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to Section One | to Arts & Entertainment
posted Friday, June 28, 2013 - Volume 41 Issue 26
DOMA IS DEAD! - Prop 8 appeal dismissed!
Section One
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DOMA IS DEAD! - Prop 8 appeal dismissed!

by Mike Andrew - SGN Staff Writer

In a pair of historic decisions issued June 26, the U.S. Supreme Court struck down DOMA and declined to rule in the Prop 8 case, giving same-sex couples the federal benefits of marriage and clearing the way for same-sex marriages to resume in California.

The decision on DOMA was close, as expected, with Justice Anthony Kennedy joining the court's so-called liberal bloc to produce the 5-4 majority.

Writing for the majority, Kennedy laid out a very sweeping criticism of DOMA, concluding that it 'violates basic due process and equal protection principles applicable to the federal government ...'

He said that the law 'instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.'

'The federal statute is invalid,' Kennedy concluded, because 'no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom that State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.'

STATES' RIGHTS INVOKED
DOMA also intrudes on the states' traditional role defining marriage, Kennedy said.

'DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,' he wrote.

While their rejection of DOMA was much broader than some legal experts had expected, the majority explicitly stopped short of finding that Gay and Lesbian couples have an affirmative constitutional right to marry.

'This opinion and its holding are confined to those lawful marriages,' Kennedy wrote, referring to marriages concluded in states where they are already legal.

Consequently, the court's DOMA ruling does not mean that marriage equality is now the law of the land, but it does have important consequences for Gay and Lesbian couples who are already married or can get married.

OBAMA URGES SWIFT ACTION
President Obama, who concluded in February of last year that DOMA was unconstitutional, immediately took steps to bring federal agencies into line with the decision.

'I've directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for federal benefits and obligations, is implemented swiftly and smoothly,' the President said in a statement.

Attorney General Eric Holder said the Department of Justice would work 'expeditiously' to implement the court's decision, and Secretary of Defense Chuck Hagel promised that his department 'will immediately begin the process of implementing the Supreme Court's decision in consultation with the Department of Justice and other executive branch agencies.'

'The Department of Defense intends to make the same benefits available to all military spouses - regardless of sexual orientation - as soon as possible. That is now the law and it is the right thing to do,' Hagel added.

One of the obvious changes under the ruling will be in federal tax law. Windsor v. United States, the case in which the Supreme Court struck down DOMA, was after all a tax case. Married same-sex couples will now be able to file joint returns if they choose, and will avoid costly taxes when they inherit property from a partner.

In other areas there will be changes as well. Only minutes after the Supreme Court issued its ruling, an immigration court judge in New York halted deportation proceedings against the Colombian-born husband of U.S. citizen Sean Brooks, the court's ruling having removed the legal rationale for treating them as unmarried individuals.

PROP 8: NO STANDING
The Prop 8 case was also decided by a 5-4 vote, with conservative Justices Roberts and Scalia joining more liberal Justices Ginsberg, Breyer, and Kagan in the majority.

Speaking for the majority, Chief Justice John Roberts said the Prop 8 case had come to the Supreme Court improperly, because the original sponsors of Prop 8, who appealed the case when the State of California declined to do so, did not have legal standing to sue at the federal level.

'We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,' he said. 'We decline to do so for the first time here.'

The court's decision overrules the Ninth Circuit Court of Appeals, which found - relying on a decision by California's Supreme Court - that the original Prop 8 backers did have standing to defend the law.

While the Supreme Court vacated, or set aside, the Ninth Circuit Court's ruling, the underlying decision by federal District Judge Vaughn Walker striking Prop 8 down stills stands, and can take effect as soon as the Ninth Circuit's stay pending appeal is lifted.

'WEDDING BELLS WILL RING'
Immediately after the Prop 8 ruling was announced, California Gov. Jerry Brown initiated a process to begin issuing marriage licenses to same-sex couples.

'In light of the decision, I have directed the California Department of Public Health to advise the state's counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted,' Brown said.

'As soon as they lift that stay, marriages are on,' California Attorney General Kamala Harris said. 'The wedding bells will ring.'

Although Gay and Lesbian couples will once again be able to marry in California, by throwing out the appeal on narrow technical grounds the justices avoided a discussion of the constitutional issues raised by Walker in his original 2010 decision striking Prop 8.

In ruling on the basis of the 14th Amendment to the U.S. Constitution, Walker essentially asserted that Gay and Lesbian couples have a positive right to marry that cannot be restricted by state law. This is a conclusion that the U.S. Supreme Court studiously avoided addressing in its DOMA decision.

Thus, the high court removed a stumbling block for already married same-sex couples, but also left in place numerous state laws that prevent such couples from getting married. The future of those state laws will undoubtedly be the subject of future litigation, when - for example - a couple legally married in New York retires to Florida and claims legally married status there.

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DOMA IS DEAD! - Prop 8 appeal dismissed!
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Reactions to this week's historic Supreme Court marriage equality decisions
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From the Publisher's Desk
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Trans legal victory in Colorado - Student allowed to use the restroom of her chosen gender
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'The winds of freedom are blowing' - Sec. of State Kerry pledges continued fight for LGBT rights
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The Guide at Pride: A brief history
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