Hollingsworth v. Perry

Driving to court this morning for a pro bono appearance, my Blackberry buzzed with the headline that DOMA had been struck down. Concurrently, the song “Fight the Good Fight” was playing on the radio. Indeed.

In France, there were violent protests in the streets when the issue was up for a vote. Here, some folks give a shrug and a “meh” to today’s news. Later, when the Court effectively struck down Prop 8, people in California began pilgrimages to their local courthouses or civic centers to look into getting married. It is indeed a great day to be an American….

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The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)

The Supreme Court was called to order at 10:00 a.m. sharp. The Chief Justice announced, “Justice Kennedy has our first opinion of the day in case number 12-307, United States v. Windsor. Everyone, in the bar members section at least, knew that this was the Defense of Marriage Act case.

That Justice Kennedy was announcing the opinion was significant; he wrote Lawrence v. Texas. Still, no one knew if the Court would reach the merits, since the Solicitor General had announced that the Executive Branch would not defend the constitutionality of DOMA.

Justice Kennedy is an orderly man. He set out the procedural background – Edith Windsor and Thea Spyer were married legally in Canada, then came home to New York. Their same-sex marriage is lawful where it was performed and where they lived. Spyer died and left her estate to Windsor. Windsor sought to claim an estate tax exemption for the death of a spouse. DOMA prevented the IRS from recognizing Spyer as Windsor’s spouse. Windsor paid the tax, then challenged DOMA. She won in the district court and the Second Circuit. Justice Kennedy explained how a bipartisan committee found counsel to defend DOMA, and how DOMA was defended ably in the Supreme Court.

(As an aside, Paul Clement took heat for defending DOMA for Congress. When you think about it, if he hadn’t defended it well, the Supreme Court may not have thought it could reach the issue. Paul Clement may be the unsung hero of the DOMA decision.)

So, Kennedy concluded, the Court could reach the merits of whether DOMA is constitutional.

Though a hopeful sign for those who would cheer the demise of DOMA, the decision wasn’t entirely clear….

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The headline in The Onion, which we noted earlier today, pretty much says it all: “Impatient Nation Demands Supreme Court Just Get To The Gay Stuff.” Today, the last day of the Term, SCOTUS granted our wish, issuing its long-awaited rulings on gay marriage in California and on the federal Defense of Marriage Act.

Last night, I attended the New York City Bar Association’s annual reception and cocktail party celebrating LGBT Pride Month. M. Dru Levasseur of Lambda Legal and Lisa Linsky were honored for their work advancing LGBT rights. In her eloquent remarks, Linsky noted that despite all the progress of our community, and regardless of what the Supreme Court rules today, many battles remain to be fought.

How many more battles, and of what intensity? Let’s find out what the Court just decided, on the tenth anniversary of the landmark decision in Lawrence v. Texas….

Please note the multiple UPDATES added below.

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Looking back, the part of last week’s arguments at the U.S. Supreme Court that stands out most for me is the last hour (DOMA merits) — a fitting finale to two days of historic argument on same-sex marriage.

The way things unfolded, the last hour is why we all came. It is why people slept on the sidewalk for days. It is why Americans tuned in and logged on for updates. It is why the attorneys signed up to argue.

We were there to discuss the future of marriage in this country, how different people see it, and where state and federal governments fit in.

The Prop 8 argument went to those core issues the day before, but in fits and starts. A muddy hybrid of standing and merits.

The last hour of DOMA went there and stayed there. Merits were the only thing on the menu, and we ate it up….

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[S]uppose a State said that, “Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.” Would that be constitutional?

– Justice Elena Kagan, in response to Charles Cooper’s contention that marriage is an institution that’s been historically and traditionally linked to procreative purposes, during yesterday’s oral arguments on California’s Proposition 8.

(This exchange led to a wildly entertaining political ad parody about the dangers of old people marrying, produced by the Daily Dolt. Because if there’s anything that’s “worse” than gay marriage, it’s gray marriage! Please continue reading to see the video; you can thank us later.)

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Yesterday, the Supreme Court heard arguments on California’s Proposition 8. Today, they’re hearing oral arguments about the Defense of Marriage Act. If you didn’t already know that, you’ve reached the wrong website, Brazzers is thataway.

High-profile Supreme Court cases attract large numbers of protesters who congregate on First Street, and yesterday was no different. Honestly, I don’t know why. I guess seeing gay people in drag humping each other makes for good television. I guess filming some dour-looking woman who appears to be locked in a loveless, frumpy marriage is a fine way to establish the “conservative” side of the argument. That stuff may work on your average “I must find out where my people are going so I can lead them” Congressperson. But I’m positive that nine unelected judges appointed for life who think this “institution” of gay people loving each other in committed relationships is “newer than cellphones” don’t give a damn about the shenanigans on the courthouse steps.

If these protests are useful, they’re useful to make a point to the media and those watching from home about the issues at play. Towards that end, a group of five law students staged a protest that really added something to the discussion here that even most talking-head court watchers didn’t bring up. Of course, it’s a point that went way over the heads of at least 90 percent of the television audience…

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The scene outside One First Street after the argument.

Dearly beloved, we were gathered together at SCOTUS today to argue about these fourteen words: “Only marriage between a man and a woman is valid or recognized in California.”

But we talked a lot about standing. And we did a lot of standing.

What time did I get to the Court?

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Ed. note: Lawyer and journalist Michelle Olsen, a member of the U.S. Supreme Court bar, attended today’s oral arguments in Hollingsworth v. Perry, the constitutional challenge to the Proposition 8 ban on same-sex marriage in California.

Her write-up of the proceedings will appear shortly. In the meantime, check out the photographs she took while at the Court, after the jump.

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Don’t try to answer my question with your own question.

– Justice Antonin Scalia, in response to Ted Olson’s attempt to ask the justice a rhetorical question during today’s oral arguments on California’s Proposition 8 at the Supreme Court.

(We’ll have additional analysis of the Hollingsworth v. Perry proceedings later today, courtesy of Michelle Olsen of Appellate Daily. You can follow Michelle’s real-time coverage on Twitter.)

Ted Olson

May those arguing on behalf of same-sex “marriage” present their arguments in an inept, confusing and unconvincing way. May they fail to gain traction in the minds of the Justices. May the right of Californians to amend their state constitution to protect marriage be confirmed by the Court, and may the Defense of Marriage Act be ruled constitutional (Lev 20:all; 1 Sam 2:8-10; 2 Chr 14:11; 20:12-27; Pr 22:28; 24:21; Is 8:18-20; Dan 7:25-27; 2 Cor 2:5).

– the Family Research Council, in a public message to “praying friends” regarding next week’s arguments in Hollingsworth v. Perry. (Gavel bang: Good As You.)

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