?Skim-milk? marriage

Justices had a few surprises in their DOMA and Prop. 8 comments

by Anthony Glassman

Cleveland--A narrow ruling by the Supreme Court in the Proposition 8 case seems likely, says a Cleveland attorney, and this would leave Ohio and other states out in the cold. But there were some pleasant surprises in comments by the justices last week.

Nancy Marcus, attorney with Cleveland firm Berkman, Gordon, Murray and DeVan and adjunct professor of law at the Case Western Reserve University School of Law, talked to the Gay People?s Chronicle about the high court?s oral arguments on California?s Proposition 8 marriage ban amendment and the federal Defense of Marriage Act on March 26 and 27.

Marcus looked at the highlights of the hearings and gave some insight as to what outcomes might be expected.

Synthesizing from her examination of the oral arguments and from what other legal experts are saying, she says it seems that the Proposition 8 case will be decided on narrow grounds.

?Either they [the justices] say the Proposition 8 defenders don?t have standing or they actually reach the merits of the case and say, in California, couples married and had that right taken away from them,? she noted.

She doesn?t think a ruling establishing a right to marry in California but not nationally would be good for couples elsewhere.

?People who are in Alabama lose, people who are in Mississippi lose,? she says. ?Our rights under the federal constitution are supposed to trump state laws. In 1968, we had a Supreme Court ruling saying that no state could outlaw interracial marriage.?

?We continue to be second-class couples,? she continued, pointing to Justice Ruth Bader Ginsburg?s notion during the DOMA oral arguments of two marriages: full marriage and ?skim-milk? marriage.

?In Ohio, we should be concerned about that. We are not California, we are not New York. We may never have equal marriage if we leave it up to the states to decide, one by one, that we are equal,? Marcus said.

She pointed out that it is often difficult to predict what a specific justice is thinking based solely on what they ask. Sometimes they are trying to make a point to their fellow justices, other times they are genuinely trying to understand an argument they have not quite wrapped their heads around. However, she sees a few very hopeful signs in some of the things said by two of the conservative justices.

?I was surprised by the way Justice [Samuel] Alito phrased a question. He?s not someone we expect to be friendly to LGBT issues and people, we expect he?s going to vote against us, but I believe he referred to same-sex couples as ?loving, committed couple,? ? Marcus noted. ?Even the other conservative justices recognize we?re human beings.?

?There were some wonderful surprises from [Anthony] Kennedy, and that?s more important. In the Prop. 8 hearing and the DOMA hearing, Kennedy emphasized how harmful they are to children of same-sex couples,? she said, noting that Kennedy is an important swing vote on the bench. ?He described the immediate harm to children of same-sex couples if the court does not rule against Prop. 8 and he repeated that in the DOMA hearing.?

?I think the LGBT community has cause to be quite hopeful about Kennedy remaining our ally as the fifth vote,? she concluded.

?I think there?s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more,? Kennedy said. ?On the other hand, there is an immediate legal injury or what could be a legal injury, and that?s the voice of these children. There are some 40,000 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??

Marcus pointed to a couple of Justice Sonia Sotomayor?s questions to Charles Cooper, the attorney defending Prop. 8 on behalf of the people who first put it on the ballot. They are, for lack of a better term, some of Sotomayor?s ?greatest hits.?

In the first, Sotomayor asks Cooper about standing in the case. Two governors and attorneys general of California have refused to defend Prop. 8 in court, and the backers of the ballot initiative moved to defend it. However, it was unclear whether they are able to do so.

?But can you tell me . . . how does it create an injury to them separate from that of every other taxpayer to have laws enforced?? Sotomayor asked.

Cooper said the injury was to the state, not the individual taxpayers, but Sotomayor said it was unlikely the state would delegate responsibility for defending the legislation to a group of people with no duty to the state, instead having a duty to their own views.

She later hit him with a ?rational basis? question when discussing the merits of the case.

?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 or imposing burdens on them?? she asked. ?Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision??

?Your Honor,? he replied, ?I cannot. I do not have anything to offer you in that regard.?

Justice Elena Kagan shot holes in the ?marriage is for procreation? argument used so often by marriage opponents. ?If you are over the age of 55, you don?t help us serve the government?s interest in regulating procreation through marriage,? she said. ?So why is this different??

Cooper pointed out that men are still fertile after the age of 55, to which Kagan replied, ?No, really, because if the couple--I can assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.?

Cooper then defended his position by saying that, since the man was likely still able to have children, it was marital requirements of fidelity that kept him from running rampant and procreating outside of wedlock.

Marcus is concerned about Chief Justice John Roberts? efforts to establish that the LGBT community has political power and does not require higher scrutiny in civil rights cases.

?There?s this underlying question about how much scrutiny to give to cases involving anti-gay discrimination, and Justice Roberts seemed obsessed with proving that the LGBT community has political power, and therefore the LGBT community should not get heightened scrutiny because we can defend ourselves politically,? she noted. ?[Edie Windsor?s attorney Roberta] Kaplan did a great job pointing out that we have been uniquely targeted state-by-state and had our rights taken away just because of who we are.?

?I think he knows that, on the merits, the government is hard-pressed to justify discrimination,? she says, noting that the only worse systematic denial of rights was faced by African-Americans.

?Roberts, in that conversation about just how much political power LGBT people have, he almost seemed to be complaining that politicians seem to be falling over themselves to support LGBT equality,? Marcus noted. ?A lot of senators are coming out in favor of same-sex marriage for the first time. The Supreme Court does pay attention to these things. I get the sense Roberts almost resents this, because they feel the pressure. Justice is supposed to be blind, but they know deep down when they?re doing the wrong thing.?

In summary, she anticipates a 5-4 or even 6-3 pro-gay ruling in each of the cases, although they will likely be narrow rulings.

?I think Roberts and [Antonin] Scalia are digging their heels in the most. Thomas will probably vote with them, but I think we actually saw a little sympathy from Alito, which was surprising, and he might even join Kennedy,? Marcus concluded.

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