Needs to Resign

In the past, no one knew how many of the Supreme Court justices would vote in many decisions. They didn’t even consistently follow follows the politics of the presidents who appointed them. For example, the progressive ruling on Roe v. Wade to legalize abortion in the United States was supported by justices appointed by Richard Nixon.

For the past few decades, however, SCOTUS decisions have rarely been surprising. Perhaps now people can more accurately guess who justices will vote on almost any issues because of the rapid increase of communication about justices’ backgrounds and perspectives that contributes general understanding about their opinions or separate takes on constitutional issues. Or maybe the lines are so delineated that people can guess the decisions.

This year, people interested in the marriage equality are wondering how several justices will rule on the two cases being heard today and tomorrow, one regarding Proposition 8 in California and and the other DOMA (Defense of Marriage).  Both Prop 8 and DOMA ban same-sex marriage. Six justices are in play for the decision, which will probably be issued in June. Justice Samuel Alito is almost certainly a vote for the status quo of no marriage equality, but there is no question about two justices, Clarence Thomas and Antonin Scalia.

Scalia has been more open than any other justice in his opposition to marriage equality. Some of his offensive comments have been made in connection with earlier cases regarding homosexuality.


In response to Romer v. Evans when SCOTUS held that Colorado could not have a constitutional amendment motivated completely by animus towards LGBT people, he said, “I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct.” He also said that giving LGBT people second-class status is like any other law “disfavoring certain conduct,” such laws disfavoring “drug addicts, or smokers, or gun owners, or motorcyclists.”

In Lawrence v. Texas, Scalia agreed that an outright ban on “sodomy” “undoubtedly imposes constraints on liberty,” but “so do laws prohibiting prostitution” or “recreational use of heroin.” Also in rejecting the Lawrence majority’s conclusion that private sexuality between consenting adults receives “substantial protection” under the Constitution, he responded “[s]tates continue to prosecute all sorts of crimes by adults ‘in matters pertaining to sex’: prostitution, adult incest, adultery, obscenity, and child pornography.” Later in his decision, he compared gay sex to bestiality.

Scalia also suggested that the bond between two men or two women in a committed relationship is no greater than the bond between two “roommates.” After all animosity, he concluded his Lawrence dissent with this assertion: “Let me be clear that I have nothing against homosexuals.”

One of Scalia’s arguments when he wrote the minority dissent for the 6-3 decision in Lawrence, was that this case set the scene for legalized marriage equality. “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned,” Scalia wrote.

Justice Anthony Kennedy’s majority opinion said the Court’s ruling against anti-sodomy laws “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Scalia’s retort: “Do not believe it.”

“This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court,” he wrote.

The Reagan-appointed justice accused the majority on the Court of having “taken sides in the culture war” and having signed on to the “homosexual agenda.”

Although it’s been years since Scalia equated laws banning sodomy with those barring bestiality and murder, he still supports this position. Speaking at Princeton University late last year, he explained his statement by saying, “I don’t think it’s necessary, but I think it’s effective.” He also repeated his earlier argument: “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” 

Earlier last year, he again compared homosexuality to abortion and murder. At a speech before an audience at the American Enterprise Institute in Washington, D.C. last October, he said, “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

As Bill Press wrote, there was a time when Supreme Court justices were “seen and not heard,” but now a few of them are “spouting off all the time.” He added that it is “pretty scary to have someone like this on the Supreme Court” and that Chief Justice John Roberts should force Scalia to recuse himself from the two marriage equality cases facing the Supreme Court.

Yet Scalia claimed at the Southern Methodist University earlier this year that he never expressed personal views on gay marriage in public or in his rulings. He also said that a crucial part of his post as Supreme Court justice is reaching decisions, even if they contradict one’s personal beliefs. After SMU professor Bryan A. Garner pointed out that he and Scalia had differing opinions on some issues such as marriage equality and gun control, Scalia retorted, “I haven’t expressed my views on either of those. You’re a bleeding heart.”

Scalia has admitted to a fear of and possible loathing for gays and lesbians but insisted in a Fox News interview that he leaves personal feelings at the door of the courtroom . . . or possibly the university lecture hall.

Because Scalia believes that the U.S. Constitution is not a living document, that it’s “dead, dead, dead,” he is bound to vote against marriage equality because gay rights are not specifically protected by that document, drafted in the eighteenth century.

As a Supreme Court justice, Scalia isn’t legally bound by the rules of judicial conduct that apply to judges in all other U.S. courts. He has the legal—if not ethical—right to say anything he wants regarding cases before the court. He doesn’t have to obey the rules of conduct that require judges to avoid the appearance of impropriety, defined as “when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s … impartiality … is impaired.”

The only way that Scalia can be removed from the Supreme Court bench is for the House of Representatives to indict him for “high crimes and misdemeanors” and the Senate to convict him of such lack of “good behavior.” Technically, Scalia has done nothing illegal; he just behaves in an unethical manner. Only one Supreme Court justice has been impeached, Samuel Chase, and that was over 200 years ago.  Although the House indicted him, the Senate found him not guilty.

When Scalia became a judge, he said that he would retire at the age of 65 because that was the age necessary for full salary in retirement. He loves the power and won’t quit, but it’s far past time for the 77-year-old justice to hang up his robe.

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