The Volokh Conspiracy

So we’ve established that in a world without DOMA, state law is the natural place to look to figure out whether a same-sex couple is married. Here is where we meet our first conflict-of-laws problem.

You surely know that some states allow same-sex couples to marry, and others do not. So what happens when a couple lives in a no-same-sex-marriage state, but gets married out of state? Or lives and marries in a same-sex-marriage state, but then moves to a no-same-sex-marriage state? Well, it depends.

In Maryland (or Rhode Island, or New Mexico), the couple will still be treated as married, even though they couldn’t have gotten married in that state. In many other states, they won’t be. Texas is an extreme example: a same-sex couple moved there from Massachusetts and wasn’t even given access to divorce court, because Texas figured they were never married in the first place.

And in other states, the answer is still up in the air. Remember the controversy about District Judge Vaughn Walker’s same-sex relationship, and possible marriage plans? Steven Gillers suggested that if Walker had any interest in getting married, he could just travel to Iowa or another same-sex-marriage state. Ed Whelan’s response was that such a marriage should not be recognized in California. But the strange thing is that California law isn’t really clear on this point, so even after looking into it, I don’t know for sure how the California courts would apply Prop 8 to an out-of-state same-sex marriage.

Now, in a sense, this is not a new problem for the states. People have been getting married and moving around for a very long time. But there’s never been widespread agreement about the solution to that problem. Most of the time states defer to the state where the marriage was “celebrated,” but sometimes they don’t.

So when you ask whether a same-sex couple is married under state law, the answer depends on which state you ask.

A number of commenters have asked about the relationship between law and marriage. Some, for example, have taken issue with the statement in my paper’s abstract that “marriage is primarily a creature of state law.” So I thought it was worth explaining a little but more about the relationship between state law and marriage.

Obviously, marriage is partly a private, non-governmental act. You can “marry” in the eyes of your religion or your community without ever marrying in the eyes of your state. Or you can have two separate marriage ceremonies — one religious and another one designed to satisfy the state’s requirements — which is what I did when I got married. In that sense, marriage is not just something the government makes up.

But the government also has a lot of rules which depend on whether or not you are married — being married affects your taxes, your health benefits as a federal employee, rights under an ERISA plan, child custody, your right not to testify, and so on. So even if you think the private, non-governmental part of marriage is more important than the government-recognized ceremony, the government still needs a way to figure out who is married and who isn’t. It generally uses state marriage ceremonies (or common-law marriage, now mostly of historical interest) to do so. Of course, you could also try to get rid of all laws that treat married couples differently from unmarried couples, but I no longer think that’s wise, and it’s certainly not going to happen any time soon.

So when I say that “marriage is primarily a creature of state law,” I really mean: “when the law deals with marriage, it’s mostly state law, not federal law, that determines marital validity.” You get a marriage license from the state where you’re getting married, not the federal government, and the state determines who can officiate, how old you have to be, whether you have adequately terminated any previous marriages you had, and so on. In that sense marital status is somewhat like property: federal law frequently turns on whether you have it, but it often uses state law to figure that out.

Finally, for purposes of this paper it doesn’t actually matter whether the federal government has the constitutional power choose to create its own independent marriage regime — with its own federal officiants, federal marriage licenses, etc. The main point is that it hasn’t created one. But I’ll also add that I think it would be impractical and unwise for the federal government to try to create such an independent marriage regime.

Thanks to Eugene and the conspiracy for having me here. In my first post I thought I’d explain what the Defense of Marriage Act does and the circumstances under which it may be held unconstitutional. We can get into the choice-of-law stuff later. (The act, by the way, is known as “DOMA,” which gives rise to lots of great puns, from Andrew Koppelman’s Dumb and DOMA, to the title a colleague suggested for my paper: Beyond ThunderDOMA.)

Section Three of DOMA defines marriage for purposes of the thousand-some federal statutes that deal with marriage. It says that for purposes of federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” This is an exception to the usual federal practice, which is to look at state law to decide whether a couple is married. (Another part of the statute deals with states’ refusing to give “full faith and credit” to marriages from other states, but for present purposes, it is mostly unimportant.)

DOMA has become very controversial. A number of trial courts (and at least one appellate judge, acting in his administrative capacity) have held it unconstitutional. Last February, the Obama Administration joined in, and began arguing to the courts that it is unconstitutional.

On what basis? Here is where it gets interesting. The courts and the challengers have not really argued that states must recognize same-sex marriages (as the district court in Perry v. Schwarzenegger held). Instead, they’ve argued that even if states can make their own decision about same-sex marriage, the federal government is constitutionally required to respect the state’s choice.

Doctrinally, these challenges turn on levels of scrutiny and government interests, but the closest analogy might actually be the Supreme Court’s confusing opinion in Romer v. Evans. In Romer, the Court struck down a state constitutional amendment that repealed local and state laws that protected against sexual-orientation discrimination, and thereby “impose[d] a special disability upon [gay people] alone.” In almost every other respect, the federal government looks to state law to decide whether a couple is married — age, consanguinity, officiant, previous divorce, etc. — except for same-sex marriages, on which, “alone,” DOMA “imposes a special disability.”

Anyway, you may or may not buy that constitutional argument, but a lot of courts are buying it and the President is selling it. And if that argument wins out, federal law will have to rely on state law to determine whether a same-sex couple is married. (The same thing happens if DOMA is repealed.) But relying on state law, it turns out, is much more complicated than it seems. (That’s where the choice-of-law stuff comes in. We’ll get to it today or tomorrow.)

I’m delighted to report that Wiliiam Baude will be guest-blogging for us this coming week. Will is a fellow at the Stanford Law School Constitutional Law Center, a former clerk for then-Judge Michael McConnell on the Tenth Circuit and then for Chief Justice John Roberts, the author of Signing Unconstitutional Laws, 86 Indiana Law Journal 303 (2011), and The Judgment Power, 96 Georgetown Law Journal 1807 (2008), and a law blogger of many years’ standing; this week, he’ll be posting about his new article, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stanford Law Review (forthcoming 2012). Here is the abstract of the article:

The Defense of Marriage Act has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place. Federal law frequently asks whether a couple is married. But marriage is primarily a creature of state law, and states differ as to who may marry. The federal government has no system for deciding what state’s law governs a marriage, though more than a thousand legal provisions look to marital status, more than a hundred thousand same-sex couples report being married, and many of those marriages ultimately cross state lines. Unless a federal choice of law system is designed, DOMA’s demise will lead to chaos.

This paper argues that such a system can and should be designed: Because the underlying choice-of-law problem is ultimately a problem of statutory interpretation, Congress can and should replace it with a clear choice-of-law rule. Failing that, federal courts can and should develop a common law rule of their own – they are not (and should not be) bound by the Supreme Court’s decision in Klaxon v. Stentor Electric. The paper further argues that different institutions should solve the problem differently: If Congress acts, it should recognize all marriages that were valid in the state where they took place. If, instead, the courts create a common-law rule, they should recognize all marriages that are valid in the couple’s domicile.

The implications of this argument run far beyond the demise of DOMA. In all areas of what is here called “interstitial law,” federal interpretive institutions can and should devise a set of choice-of-law rules for federal law that draws upon state law, and what set of rules is proper may well depend on who adopts them.

I much look forward to Will’s posts!

The California Supreme Court has just decided that the official proponents of an enacted initiative — the group that got it onto the ballot — may, under California law, assert the state’s interest in defending the initiative when state officials refuse to do so. This means, given the Ninth Circuit earlier analysis of the matter, that the proponents of Prop. 8 have the legally required “standing” to appeal the trial court’s decision holding Prop. 8 unconstitutional. And that in turn means that the Ninth Circuit (and likely eventually the Supreme Court) can consider whether Prop. 8 is indeed constitutional.

UPDATE: Some commenters asked why state law should be relevant to the federal law question of whether someone has standing to appeal a federal district court decision in federal court. Here’s one way of thinking about this, which I think is consistent with the California Supreme Court’s decision:

It’s clear that when a state loses a case at trial, the state may choose to appeal or not to appeal. But who gets to represent the state in making that decision? We’re used to the notion that the “Executive Branch” makes that decision, since that’s the standard federal answer. But of course in many states, including California, there are several separately elected officeholders. Is it the Governor who gets to speak for the state? The Attorney General? The head of an independent state agency, if the state agency made the decision that is being challenged? Someone else? That question of who gets to represent the state in federal court is a matter of state law, and uncontroversially so.

This case is just an application of that principle, though a less familiar one: State law isn’t limited to saying that the Governor gets to represent the state in federal court or that the Attorney General gets to represent the state in federal court. Rather, state law could also say that someone else gets to represent the state (which, after all, is not just the Executive Branch of the state government, but an entity in which the primary sovereign is the people). In particular, state law could say that the proponents of an initiative are the representatives of the state in cases where the executive branch officials decline to defend the initiative. And that state-law decision about who speaks for the state will be applied by federal courts, just as the state-law Governor-vs.-the-Attorney-General decision will be applied by federal courts.

This time we were debating a proposed amendment to the Minnesota state constitution banning same-sex marriages, although the focus was on the merits of same-sex marriage itself.  The debate was held at the University of St. Thomas Law School in Minneapolis and was hosted by the Terence J. Murphy Institute for Catholic Thought, Law and Public Policy.  You can view the video here.

Yesterday, in Doe v. Reed, Federal District Judge Benjamin Settle rejected an as-applied challenge on First Amendment grounds to a Washington state law requiring the public disclosure of the names of initiative signers.  The initiative in question would have blocked the legislatively approved recognition of domestic partnerships. (The initiative made it onto the state ballot but lost, the first time voters in a statewide ballot contest supported same-sex partnerships.) A year ago, the Supreme Court rejected, 8-1 (Thomas dissenting), a facial challenge to the same law. 

Judge Settle reviewed the evidence gathered over two-plus years supporting the argument that petition signers had been subjected to threats and harassment. The claims followed a theme developed by anti-SSM activists nationwide. Highlighting such incidents has been part of the ongoing effort to find some “harm” caused by the SSM movement. The evidence in Washington state comprised allegations by initiative supporters, including:

*one supporter received an angry text message from his brother; was “mooned” by someone in a passing car; and was “flipped off” by some people in passing cars;

*one preacher was told by someone that his church would be picketed in an “appropriate” way, although no picket occurred;

*while collecting initiative signatures in a public place, one was glared at by two women who told him, “we have feelings too”;

*several had their pictures taken while in public places;

*some were sent notes containing vulgar language;

*one claimed a death threat was made on a website, but could not identify any such threat on the site, and withdrew the claim.

Other claims involved “bothersome” phone calls, and name-calling using words like “homophobe” and “fascist.” A couple of claims involved alleged physical threats, which were reported to police. There were, however, apparently no prosecutions, much less convictions, for actual threats. There was no actual physical violence. Most of the alleged incidents could not be tied to the initiative, since they were not directed at mere petition signers but to leaders and spokespersons opposed to gay rights over several years.

In Washington, the evidence of intimidation and harassment was unimpressive. The plaintiffs’ attorneys had access to the names and addresses of all those who signed the petition, and all those who contributed funds to the drive, but produced no evidence beyond that pertaining to a few very high-profile individuals. This omission was itself significant, since it suggested the incidents, such as they were, and disputed as they were, were very episodic and isolated. It hardly amounted to a campaign of intimidation by gay-marriage supporters. The court concluded that “the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by [petition] signers cannot be characterized as ‘serious and widespread.’”

Of course, as the district court noted, it is troubling any time a person is threatened with physical violence. Those cases can, and should, be prosecuted, and there is nothing in the First Amendment that prohibits such prosecution. But in Washington state, at least, there appears to have been little or no evidence of such threats. The rest of the evidence suggested only that some of the people who were about to have any recognition and legal protection of their relationships stripped away had strong feelings about that; that some of them confronted those who were sponsoring such efforts against their families in a public setting where signatures were being gathered; that some of that hostility was expressed strongly, and was experienced as hostile and unwelcome by those who were confronted; and that on a few occasions — out of countless public discussions of the issue – the feelings of gay-marriage supporters were indeed stated in an overbearing (though not illegal) way.

The law protects us from violence and threats of violence. But it does not protect us from criticism, even harsh criticism, when we take public positions on public matters. It does not protect us from having our feelings hurt or from having others think poorly of us. The point goes beyond the narrow First Amendment claim, however, and touches on a larger cultural and democratic interest in wide-open, robust, and sometimes even impolite debate. Justice Scalia said it best in a concurring opinion at an earlier stage of this very litigation:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

This week I’ll be discussing same-sex marriage at two different student chapters of the Federalist Society. One is today at noon at the University of Missouri-Kansas City School of Law. Tomorrow is at 12:30 at the University of Kansas School of Law in Lawrence. In both places, my sparring partner will be Dale Schowengerdt of the Alliance Defense Fund.  The events are open to the public.

That’s how the North Carolina state senator who’s sponsoring the anti-SSM amendment began his speech today. Others are citing “statistics” that show a married mother and father provide the best structure for raising children — though the studies compare opposite-sex couples to single parents, not gay parents. You can watch the debate live here.

UPDATE: The amendment passed the state senate, 30-16.

That’s what Diaz v. Brewer looks like to me, though the case approaches the question indirectly. Here’s a brief summary:

1. Arizona used to provide health-care benefits for spouses of state employees (as well as dependent children, but that’s not relevant here). In April 2008 an administrative regulation expanded this to include domestic partners, both opposite-sex and same-sex. But in September 2009, the state Legislature enacted a statute that limited such benefits to spouses plus dependent children, and thus excluded domestic partners.

2. Gay and lesbian employees sued, claiming this violated the Equal Protection Clause. A district court agreed, and issued a preliminary injunction barring enforcement of the new statute. “While the district court noted that Section O was not discriminatory on its face, because it affected both same-sex and different-sex couples, the court held that Section O had a discriminatory effect. This is because, under Arizona law, different-sex couples could retain their health coverage by marrying, but same-sex couples could not.”

3. The Ninth Circuit affirmed, concluding that the law violated the Equal Protection Clause, because it isn’t rationally related to a legitimate government interest (the so-called “rational basis” test). The court did not simply say, as it might have when reviewing a preliminary injunction, that the plaintiffs had merely shown a likelihood of success on the merits:

[T]he district court correctly recognized that barring the state of Arizona from discriminating against same-sex couples in its distribution of employee health benefits does not constitute the recognition of a new constitutional right to such benefits. Rather, it is consistent with long standing equal protection jurisprudence holding that “some objectives, such as ‘a bare … desire to harm a politically unpopular group,’ are not legitimate state interests.” Moreover, the district court properly rejected the state’s claimed legislative justification because the record established that the statute was not rationally related to furthering such interests.

So the logic is that limiting benefits to spouses is unconstitutional, because it in effect constitutes discrimination against same-sex couples, because (as the Ninth Circuit earleir stated) “same-sex couples in Arizona are prevented [from marrying] by operation of law.” And the Circuit said that “the district court properly concluded that the denial of benefits to same-sex domestic partners cannot promote marriage, since such partners are ineligible to marry.”

It’s possible to distinguish laws limiting marriage to opposite-sex couples from laws limiting benefits to opposite-sex married couples; perhaps the Circuit would eventually conclude that there is a sufficiently rational basis for so limiting marriage, even though it has concluded that there is no such basis for so limiting benefits. But it seems to me that the similarities of the cases are likely to be more influential to future panels than the differences.

I thus expect that the Diaz decision to play an important role in any future Ninth Circuit decision on Proposition 8, at least unless either Diaz or the Proposition 8 case goes en banc, or the U.S. Supreme Court agrees to hear the Diaz case, which is unlikely but possible. (I assume here that the California Supreme Court instructs the Ninth Circuit that the intervenors in the Ninth Circuit case have standing, so that the Ninth Circuit case won’t be thrown out on procedural grounds.) Thanks to How Appealing for the pointer.

UPDATE: Ed Whelan (National Review Online) criticizes the ruling.

[UPDATE: The teacher has now been reinstated.]

CNN reports:

A former “teacher of the year” in Lake County, Florida, has been reassigned while school administrators investigate comments posted on his Facebook page about same-sex marriage…. [S]chool officials received a complaint Tuesday about the content on Mount Dora High School teacher Jerry Buell’s personal Facebook page …. CNN affiliate Central Florida News 13 reported that a status post on it said, “I’m watching the news, eating dinner, when the story about the New York okaying same sex unions came on and I almost threw up.”

“We began to review the code of ethics violations immediately and yesterday afternoon temporarily reassigned the teacher pending the outcome of the investigation,” [Lake County Schools Communications Officer Chris Patton] told CNN Thursday….

The newspaper said that in the same July 25 post, Buell said same-sex marriages were part of a “cesspool” and were a “sin.” …

Buell, a teacher for more than 26 years [and a former “teacher of the year”], served as the Social Studies Department chair at Mount Dora and taught American history and government, according to the high school’s website….

This week and next, SCOTUSblog is hosting an online symposium on various aspects of the litigation challenging California’s Proposition 8 and the Defense of Marriage Act.  The expected contributors are well-known combatants in the ongoing national debate over gay marriage:  Carlos Ball, Bob Barr, Thomas Berg, Erwin Chemerinsky, David Cruz, William C. Duncan, John Eastman, William Eskridge, Maggie Gallagher, Charles Fried, Andrew Koppelman, Pamela Karlan, Robert Levy, Laurence Tribe, Brian Raum, Ruthann Robson, Robin Wilson, Kenji Yoshino, and me.  My first contribution is here.  It should be an interesting couple of weeks.

It looks like a long-anticipated vote on whether to approve same-sex marriage will be held in the state senate, perhaps tonight.  As of now, 31 of the 62 senators have publicly supported it. Two Republicans are counted among those 31, and the search has been on for at least one additional GOP vote. The price for Republican support — at least the price we know of — has been a fairly broad religious exemption.  The state house would need to agree to the new language, which seems likely. 

The senate majority leader Dean Skelos released a statement tonight announcing a vote and thanking Gov. Cuomo for bending on religious liberty:

 I read this between the lines — especially the appreciation for relgious-liberty protection — as a signal that the votes are there to pass the bill.  But the New York legislature seems to be an especially treacherous and tortured place, so we’ll see what happens.

UPDATE: New York Senate live stream here.  The vote may not occur until late tonight.

SECOND UPDATE: The bill passed, 33-29.

The story (which, among other things, argued that the South African Constitution should be changed to reject same-sex marriage rights) and cartoon (which suggested that recognition of same-sex marriage would logically justify recognition of human-animal marriage) are here. The account of the court decision is in the Mail & Guardian; here’s an excerpt:

Former Sunday Sun columnist Jon Qwelane was found guilty of hate speech by the Johannesburg Equality Court on Tuesday.

The court found that a cartoon in his column amounted to hate speech, and that both his article and the cartoon propagated hatred and harm….

Qwelane was ordered to make an unconditional apology to the gay and lesbian community, and pay R100 000 to the SA Human Rights Commission….

Qwelane did not make much of an appearance in the course of the trial. He failed to sign court papers presented to him by a clerk and did not file responding papers.

The court ruled that, as it had only one version of the story, the SAHRC’s argument would be accepted.

They’re not quite registering June brides, but the joyous end of American civilization has legislatively spread to Cook County and the rest of the Land of Lincoln. Starting today, the state is granting all of the rights and privileges of marriage under state law to same-sex couples. 

With all the recent excitement in Minnesota over the effort to ban same-sex marriages in the state constitution, I neglected to mention that civil unions have also been legislatively approved in Delaware (effective January 1).  It’s the eighth state to provide comprehensive recognition to same-sex relationships under the title of civil union or domestic partnership. Five states recognize same-sex marriages. A few others provide a more limited set of legal protections.

Last night the Minnesota legislature capped a three-week end-of-session effort to ban same-sex marriage.  The state senate approved the amendment on May 11.  It then went to the state house of representatives. In the end, the vote was 70-62 in favor, two more than the 68 needed for passage onto the ballot.  Sixty-eight Republicans (the exact number needed) and two Democrats voted for it.  Four Republicans voted against it, putting their legislative careers on the line, as did 58 Democrats, some of whom represent socially conservative districts. 

The debate lasted more than five hours. You can watch it here, beginning at the 22:30 mark.  (In the background you can hear the chants and songs of hundreds of amendment opponents outside the chamber.)  But debate really isn’t the word for it. As happened in the committee hearings prior to the floor votes, no amendment supporters other than the sponsor spoke up in favor of it.  Even he offered no substantive defense of it, saying only that the people should be allowed to decide the issue.  They sat there, said nothing, and voted “yes.”  There was political calculation in that silence, to be sure, but having talked with many legislators I also know there was some shame in it. 

On the other side, there was a speech by first-term Rep. John Kriesel (R-Cottage Grove), a war hero, that should be remembered when the history of the same-sex marriage movement is finally written. It’s the “Hell No” speech, and can be found here.

During the debate, amendment opponents sang, chanted, and watched the proceedings on monitors.  They sang songs like Amazing Grace, This Land Is Your Land, the National Anthem, and most memorably for me, We Shall Overcome.  Below was the first rendition of many last night.  Forgive the shaky video, my hands were trembling as I tried to record the moment:

Eighteen months from now, on November 6, 2012, Minnesota will become the first state to reject one of these amendments.

On the floor of the state senate last week, the sponsor of an amendment defining marriage as the union of one man and one woman was asked by a colleague how the amendment would protect her marriage:

For the full context of the exchange between the senators, see here.  The state senate then voted to pass the amendment, 38-27.

The GOP sweep in Minnesota last fall was a mile wide and an inch deep.  A switch of a few hundred votes in a few key districts would have left the house and senate in Democratic hands. Republicans won on promises to balance the budget, limit taxes and spending, and make the state more business-friendly. Social issues were almost totally absent from the campaign. Nevertheless, a constitutional amendment excluding gay couples and their families from marriage has been making its way quickly through the Minnesota legislature. If approved, it would go on the ballot in November 2012 in a popular referendum, where it would have to get a majority of all votes cast in a high turnout year. It had seemed the amendment would sail through the state legislature. But now it faces rising Republican opposition. 

The GOP objectors publicly known so far include a state senator who voted in committee to table the amendment on Friday.  Last year, she called an anti-gay marriage amendment “a sword to hurt people, to identify people as different and create disparities.”

Also opposed is a GOP house member, a veteran who lost his legs in Iraq. He has publicly said that he “learned the hard way” that you only live once and it’s important to find someone you love.  He called the proposed amendment ”just wrong,” and declared, “There is not anything that can move me on this.” Apparently, if you’ve faced death in combat, the prospect of a primary opponent doesn’t intimidate you.

Other Republican legislators have questioned the need to constitionalize the issue. At the very least, there is considerable doubt about pushing it right now in the middle of a budget battle with the Democratic governor — it’s a distraction from the party’s core message and agenda. The amendment could be taken up next year and still appear on the 2012 ballot.

In this morning’s Minneapolis Star-Tribune, former Bush White House Counsel and a colleague of mine, Richard Painter, makes the Republican case against a proposed amendment banning same-sex marriage.  Painter opposes the amendment as a matter of principle, good politics, and business:

Minnesota marriage laws have been well-settled for a long time. Marriages must be between a man and a woman. There is no indication that state courts will wade into this area and legislate from the bench, and there is very little chance that the Minnesota Supreme Court would allow them to do so. . . .

Furthermore, the proposed amendment would force Minnesotans to engage in a divisive debate over a ballot measure. That debate would be particularly damaging for Republicans, who are divided on this issue.

The debate would also be costly and might encourage outside organizations to pour money into Minnesota — not only to defeat the ballot measure but to defeat Republican candidates. . . . 

Yet another danger is the damage this ballot measure could inflict on our economy. At present, Minnesota does not stand out among states that do not allow same-sex marriage.

We are not viewed as “homophobic” because we refuse to change existing law. If, however, we ask all Minnesotans to vote on the definition of marriage in 2012, it is certain that one side or the other will be dissatisfied with the result.

Companies with employees who feel strongly on this issue will not want to locate here.

At a time when many Minnesotans are unemployed and business owners are struggling with lagging sales and rising costs, we do not need a ballot measure on a divisive social issue that drives people away from our state.

Minnesota should send the message that we are open for business — that we are open to all people — and that we are serious about promoting the interests of businesses and their employees. This ballot measure does exactly the opposite.

If the issue reaches the floor of either the house or senate it would likely happen this coming week.

The post is at Independent Gay Forum’s CultureWatch. The conclusion:

Just guessing, but I don’t think Paul Clement’s having been pushed to a smaller firm is going to change the Supreme Court’s judgment on DOMA. I don’t think it’s going to deter the other side from going to court. I don’t even think it will deprive the other side of good lawyers. It did show gays have some muscle. It didn’t show we’re smart about using it.

BLT (The Blog of the Legal Times) reports:

“Paul Clement is a great lawyer,” [Attorney General Eric] Holder said today, addressing reporters at the Justice Department. “He has done a lot of really great things for this nation. In taking on representing Congress in connection with [the Defense of Marriage Act], I think he was doing that which lawyers do when we are at our best.” … “I think those who were critical of him for taking that representation — that criticism is very misplaced.”

Holder drew a comparison to the criticism, a year ago, that targeted Justice Department lawyers who defended Guantanamo detainees while in private practice. Conservatives then questioned the allegiance of Justice lawyers.

“The people who criticized our people here at the Justice Department were wrong then, as are people who criticized Paul Clement for taking the representation that is going to continue,” Holder said.

The Associated Press is reporting that President Obama has concluded that the Department of Justice should no longer defend the constitutionality of the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriage.

[Oops.  I see Dale beat me to it, so I'm closing comments.]

In the last year, readers of this blog have seen lots of posts on a major constitutional issue that is likely to reach the Supreme Court soon. And just recently, a District Court Judge issued a stunningly broad decision holding that the controversial law at issue is unconstitutional. Such a decision would have been considered really surprising if not just inconceivable just a few years ago. But times have changed, it seems.

The District Court’s decision has been extremely controversial. According to fans of the new decision — a group that happens to consist entirely of political opponents of the law — the new decision is a scholarly and profound application of longstanding constitutional principle. It is a masterful work that reflects a deep understanding of the core ideas on which our Constitutional order rests. To many opponents of the new decision, however, the District Court’s decision was simply political. The judge is basically a hack. His decision is a political position masquerading as a legal opinion, and it was written to try to fuel a political movement that the judge obviously supports.

Anyway, everyone seems to think the case is headed to the Supreme Court, so we’ll have to see how the Supreme Court rules. Stay tuned.

Post Script: Whether this post is about Judge Vinson’s decision this week striking down the new health care law, or, alternatively, Judge Walker’s August same-sex marriage decision striking down Prop 8 — or, perhaps, both — is left as an exercise for the reader.

I haven’t read the opinion yet, but I wanted to link to it, especially because I had blogged about the motion to recuse last month. Thanks to How Appealing for the pointer.

A very interesting and thoughtful article, in The Advocate, from a leading supporter of same-sex marriage rights. Here’s an excerpt:

[Gay rights opponents] have developed a narrative that goes like this:

Gay rights advocates don’t just want legal equality. They want to brand anyone who disagrees with them, on marriage or anything else, as the equivalent of a modern-day segregationist. If you think homosexuality is immoral or changeable, they want to send you to be reeducated, take away your license to practice counseling, or kick your evangelical student group off campus. If you object to facilitating same-sex weddings or placing adoptees with same-sex couples, they’ll slap you with a fine for discrimination, take away your nonprofit status, or force you to choose between your job and your conscience. If you so much as disagree with them, they call you a bigot and a hater.

They won’t stop until they stigmatize your core religious teachings as bigoted, ban your religious practices as discriminatory, and drive millions of religious Americans right out of the public square. But their target is broader than just religion. Their policy is one of zero tolerance for those who disagree with them, and they will use the law to enforce it.

At bottom, they are not interested in sharing the country. They want to wipe us out.

A lot of gay people have trouble taking this narrative seriously, partly because in its more extreme forms it sounds so paranoid and nutty — as when Tony Perkins, the president of the Family Research Council, recently said, “If this case [overruling California’s ban on gay marriage] stands, we’ll have gone, in one generation, from 1962, when the Bible was banned in public schools, to religious beliefs being banned in America.” It would be a false comfort, though, to suppose that the gays-as-oppressors narrative can’t and won’t take root among moderates and thoughtful, mainstream conservatives — people like Michael Gerson and Peter Wehner, former Bush administration officials, who write, “If [gay] marriage is deemed to be a civil right — and if opponents are therefore deemed to be the equivalent of modern-day segregationists — churches may eventually be compelled to act in a way that complies with the spirit and letter of ‘anti-discrimination’ law rather than with orthodox Christian teaching.” Stated that way, the claim happens to be true. Nor must we suppose it is a mere stratagem, cooked up to scare open donors’ pocketbooks. It is a product of a genuine and widespread fear of marginalization and stigmatization on the cultural right — and it is all the more biting as a result.

In a messy world where rights often collide, we can’t avoid arguing about where legitimate dissent ends and intolerable discrimination begins. What we can do is avoid a trap the other side has set for us. Incidents of rage against “haters,” verbal abuse of opponents, boycotts of small-business owners, absolutist enforcement of antidiscrimination laws: Those and other “zero-tolerance” tactics play into the “homosexual bullies” narrative, which is why our adversaries publicize them so energetically.

Very much worth reading — check it out.

As Dale notes below, the randomly chosen panel of the Ninth Circuit that will be hearing the Prop 8 case includes Stephen Reinhardt, the most-reversed Court of Appeals judge in the land. I’m reminded of this famous line from Casablanca:

Michael Hawkins is also on the panel, and in my experience he pretty reliably votes with Reinhardt. So as Dale says, this is good news for opponents of Prop 8 at least in the short term.

At the same time, I would think it is bad news for opponents of Prop 8 in the long term. It goes without saying that Reinhardt will vote the liberal way, and he’ll likely have Hawkins with him. But the word “Reinhardt” is radioactive at 1 First Street. Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in. So the fact that he’ll likely be involved in the panel decision probably hurts opponents of Prop 8 in the long run.