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Windsor vs. United States
October 18, 2012 6:30 PM   Subscribe

Today, the Court of Appeals for the 2nd Circuit ruled that "we conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional" [PDF of decision]. Plaintiff Edie Windsor has also petitioned the US Supreme Court to hear her case.

Windsor's case was represented by the American Civil Liberties Union, the New York Civil Liberties Union, and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP. The ACLU has collected all legal filings and ongoing coverage of the case here.
posted by catlet (51 comments total) 20 users marked this as a favorite

 
Methinks there will be some aftershocks to this decision.
posted by Rafaelloello at 6:35 PM on October 18, 2012


Boy will I be glad when we get to stick the last knife in that motherfucker.
posted by Egg Shen at 6:38 PM on October 18, 2012 [33 favorites]


Can someone who knows how it works explain her petition to SCOTUS? I gather she did it before this ruling, but hasn't she won at every level? What was she appealing, to even have standing?
posted by Lemurrhea at 6:39 PM on October 18, 2012


I predict Romney will be all over this tomorrow - promising to defend marriage from whatever it is that these people think is threatening it. It's the perfect scare tactic to make sure conservatives vote.
posted by COD at 6:40 PM on October 18, 2012


So this now makes eight Federal Courts which have found DOMA section 3 to be unconstitutional, two of those circuit courts. Five of those cases are awaiting review by the SCOTUS.

This is all going to be very interesting as it moves forward.
posted by hippybear at 6:50 PM on October 18, 2012 [3 favorites]


Bout fucking time.
posted by thsmchnekllsfascists at 6:51 PM on October 18, 2012 [1 favorite]


One more brick removed from the wall. Thank deity.
posted by arcticseal at 6:58 PM on October 18, 2012


One extremely important facet of this decision is that it marks the first time a federal appeals court has applied heightened scrutiny to a law discriminating on the basis of sexual orientation.
posted by sallybrown at 6:59 PM on October 18, 2012 [15 favorites]


They used heightened scrutiny and it TASTES GREAT!
posted by prefpara at 6:59 PM on October 18, 2012 [7 favorites]


Jinx let's spin in circles until we fall down! Ha ha ha heightened! Heightened like my state of bliss!
posted by prefpara at 7:00 PM on October 18, 2012 [7 favorites]


HuRRAh. Too bad SCOTUS is a very scary place where justice goes to die.
posted by murfed13 at 7:03 PM on October 18, 2012 [4 favorites]


But how are we going to protect marriage from eighty year old lesbians now?
posted by octothorpe at 7:09 PM on October 18, 2012 [6 favorites]


sallybrown: "One extremely important facet of this decision is that it marks the first time a federal appeals court has applied heightened scrutiny to a law discriminating on the basis of sexual orientation."

Can you expand on this a little? Didn't the Ninth Circuit hear a case on this, as hippybear mentioned above? I guess there might not have been much scrutiny there.
posted by koeselitz at 7:12 PM on October 18, 2012


(Actually I think I'm a bit confused on what happened in the Ninth Circuit decision a few months ago, and if anybody can set me straight I'd appreciate it.)
posted by koeselitz at 7:20 PM on October 18, 2012


The Ninth Circuit case was about California's Proposition 8, and not about DOMA.
posted by hippybear at 7:20 PM on October 18, 2012 [1 favorite]


Too bad SCOTUS is a very scary place where justice goes to die.

I predict not on this topic. (And I like to think that's untrue in general also, but I can see that SCOTUS doubters have a point.) Kennedy has skin in the game here--he wrote the Lawrence v. Texas opinion and is rumored to have an inflated enough ego that he will be tempted to continue making his mark on history in this area. This plus the obvious correctness of the argument, societal pressure for acceptance of gay marriage, and the increasing number of states approving gay marriage will hopefully make for a winning combination.

I can't wait for Scalia to try and talk his way out of the trap he set for himself in his Lawrence dissent:
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
posted by sallybrown at 7:20 PM on October 18, 2012 [18 favorites]


Can someone who knows how it works explain her petition to SCOTUS? I gather she did it before this ruling, but hasn't she won at every level? What was she appealing, to even have standing?

It's relatively rare (and now moot because the 2nd Circuit has made its decision), but any party can ask for it, even the party who won in the District Court. You can read the cert petition for the details of the argument, but the legal basis is that 28 USC § 1254(1) allows for "any party" to a case "in the courts of appeals" to petition for certiorari. See also 28 USC § 2101(e), which says that "An application to the Supreme Court for a writ of certiorari to review a case before judgment has been rendered in the court of appeals may be made at any time before judgment."

Taking a case before the appeal is finished (or at all) is entirely within the Court's discretion, so the argument in the petition is that it's an issue of national importance with great variation among the circuits, and should be taken up immediately. They also note that there was an automatic stay of the District Court's judgment, so Windsor doesn't get her $363,000 until the litigation is final, and she's 83 with a heart condition.
posted by Partial Law at 7:22 PM on October 18, 2012 [1 favorite]


The First Circuit, like the Second, found DOMA unconstitutional, but it did so under rational basis review (the easiest hurdle for a law to overcome). There may be a federal appeals court decision that applied something higher than rational basis review but refused to label it heightened scrutiny or sort of elided what it was doing.
posted by sallybrown at 7:29 PM on October 18, 2012


The Ninth Circuit case was about California's Proposition 8, and not about DOMA.

I believe the Ninth Circuit (and the district court ruling) said Prop 8 failed the rational basis test. The district court ruling laid out a case for strict(er?) scrutiny but said "It's such crap I don't have to make a decision on that because it fails rational basis."
posted by hoyland at 7:31 PM on October 18, 2012


Can you expand on this a little?

The important thing in sallybrown's comment is that "heightened scrutiny," aka "intermediate scrutiny" is a term of art with specific legal meaning under the equal protection clause, and has historically been reserved for cases with discriminatory effects based on gender and, oddly, legitimacy (as in whether or not one's parents were married).

When the First Circuit recently ruled that DOMA Section 3 is unconstitutional, it did it under the less strict "rational basis" standard, in which a law is only struck down if there is no rational basis for its existence.
posted by Partial Law at 7:31 PM on October 18, 2012 [1 favorite]


The level of scrutiny applied to a law is like playing limbo. Rational basis is like at the beginning, where pretty much any law gets through (cases striking down laws under rational basis review often signal that a certain categorization is headed for a higher level of scrutiny but courts aren't willing to flat out state that yet). Things get murkier with intermediate scrutiny; courts are tougher about forcing those who passed the law to justify why they did so. With strict scrutiny, it's rare for the law to survive.
posted by sallybrown at 7:36 PM on October 18, 2012 [2 favorites]


Can you expand on this a little? Didn't the Ninth Circuit hear a case on this, as hippybear mentioned above? I guess there might not have been much scrutiny there.

The court decides what kind of scrutiny is needed to justify various laws. Rational basis is the lowest, and default level of scrutiny. If the court can conceive of any legitimate interest that could possibly be served, then the law will stand. The 9th circuit found that Prop 8 didn't pass that test.

Intermediate and Strict scrutiny are used when the law in question deals with a minority group thought not to be well protected by the democratic nature of our government. With strict scrutiny, the government needs not just any old reason, but a compelling reason which this law is specially and narrowly tailored to serve, and it has to be the least restrictive law that could possibly serve that goal. Strict scrutiny is reserved for suspect classes.

To be a suspect class "The class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics," be a minority of "politically powerless," and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society."

Sexual orientation has not been classified as a suspect class so far. So all laws have had to face rational basis testing, which is mighty hard to beat, and would have to be overcome in every single case, not just marriage, but employment law, and other hurdles.
posted by Garm at 7:40 PM on October 18, 2012 [3 favorites]


Sexual orientation has not been classified as a suspect class so far.

True, but Judge Walker did a lot of work to lay the basis for exactly that. He just didn't want to lay that groundwork and then rule based on it. His findings of fact will likely be referred to from here on out, and others can apply them even if he did not for his Prop 8 ruling.
posted by hippybear at 7:48 PM on October 18, 2012 [2 favorites]


On the one hand, the decision makes me happy. On the other, the case that is the cause of this decision breaks my heart. How is it just, what has been done to her? How does that protect marriage?
posted by rtha at 7:49 PM on October 18, 2012 [1 favorite]


i am going to celebrate by heightening scrutiny upon some lovely ladies this weekend

yes ladies

prepare to be scrutinized
posted by elizardbits at 7:50 PM on October 18, 2012 [25 favorites]


The part of me that is a man of conscience with respect for human dignity approves of this. The part of me that is also a tax preparer approves even more.
posted by BrotherCaine at 7:54 PM on October 18, 2012 [2 favorites]


Soooo... essentially then we are seeing courts rule against DOMA from a range of positions? From rational to heightened and even applying suspect class.

Just a ignorant opinion here, but it seems such a broad refutation would make it harder for the SC to uphold the law. I realize they can essentially do whatever the fuck they want, but if courts are consistently ruling against it and doing so not on a narrow basis that any Justice with any pretense of caring what has gone before would have to tie themselves in a pretzel to find a way to uphold it. (Not that they wouldn't but....)
posted by edgeways at 7:59 PM on October 18, 2012


On a distantly related note, Judge Jacobs is one of the best writers on the bench. I had the privilege of meeting him at a social event a few years ago where he very graciously spent about an hour and a half talking with a peon in the legal world (me) and several other people about a variety of topics, and it turns out that his intelligence and wit are not confined to the written page.
posted by Inspector.Gadget at 8:09 PM on October 18, 2012


I'll take my good news where I can get it these days. This is the latest in a long line of indications that things are moving in the right direction on this issue, which is fantastic.

I don't know if it made an FPP or not, but today I saw the news that more than half of US Latinos now support gay marriage. I'm sure there will be setbacks, but overall I'm seeing a clear trend towards equality.
posted by Forktine at 8:10 PM on October 18, 2012 [1 favorite]


The MN SSM ban on the ballot this year is deadlocked at 47% for and 46% against, that leaves 7% undecided. The ballot must actively get 50% of the votes, so a non vote counts as a no vote, that may be worth a point or two which may be the difference. *crosses fingers*
posted by edgeways at 8:13 PM on October 18, 2012 [1 favorite]


Can someone who knows how it works explain her petition to SCOTUS? I gather she did it before this ruling, but hasn't she won at every level? What was she appealing, to even have standing?

The standing has been explained above, but I know that Scalia has said that the court didn't want to get into this unless there was a circuit court split. This isn't that, exactly, but there exists enough difference in the rulings (1st Circuit granted rational basis, which gives no special treatment towards discrimination against LGBT people, but says that DOMA doesn't pass even the easiest standard of review, while 2nd Circuit applied heightened scrutiny, which is tougher for laws to succeed on but affords LGBT people greater precedential protection) that there is cause for SCOTUS to determine which is which in order to preserve equal protection.
posted by Navelgazer at 8:27 PM on October 18, 2012 [2 favorites]


The ballot must actively get 50% of the votes, so a non vote counts as a no vote, that may be worth a point or two which may be the difference. *crosses fingers*

I just went and looked. It seems like past constitutional amendments have about a 4% abstention rate. The problem is that historically, polling on marriage hasn't been very reliable and it tends to be unreliable in a bad way, from our perspective.
posted by hoyland at 8:29 PM on October 18, 2012


I can't wait for Scalia to try and talk his way out of the trap he set for himself in his Lawrence dissent

You talk as if he wouldn't just phone in some completely unjustifiable bullshit and order another Maine lobster.
posted by clarknova at 8:48 PM on October 18, 2012 [4 favorites]


I was vaguely aware of the unreliability of respondents to these polls, I suspect the poll itself is as accurate as can be as all recent polls on the question fall pretty much in line, with the numbers only shifting by a point or two. As to the truth-telling of the pollees it can only be seen in retrospective.

I didn't know that the abstention rate was quite that high, which if that holds through I guess means that ~54% of everyone actually casting a vote has to vote for the Amendment. That's.... pretty high, especially as MN tends to have a very high turn out rate.

I suppose the real take-away is that no one can accurate predict the outcome.

The potential bright spots are that the Amendment does not seem to be polling at 50%+, the trend line for support has done nothing but tick down since they started polling about it, and there (historically) seems to be about ~4% built in no votes in the form of non voting for it.

The negatives are, historically they is some margin of disingenuous pollees, and no one really knows how many people will non vote.

With the general population tied the final analysis will be will disingenuous poll takers outweigh non voters by a wide enough margin.
posted by edgeways at 8:49 PM on October 18, 2012


Boy will I be glad when we get to stick the last knife in that motherfucker.

Let's hope that the final decision isn't made by a Supreme Court that has had two new members appointed by a Mormon bishop.
posted by yoink at 8:51 PM on October 18, 2012 [7 favorites]


BrotherCaine, if you market yourself to the 18k gay-married couples in California who file as married in state taxes but have to file as single in federal, you will do well. And I see you're in CoCo - we may shout for help come tax time!
posted by rtha at 9:02 PM on October 18, 2012


I can't wait for Scalia to try and talk his way out of the trap he set for himself in his Lawrence dissent:

Sorry, but he can easily talk his way out of it by saying his interpretation of the Constitution trumps stare decisis.
posted by John Cohen at 9:05 PM on October 18, 2012 [1 favorite]


sallybrown: "I can't wait for Scalia to try and talk his way out of the trap he set for himself in his Lawrence dissent:"

Though sarcasm is hardly an appropriate tone for a SC decision, Scalia uses it all the time. In this case, he finds the idea of same-sex marriage so absurd that surely the potential that the Lawrence decision might lead to it is reason enough to reject it. And, yes, Scalia still thinks that "homosexual sodomy" should be illegal, and that such an opinion is self-evidently true. But he's creeping ever closer to outright admitting this isn't about laws or rights or even about sex:
Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
At this point, this isn't just about Scalia being outmoded, or out of touch, or living in the 18th century, or hanging on to a judicial philosophy that's not expeditious. Scalia's building a faux-judicial philosophy to retroactively justify hating gay people.
posted by Apropos of Something at 9:49 PM on October 18, 2012 [6 favorites]


Antonin Scalia: Death Penalty, Abortion, 'Homosexual Sodomy' Are Easy Cases

Ah, or what Apropos of Something just said much better.

Previously: The Incoherence of Antonin Scalia.
posted by homunculus at 9:54 PM on October 18, 2012


So the appeals court made law on a question that I don’t think was before it, and created a new class of persons entitled to special protection. I don't think that should rankle any feathers.
posted by Rafaelloello at 10:20 PM on October 18, 2012


I think it litmus test is, at then end of the day, are your legal opinions more affected by BELIEF ( Religion ) or FACT (Science).

Mormons don't have the best reputation for sticking to the facts.
posted by mikelieman at 2:12 AM on October 19, 2012


Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

By this logic, would Scalia have ruled against rockers or hippies getting married in the 60s? Absurd.
posted by ersatz at 5:17 AM on October 19, 2012


Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

Replace "persons who openly engage in homosexual conduct" with "persons who openly engage in miscegenation", dial the wayback machine to the 1960s, and see if you can't figure out how, by that logic, Scalia would have ruled in Loving v. Virginia.

Confidential to Justice Scalia: there is no "unless people think it's icky" exception to the Equal Protection Clause. That's kind of the point.
posted by jedicus at 6:41 AM on October 19, 2012 [5 favorites]


I keep reminding myself that the dude is almost 80 years old, how much longer can he hang in there, COME ON HEART DISEASE. But monsters like him live forever.
posted by elizardbits at 7:03 AM on October 19, 2012


So the appeals court made law on a question that I don’t think was before it, and created a new class of persons entitled to special protection. I don't think that should rankle any feathers.

Clearly it's rankled your feathers.

Not being discriminated against is special protection?
posted by ndfine at 7:08 AM on October 19, 2012


today I saw the news that more than half of US Latinos now support
Can someone explain this logic to me? At what point in time do we allow certain people to be denigrated just because X% of a people think that's it's okay?

Whatever happened to Majority Rule, Minority Right?
posted by Blue_Villain at 8:10 AM on October 19, 2012


Previously: The Incoherence of Antonin Scalia.

Thomas is just as incoherent, but he never speaks so no one hears it.
posted by clarknova at 8:50 AM on October 19, 2012 [1 favorite]


Can someone explain this logic to me? At what point in time do we allow certain people to be denigrated just because X% of a people think that's it's okay?

There's a growing body of law that courts can/should consider a change in popular support for a law or practice when evaluating it. The foremost example I can think of is Atkins v. Virginia, in which the court held that the death penalty should not be applied to the mentally retarded because "standards of decency" (as illustrated by the actions of state legislatures) had evolved such that most people no longer found the execution of mentally retarded people acceptable. For some judges the use of popular support as a consideration should be limited to the Eighth Amendment (i.e. when trying to figure out what constitutes "cruel and unusual punishment"). Consideration of popular support for a practice is connected to the "living constitution" approach (which is anathema to strict originalists like Justice Thomas).

If you really want to piss off Scalia, consider global (as opposed to just national) changes in popular support for a law or practice -- I believe Kennedy has done this in the past, and it sends Scalia into fits of rage.
posted by sallybrown at 8:53 AM on October 19, 2012 [3 favorites]


Every time Kennedy sends him into fit of rage by considering global standards of decency we should pitch in for a fruit basket.
posted by clarknova at 8:57 AM on October 19, 2012 [7 favorites]


consideration should be limited to the Eighth Amendment
If I'm reading that right... they're turning an interpretation of the 'acceptable punishment' rule (which is intrinsically criminal law) into a consideration when debating the validity of social contracts (or civil law). That seems... off kilter... somehow.

There's a joke in there where one can systematically link capital punishment to getting married. But it's Friday and I just don't have the energy for it right now.

But seriously, thanks for putting that into context.
posted by Blue_Villain at 1:07 PM on October 19, 2012


Blue_Villain: Can someone explain this logic to me? At what point in time do we allow certain people to be denigrated just because X% of a people think that's it's okay?

sallybrown: There's a growing body of law that courts can/should consider a change in popular support for a law or practice when evaluating it. The foremost example I can think of is Atkins v. Virginia, in which the court held that the death penalty should not be applied to the mentally retarded because "standards of decency" (as illustrated by the actions of state legislatures) had evolved such that most people no longer found the execution of mentally retarded people acceptable. For some judges the use of popular support as a consideration should be limited to the Eighth Amendment (i.e. when trying to figure out what constitutes "cruel and unusual punishment"). Consideration of popular support for a practice is connected to the "living constitution" approach (which is anathema to strict originalists like Justice Thomas).

If you really want to piss off Scalia, consider global (as opposed to just national) changes in popular support for a law or practice -- I believe Kennedy has done this in the past, and it sends Scalia into fits of rage.


For a bit more context: it's worth noting that outside of the US, the idea of looking at something akin to popular support is done more often, at least in the common-law countries + European human rights. In Canada, the constitutional test for for most things includes a question of whether the government can legitimately infringe on rights. So to use the standard US test: instead of saying that shouting fire in a crowded theatre is inherently not something that free speech protects, we would say that the ban on this speech is a violation of one's rights. But it's justified, which has a test.

That test uses the phrasing "justified in a democratic and free society". Similar phrasing is used in Europe and South Africa (and likely elsewhere). How do we know what's justified in a democratic and free society? Well one way is to look at democratic and free societies and see what they do, viewed through the lens of different countries requiring different responses. Although that's not in the US constitution, it's hard to get around.

And, similarly, the court doesn't want to get too far afield of the public opinion, if only for pragmatic reasons - they absolutely need the legislators to be willing to go along with it (to make regulations and all that), and the same with the executive (to enforce it). They don't need agreement but acquiescence. So they'll look at public opinion.

And yeah, Kennedy looked globally in the case of capital punishment for minors, I think. Or maybe imprisonment without parole for them. Something with minors.
posted by Lemurrhea at 2:14 PM on October 19, 2012


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