The strategy and legal question that has been buzzing around LGBT circles, and articulated here at OpenLeft by Mark Matson, is whether or not advocates for equality between same-sex and opposite-sex couples should actually be hoping for the Department of Justice to appeal the case to the First Circuit and then the Supreme Court. The reason is because these cases are limited in their effects to the married, same-sex couples residing within Massachusetts borders only, while if the case is appealed and won at the First Circuit, same-sex couples in other states (most notably New Hampshire, which has legalized same-sex marriage, but also a few other states and Puerto Rico) would benefit. And of course, if won at the Supreme Court, it would affect the country.
The answers is complicated. Let me first get into the pathway for equality going forward.
First, let me say the caveat that after speaking with numerous legal experts, it is unlikely that one of the three following events would occur:
1) The Department of Justice declines to appeal.
2) The Department of Justice appeals, and our side wins, but the Department of Justice then declines to appeal to the Supreme Court.
3) The Department of Justice appeals, and our side wins, and the Department of Justice appeals to the Supreme Court, but the Supreme Court declines to hear the case.
I'm also told #3 is especially unlikely to occur if our side wins at the First Circuit.
With that said, let's say for the sake of argument that one of the three does occur. The question on the table, then, is what is the pathway to equality for married, same-sex couples living in other states not in the First Circuit (either currently with legalized same-sex marriage now, or in the future)?
I spoke on the phone this afternoon with Gary Buseck, the Legal Director at GLAD, and over e-mail with Adam Bonin, the resident legal guru over at DailyKos and an attorney with Cozen O'Connor in Philadelphia. According to them, the pathway would be as follows:
1) Married, same-sex couples in other states/territories would need to experience some form of discrimination similar to what Gill experienced in the GLAD case, e.g. a denial of benefits such as health insurance for her partner that constitutes the federal government having two separate classifications of married couples- one with rights, one without. This is the rationale for the GLAD lawsuit.
2) The couples would need to become plaintiffs in a suit and file in the federal jurisdiction in which they live. This would then route through their own legal system, beginning with the appropriate federal district court and then into the Court of Appeals with jurisdiction over that district.
Alternatively,
1) A state would need to experience the same kind of treatment as Massachusetts did, which under Coakley argued that it was being forced to choose between denial of federal aid and discriminating against its own residents.
2) A state Attorney General would need to file a similar lawsuit on these grounds.
Essentially, go through the same process that has been gone through here, should one of the three situations listed above occur.
And of course, the other avenue to accomplish the same goal is to enact Rep. Nadler's Respect for Marriage Act, which would repeal the entire DOMA statute, as well as legally extend the same federal rights and recognitions accorded to opposite-sex couples, no matter the state in which they are residing.
Now, does having to go through the legal maneuvers, plus the pain of continued discrimination, overpayment in taxes, having to buy one's own health insurance, denial of certain Social Security benefits, etc. while the cases are working their way through the system, constitute a reason to hope that the Department of Justice appeals so that the effects of the ruling can be expanded across the nation?
That may be the wrong question to ask. Aside from it being unlikely for one of the three situations to come true, it appears unlikely that the SCOTUS will not hear this case, sooner or later.
I say that for three reasons Gary and I worked through. One, it's not likely that one by one, a lawsuit or lawsuits will work its way through each of this country's twelve circuits (not including the Federal Circuit, which only does patent law) over the next few decades, and every single time the federal government declines to appeal. Nor is it likely that if the government does, that every single time the SCOTUS declines to hear them. If we lose at one, it's also not likely to happen for a second reason, which Gary pointed out to me- where there is a conflict in circuit court rulings- e.g., we win at the 1st Circuit but the 9th Circuit decides differently- that is often where the SCOTUS decides to step in. A third reason it's also not likely is because if our side prevails, I'm told it's more likely the SCOTUS will hear the case than if we lose.
So, when it comes to advocates for equality, there are definitely downsides to the government not appealing. On the other hand, this seems to be a road that has an end at the SCOTUS anyway, sooner or later. With that point of view, what would matter in determining whether or not to hope for appeal is your view of how friendly the SCOTUS is, now versus in the future. Which may be the better question to ask.
Questions have come in on why this ruling applies only to married same-sex couples living in Massachusetts, and how to expand it. The simple answer is that was the arena for the case in the District Court. The case now goes to the First Circuit, which includes New Hampshire, Rhode Island, Maine and Puerto Rico. If it is upheld there and not overturned at the Supreme Court, it would affect couples in New Hampshire as well, where same-sex marriage is legal- and of course, couples if/when marriage becomes legal in those other states/Puerto Rico. Kent Greenfield explains:
The rulings apply to Massachusetts, but if a higher court with a broader jurisdiction were to hear an appeal and agree with the judge's rulings, their impact would spread, said Boston College professor Kent Greenfield, a constitutional law expert. The rulings might encourage other attorneys general who oppose DOMA to sue to try to knock it down, he said.
While it's likely to be appealed, FWIW, Courage Campaign has a petition up urging President Obama to direct the Department of Justice to not appeal.
Tobias Barrington Wolff from UPenn Law School, a colleague and expert in constitutional law and LGBT issues, was on The Rachel Maddow Show (guest-hosted by Chris Hayes) discussing next steps, a possible DOJ appeal, and the scope of this case with respect to marriage.
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On responses to cases like this, and Prop 8, I've noticed an interesting trend in political and legal strategy, which is to engender similar discrimination upon heterosexual couples as is upon same-sex couples. One example is the ballot initiative attempt in California that would ban heterosexual divorce. Another was described by commenter BBCWatcher yesterday:
States which recognize same-sex marriage, such as Massachusetts, could pass mini-anti-DOMAs that strike recognition of all marriages conducted in states that do not recognize all marriages conducted in Massachusetts. In other words (Massachusetts could say), if you don't recognize ALL our marriages, then we'll recognize NONE of yours.
That would be a neat tactic to accelerate a case through the courts that honors the "full faith and credit" clause in the U.S. Constitution. And it would sweep away mini-DOMAs everywhere. I don't see how the courts could do avoid purging all those mini-DOMAs. The full faith and credit clause is incredibly important.
I'm no legal expert, so I can't speak to the potential of legal success on these strategies. I do think it would be hard to get legislators- particularly heterosexual ones- to enact such a law. Legislators would probably believe it to drive away all the heterosexual couples considering moving to Massachusetts (which it probably would). And as a means to obtaining equality, while doing something like advocating for a ban on heterosexual divorce and refusing to recognize out-of-state marriages may "enlighten" many people with respect to discrimination that same-sex couples face and bring them to the pro-equality side, it may also anger many, many others. I'm not one to believe that giving comeuppance "you did this to us, so we'll do this to you" is as effective a tactic as public education. It may be the slower and less sexy way, but it may also be the best.
I haven't written much about it, but Gay and Lesbian Advocates and Defenders has been handling an ongoing case filed last year- Gill vs. Office of Personnel Management which challenged Section 3 of the Defense of Marriage Act on the grounds that it violates the equal protection, and denies marriage same-sex couples in Massachusetts over 1,000 federal rights to which they would otherwise be entitled (such as Social Security survivor's benefits, filing taxes jointly, obtaining immigration visas, and more).
Perhaps more well-known, due to her run for Senate, is that Massachusetts Attorney General Martha Coakley had filed a companion case- Commonwealth vs. Department of Health and Human Services, as well.
Today, the U.S. District Court Judge Joseph Tauro found that Section 3 of DOMA does indeed violate equal protection with respect to the GLAD case, and the 10th Amendment with respect to state sovereignty in the Massachusetts case, and is therefore unconstitutional. Very big news.
The key graph from the latter case:
This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.
I will have more details as it comes in on where the case goes from here.
Update: For more background on the GLAD lawsuit, they have a nice summary posted here.
Update 2: My own musing, I have to think this may impact a ruling- either now or upon repeal- in Perry v. Schwarzenegger, which concerns whether Prop 8 violates the equal protection clause of the 14th Amendment.
Update 3: The full decision in the GLAD case can be found here.
Update 4: If you're interested in the personal aspect, the GLAD case concerns Nancy Gill and her spouse Marcelle Letourneau, who are legally married in Massachusetts. Nancy works for the US Postal Service, but is legally barred by DOMA from covering Marcelle on her health insurance plan, and must pay extra to insure her. As with other couples, Marcelle is not eligible for other spousal work-related benefits like Nancy's pension should something happen to her, or Social Security survivor's benefits.
Update 5: Got off a conference call with GLAD and Martha Coakley. The essentials:
In terms of immediate impact, the court granted summary judgment. The decision was not stayed. So their plantiffs and other legally married same-sex couples in Massachusetts are currently eligible for Social Security applications considered without respect to DOMA, file taxes jointly (if it were the time to do so), etc. The case is not applicable to legally married same-sex couples outside Massachusetts borders, though.
With respect to whether same-sex couples could retroactively do things like reclaim excess taxes files because of inability to files taxes jointly under DOMA, that is possible.
The decision does not affect Section 2 of DOMA, which says that states or territories are not required to recognize another state's same-sex marriages.
If the government appeals, the case will go to the 1st Circuit Court of Appeals in Boston. Mary Bonauto, the lead counsel, said "I fully expect" the government- meaning, Obama's Department of Justice- to appeal. Arguments are expected to take place in the fall.
Speaking of Obama's Department of Justice, this sure would have made an interesting line of questioning for Elena Kagan.
According to co-counsel, it would be "highly unusual for the Department of Justice not to appeal".
In theory, the case could go to the Supreme Court.
Update 6: I asked Mary two questions- one on the timeline and whether these two cases will continue in tandem going forward. She said that given the simultaneous decision and the issues, she expects both to be argued at the same time at the 1st Circuit.
The second was the effects of the GLAD case winning and the Coakley case losing, or vice versa, vis-a-vis the actual effects on same-sex couples, given that they challenge different elements of the law. Mary said if either case prevails, either at the First Circuit or upon appeal at the Supreme Court, "it would be a death blow to DOMA."
The last question was her opinion on the impact on Perry v. Schwarzenegger, which I opined upon above. Mary said that the District Court Judge addresses many of the same issues in both cases with respect to the rationales for DOMA in 1996, and while the situations are different- plantiffs are married in this decision- if she were reading the decision, it would be good to see as an advocate for a win in Perry. We'll see.
I have a follow-up question with respect to the impact on Section 2 of DOMA (states/territories not required to recognize same-sex marriages from other states) that I'll try and get an answer to later tonight or tomorrow morning.Update 7: Okay, I have an answer to this. Essentially, local recognition takes precedence. Even if Section 2 today were repealed, states with, for example, mini DOMAs or constitutional amendments banning same-sex marriages on their books would not recognize same-sex marriages from, say, Massachusetts, despite the Full Faith and Credit Clause of the Constitution and how states have customarily recognized marriages in other states in the past. The thing to do to solve this problem is to go state by state and repeal anti-marriage equality statutes like Prop 8. In other words, the best way to secure recognition of a state is to secure recognition in a state.
But in general, Mary clarified her earlier comment that a win at the 1st Circuit or the Supreme Court would mean a "death blow" to Section 3 of DOMA only. Rep. Jerry Nadler's Respect for Marriage Act would do away with Section 2 of DOMA as the way to address that.
Good news, and we'll see what happens at the 1st Circuit if/when the Department of Justice appeals.
A statement from Freedom to Marry is in the extended entry.
There is something going around in the LGBT rights movement for months that has me more than a little irritated, and it's the attitude that everything has to happen now now now, and that LGBT rights is more important than anything on the face of this Earth, so why isn't Congress voting on it tomorrow?!?!
One latest example, from Alex Blaze at The Bilerico Project:
The AP's optimistic about ENDA. Considering the fact that 90% of Americans support job protections for LGB people and 65% of Americans support such protections for trans people, we shouldn't have to be waiting for the stars to align when we already have a Democratic Congress and a Democratic president who says he supports the bill. But that's the new reality, where anyone to the left of GWB is a crazed dirty fucking hippie, and everything can be put at risk by the a hecklers' veto from a minority of the country that will never go along with anything.
Okay. So I am with everyone on the note that the Administration fucked up and insulted our community with the DOMA brief. I agree that movement on DADT can be done now. I agree that they mishandled the expansion of rights for folks working within in the Administration, although I give them credit for doing what can be done absent the legislation needed to expand the full range of rights. I give the Administration, and Congress, poor marks so far.
But call me an Uncle Tom or whatever, I actually do believe it makes some political sense to enact measures that (a) candidates run prominently on (b) make a wide swath of people happy (c) are are somewhat urgent (d) enable the Administration and Congress to become more popular so you can push through the more controversial measures. We should learn something from Clinton's 1993 experience on Don't Ask Don't Tell. For examples of such measures, see: pulling troops out of Iraq. See: trying to get the economy out of a tailspin. See: legislation to reduce foreclosures. See: credit card reform. See: Cash for Clunkers. See: health care reform.
LGBT rights isn't that. Yes, you can point to 90% of Americans supporting job protections and all of that. You can tell me ENDA isn't controversial anymore. That's not the relevant statistic here. The relevant statistic is that ENDA is probably 168th on the list of things people care about, just below whether their recycling gets picked up once or twice per week. Like it or not.
Yeah, I know things like stem cell research, which the Administration issued an executive order on this year, isn't necessarily on the top ten list of urgent national priorities. But I do know it's more important to more Americans than ENDA. Or hate crimes. Don't shoot me, I'm just the messenger.
So screaming at the President for not taking action on every single piece of LGBT rights legislation NOW NOW NOW and resorting to snark and whining is one tactic to pressure the Administration. I'm not sure it's the best one. I don't think LGBT rights should pushed off until the midterms or farther than that, and if some action isn't taken in Congress at some point early next year I will start having a problem. I don't think anyone should sit idly by while the Administration refuses action on DADT and screws us on the DOMA brief. But unless you're a single-issue LGBT voter- in which case, I have a serious nit to pick with you- I just don't think insisting your issue is the most pressing thing on the agenda is the the most politically savvy thing to do. Let's be smart about what to move on first.
Update:Over lunch, I read Bill Clinton's interview in the new Esquire edition. The part I want to highlight, where he answers a question relating to Obama pushing through a lot of change in a short period of time:
So do I think he's doing the right thing, even though he's jamming a lot of change down the system? I do. And he learned from some of the problems that I faced. For example, I am sure he's in favor of reinstating the assault-weapons ban, but he let Congress go on that and said, "Okay, you rural guys, we've got to deal with climate change, we've got to deal with health care, we ought to do this student-loan thing to get our college costs back in line and make it affordable again, so I'll cut you some slack on assault weapons."
Clinton said this in the context of how rural Democrats got destroyed in 1994. Something to think about as to perhaps why there is little movement on LGBT issues, rightly or wrongly.
As the Democratic Presidential race moves to California on February 5th, Senator Hillary Clinton holds the advantage in part because she leads Barack Obama among two crucial demographics: gays and Latinos. But if these groups were more "results-oriented" about which candidate would bring about substantive change for their community, Obama could have an edge. Clinton's husband signed the anti-gay Defense of Marriage Act when he was President, and she has only promised to scrap part 3 of DOMA - whereas Obama would repeal it entirely. While both have waffled on giving drivers licenses to undocumented immigrants, when pressed to take a position Clinton said "no" and Obama said "yes." Gays and Latinos either don't know such policy differences -- or else have put them aside in favor of symbolic gestures, high name recognition or top-down endorsements. Before it's too late, LGBT and Latino voters must look at the issues, and decide which candidate would better pursue their interests.
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