Same-sex marriage cases wind their way to Supreme Court as political climate changes


Consider this bit of braggadocio about the advances of gay rights:

More than two-thirds of Americans say they would vote for their party’s “well-qualified gay candidate for president.”

The first openly gay male federal judge was just confirmed by an overwhelming majority in the Senate, and President Obama has nominated four other gay candidates for the bench.

California requires public school textbooks to include the historical contributions of lesbian, gay, bisexual and transgendered Americans; New York lawmakers defied the Catholic Conference to legalize same-sex marriage; Congress allowed homosexuals toserve openly in the military.

Gay rights groups “have gained more political ground in less time than just about any other interest group in American political history,” a document states.

It’s not a fund-raising appeal from the Human Rights Campaign. It is from the legal brief filed on behalf of the House of Representatives in support of the Defense of Marriage Act (DOMA), which withholds federal recognition of same-sex marriages performed in the states that allow them.

The point was that gays are not a politically powerless group singled out for discrimination and thus in need of heightened protection by the courts.

The DOMA case is part of the legal wrangling that has slowed what once looked like a relatively timely showdown in the Supreme Court over same-sex marriage.

Gay and Lesbian Advocates and Defenders(GLAD), the group that has spearheaded legal challenges to DOMA, does not foresee any decision by the justices until 2013.

And the celebrated effort to recognize a constitutional right to same-sex marriage — led by the political odd couple of Democratic stalwart David Boies and former George W. Bush solicitor general Theodore Olson — is caught in a tangle of judicial procedures.

(It has also literally spawned a sideshow: Last week, the American Foundation for Equal Rights, which is behind the lawsuit, staged a Broadway play based on the trial’s transcript; actor John Lithgow portrayed Olson.)

U.S. District Judge R. Vaughn Walker in August 2010 struck California’s 2008 voter-approved Proposition 8 — which amended the state constitution to limit marriage to a man and a woman — as violating the due process and equal protections of the U.S. Constitution.

The appeal is now bouncing back and forth between the California Supreme Court and the U.S. Court of Appeals for the 9th Circuit in San Francisco.

It’s anyone’s guess how long the legal appeals are going to take and which cases are likely to reach the Supreme Court first.

Some put their money on the DOMA cases, which would offer the court a sort of intermediate step to consider same-sex marriage.

U.S. District Judge Joseph Tauro in 2010 ruled unconstitutional the part of DOMA that defined marriage “as a legal union exclusively between one man and one woman.” That decision is on appeal to the U.S. Court of Appeals for the 1st Circuit.

And the Obama administration decided earlier this year it would no longer defend the law when couples in Connecticut, Vermont and New Hampshire filed suit.

The first openly gay male federal judge wasjust confirmed by an overwhelming majority in the Senate, and President Obama has nominated four other gay candidates for the bench.

California requires public school textbooks to include the historical contributions of lesbian, gay, bisexual and transgendered Americans; New York lawmakers defied the Catholic Conference to legalize same-sex marriage; Congress allowed homosexuals toserve openly in the military.

Gay rights groups “have gained more political ground in less time than just about any other interest group in American political history,” a document states.

It’s not a fund-raising appeal from the Human Rights Campaign. It is from the legal brief filed on behalf of the House of Representatives in support of the Defense of Marriage Act (DOMA), which withholds federal recognition of same-sex marriages performed in the states that allow them.

The point was that gays are not a politically powerless group singled out for discrimination and thus in need of heightened protection by the courts.

The DOMA case is part of the legal wrangling that has slowed what once looked like a relatively timely showdown in the Supreme Court over same-sex marriage.

Gay and Lesbian Advocates and Defenders(GLAD), the group that has spearheaded legal challenges to DOMA, does not foresee any decision by the justices until 2013.

And the celebrated effort to recognize a constitutional right to same-sex marriage — led by the political odd couple of Democratic stalwart David Boies and former George W. Bush solicitor general Theodore Olson — is caught in a tangle of judicial procedures.

(It has also literally spawned a sideshow: Last week, the American Foundation for Equal Rights, which is behind the lawsuit, staged a Broadway play based on the trial’s transcript; actor John Lithgow portrayed Olson.)

U.S. District Judge R. Vaughn Walker in August 2010 struck California’s 2008 voter-approved Proposition 8 — which amended the state constitution to limit marriage to a man and a woman — as violating the due process and equal protections of the U.S. Constitution.

The appeal is now bouncing back and forth between the California Supreme Court and the U.S. Court of Appeals for the 9th Circuit in San Francisco.

It’s anyone’s guess how long the legal appeals are going to take and which cases are likely to reach the Supreme Court first.

Some put their money on the DOMA cases, which would offer the court a sort of intermediate step to consider same-sex marriage.

U.S. District Judge Joseph Tauro in 2010 ruled unconstitutional the part of DOMA that defined marriage “as a legal union exclusively between one man and one woman.” That decision is on appeal to the U.S. Court of Appeals for the 1st Circuit.

And the Obama administration decided earlier this year it would no longer defend the law when couples in Connecticut, Vermont and New Hampshire filed suit.

Judge J. Harvie Wilkinson III, the well-regarded conservative on the U.S. Court of Appeals for the 4th Circuit, called the question “wrenchingly hard.” He noted the contributions of gay Americans and said it was striking that the movement’s aims in the courts is to “partake in the most traditional” of American rights: to serve in the military and to get married.

But he said the Constitution protects “not only individual liberty but democratic liberty.”

Legal challenges seeking same-sex marriage rights have led to what he said were regrettable decisions by states to amend their constitutions to forbid them.

He noted the rapidly changing political environment, and said there is no reason to believe gays could not achieve their goals politically, rather than by judicial fiat.

He was answered by Paul M. Smith, a celebrated Supreme Court practitioner who happens to be gay. The DOMA cases, he said, place “states’ right and gay rights on the same side.”

Striking the law would not require other states to sanction same-sex marriages, he said, but only require federal recognition of legal same-sex marriages performed in those states that allow it.

Courts are essential, Smith said. Brown v. Board of Education served as a catalyst for the civil rights movement; the 2004 decision of the Supreme Judicial Court of Massachusetts served the same function for the same-sex marriage movement.

Politics are changing, Smith agreed with Wilkinson. But that doesn’t mean gay Americans should wait, he said, or “stop asking for the Equal Protection Clause to be applied to you.”

BY: Robert Barnes/Washington Post

Published by CityFella

Big city fella, Born and Raised in the San Francisco Bay Area. Lived in New York (a part time New Yorker) for three years . I have lived in the Sacramento area since 1993. When I first moved here, I hated it. Initially found the city too conservative for my tastes. A great place to raise children however too few options for adults . The city has grown up, there is much to do here. The city suffers from low self esteem in my opinion, locals have few positive words to say about their hometown. visitors and transplants are amazed at what they find here. From, the grand old homes in Alkali Flats, and the huge trees in midtown, there are many surprises in Sacramento. Theater is alive is this area . And finally ,there is a nightlife... In.downtown midtown, for the young and not so young. My Criticism is with local government. There is a shortage of visionaries in city hall. Sacramento has long relied on the state, feds and real estate for revenue. Like many cities in America,Downtown Sacramento was the hub of activity in the area. as the population moved to the suburbs and retail followed. The city has spent millions to revive downtown. Today less than ten thousand people live downtown. No one at city hall could connect the dots. Population-Retail. Business says Sacramento is challenging and many corporations have chosen to set up operations outside the cities limits. There is vision in the burbs. Sacramento has bones, there are many good pieces here, leaders seem unable or unwilling to put those pieces together into. Rant aside, I love it here. From the trees to the rivers. But its the people here that move me. Sacramento is one of the most integrated cities in America. I find I'm welcome everywhere. The spices work in this city of nearly 500,000 and for the most part these spices blend well together. From Ukrainians to Hispanics and a sizable gay community, all the spices seem to work well here. I frequently travel and occasionally I will venture into a city with huge racial borders, where its unsafe to visit after certain hours. I haven't found it here. I cant imagine living in a community where there is one hue or one spice. I love the big trees, Temple Coffee House, the Alhambra Safeway, Zelda's Pizza, Bicyclist in Midtown, The Mother Lode Saloon, Crest Theater, and the Rivers. I could go on and I might. Sacramento is home.

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