on the docket

The 3 Supreme Court Cases Obama’s New Pick Will Decide For You

With Supreme Court Justice John Paul Stevens retiring this summer, everyone’s started wondering who’ll replace the LGBT-friendliest judge. Republican Senator John Cornyn has already said that he’d be OK with a gay appointee, just as long as they don’t get too gay with their decisions. He may well get his wish as the AP just released a short list with 7 of Obama’s 10 possible Supreme Court nominees, including rumored lesbian Janet Napolitano. But whether the next Justice is gay or not, several of the court’s upcoming cases will certainly address gay rights. And Obama’s pick, and Republicans’ soon-to-come blocking efforts, will decide your future.
What separates California’s Prop 8 from the Texas “Homosexual Conduct” law and Colorado’s Amendment 2 is that it reads, “Only marriage between a man and a woman is valid or recognized in California.” It doesn’t explicitly say anything against homosexuals, gay marriage, or their receipt of civil benefits, so it doesn’t fall under the types of laws that the Supreme Court has already ruled against. It’s insidious in its simplicity. Even if Judge Vaughn Walker finds Prop 8 unconstitutional, California gay marriages won’t resume the following day. Instead, it’s likely that he’d put his ruling on hold in expectation of an appeal. The case would then go to the very liberal 9th Circuit Court of Appeals and whoever loses there would then almost certainly appeal to the Supreme Court. We expect the justices will take up the case, but even if they do find Prop 8 unconstitutional, their ruling may just effect California and not the Defense of Marriage Act or anti-same-sex marriage amendments in other states, depending on how narrow their ruling. It’s very possible they would declare, in the best of outcomes, that Prop 8 infringes on the Constitution’s Equal Protection clause under the 14th amendment. However, it could leave DOMA and other state laws open to future court battles.
The mostly-useless Log Cabin Republicans have taken on Alexander Nicholson (a multi-lingual Human Intelligence Collector fired under Don’t Ask Don’t Tell) and “John Doe” (a unnamed man currently serving in the military) as plaintiffs against the military’s anti-gay policy. We’re giving this case about a 50-50 chance of making it before the Court. First off, it’s questionable whether the LCR even has standing to challenge the U.S. government. Does the group’s collective suffering give it sufficient authority to challenge the DADT? That remains to be seen, and these higher courts are notorious for dismissing cases from the get-go for this (valid) reason alone. LCR says soldiers should be granted the same due process, freedom of expression, and equal protection afforded all Americans. Except that soldiers voluntarily sign away most of their rights as soon as they enlist. Furthermore, LCR says that to let DADT stand, the military must prove the policy is rationally related to its permissible goals. But the military doesn’t have to prove squat. They still forbid women from serving on the front lines despite repeated legal challenges. They’re not a corporation or citizen government—they’re an armed force responsible for the defense of our country. As such they’re given a wide berth to internally decide what’s best for unit cohesion, and the Court very possibly could let them and Congress continue deciding best policies. Our gay-friendly foreign allies have proved how well the military takes to gays. Nevertheless, our military is committed, laughably, to additional study on the matter, a delay tactic while the White House figures out how to survive mid-term elections and those two wars the Cowboy Dubya got us into. More probably is legislator repealing the law via the Defense Department’s budget bill, meaning DADT will be gone before the case even hits the Supreme Court — and Justice Stevens’ replacement


In March of 2009, Gay & Lesbian Advocates & Defenders (GLAD) filed a lawsuit in Boston’s Federal District Court on behalf of eight married couples and three surviving spouses from Massachusetts all denied federal legal protections available to spouses. GLAD’s argument is this: DOMA violates the Tenth Amendment of the U.S. Constitution, which prohibits Congress from intruding on areas of exclusive state authority. States decide marital laws, not the federal government. DOMA requires the federal government to override a state’s decision about who is married by designating which marriages are valid (something that falls out of its jurisdiction). Furthermore, GLAD says that DOMA violates the Constitution’s Fifth Amendment by denying “life, liberty, and property” to American citizens by refusing federally promised legal protections to its gay citizens

But GLAD’s case is most likely dead in the water for a few reasons.

One, its plaintiffs must prove they have standing to argue for state’s rights. Second, ever since the Civil War, federal laws have always trumped state laws. Even though states determine their own marriage laws, the federal government gets to decide whom to pay out in its programs. The case could easily get thrown out by a federal court on either of these grounds.

Rather, it’s more likely that DOMA will find a real challenge in Massachusettes v. DOMA because it stands on a much stronger leg. The entire state’s coming forward and saying that DOMA hurts everyone within it, not just 19 gay citizens. Furthermore, Massachusetts Attorney General Martha Coakley not only mimics GLAD’s claims, but adds that DOMA makes the state act against its own citizens (or else face a loss of federal funding) and that the law illegally targets gay people without furthering any state aim.

As a result, Massachusetts v. DOMA is the best legal challenge against the federal law thus far. It also relies heavily on the precedent Stevens laid out in Romer v. Evans and Lawrence v. Texas; leaving behind a legacy that could benefit future generations of LGBT Americans long after he leaves the court.

Thanks to Aaron Goodman, Patrick Hoffman, and Vance Roper for their additional research and discussion.

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  • doubter

    Good article over all. One thing that the author leaves out though is that regardless of whether or not DOMA is unconstitutional under a 10th (or even a 5th) amendment claim, it’s still the only thing holding the legislative branch from taking up a call to pass a constitutional amendment barring same-sex marriage. Currently DOMA is the dyke (pun half intended) holding a vast sea at bay. That’s not to say that it deserves to remain on the books, but one has to remember not only what it stands in place of, but also that it takes, at minimum, four Justices to approve the court placing the case on its docket.

  • reason

    It seems like the cases don’t really have the legs to challenge existing law.

    It would take a serious sea change in congress and/or nearly every state house to get a constitutional amendment pasted.

  • doubter

    @reason: i realize that. what i’m saying is that it would make it easier to rally support to “protect” marriage.

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