Results tagged “DOMA”

June 26, 2013

By Associate Professor Justin Levitt Levitt2.jpg

This information was cross-posted from Election Law Blog.

DOMA has been struck down as unconstitutional. Prop 8 case from California dismissed on standing grounds (initiative proponents have no cognizable injury distinct from the general population). I haven't yet read thoroughly, but SCOTUSblog reports that neither finds a constitutional right to same-sex marriage.

DOMA decision is here; Prop 8 is here.

Both 5-4, very different majorities. DOMA is Kennedy, Ginsburg, Breyer, Kagan, Sotomayor; Prop 8 is Roberts, Scalia, Ginsburg, Breyer, Kagan.

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January 9, 2013

NeJaime2.jpgBy Associate Professor Douglas NeJaime

This op-ed originally appeared in The Advocate.

The Supreme Court has decided to hear two cases relating to marriage equality. The first, United States v. Windsor, raises the constitutionality of section 3 of the federal Defense of Marriage Act, which denies federal recognition to same-sex couples' marriages. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. After the court's announcement, many commentators and some LGBT activists speculated that the court's ultimate decision in the cases would bring the end of marriage-based discrimination against same-sex couples. Some expect the justices to extend the fundamental right to marry to same-sex couples. Others are focusing on equal protection, anticipating a ruling that sexual orientation classifications merit heightened scrutiny. Such a decision would immediately cast doubt on any form of sexual orientation discrimination, including the marriage prohibitions that a vast majority of states maintain.

But this might all be wishful thinking.

Yes, the court might have taken the Windsor case because the Second Circuit Court of Appeals applied heightened scrutiny to sexual orientation classifications, whereas the First Circuit's Gill v. Office of Personnel Management decision applied only rational basis review. But, more likely, the court might have taken Windsor and not Gill because all nine justices could participate in the case. It was widely believed that Justice Kagan would have recused herself from Gill given her role in the Obama administration during deliberations regarding that case.

[Read the complete story here.]

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June 8, 2012

NeJaime2.jpg By Professor Doug NeJaime

This op-ed originally appeared in the June 8, 2012 edition of the Los Angeles Times.

What will the Supreme Court decide first: whether states can deny same-sex couples the right to marry or whether the federal government can refuse to recognize same-sex couples' valid marriages under state law? Now that the U.S. 9th Circuit Court of Appeals has declined to rehear Perry vs. Brown, the challenge to California's Proposition 8, and the 1st Circuit has ruled Section 3 of the federal Defense of Marriage Act, or DOMA, unconstitutional, that question has taken on an increased sense of urgency. Although Perry may provide more dramatic and compelling litigation, the DOMA cases present the Supreme Court with the best way forward.

First, the DOMA cases introduce fewer political complications, teeing up the relatively limited question of whether the federal government can deny recognition to existing marriages. The plaintiffs have challenged only Section 3 of DOMA, which prevents the federal government from recognizing same-sex spouses. Section 2, which largely restates existing principles regarding interstate recognition, is not at issue. If the court agrees with the 1st Circuit on Section 3, states with marriage equality would have their laws recognized by the federal government. States without marriage equality would be unaffected; such a ruling would neither require them to issue marriage licenses to same-sex couples nor compel them to recognize marriages from other states. The political backlash, therefore, would probably be relatively limited.

Read the complete article here.

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