DOMA Declared UNCONSTITUTIONAL by Ninth Circuit!

[berni_mccoy]

Not sure how this got missed here, and I apologize if someone has posted it.

Via Kos: http://www.dailykos.com/storyonly/2009/11/20/806362/-Ninth-Circuit:-DOMA-unconstitutional

Judge Stephen Reinhardt of the Ninth Circuit in an order Wednesday seems to have declared the half of DOMA that declares that a same-sex marriage cannot be a marriage under federal law or for purposes of granting federal benefits unconstitutional, a violation of the equal protection component of the due process guarantee of the Fifth Amendment of the U.S. Constitution. http://www.ca9.uscourts.gov/datastore/opinions/2009/11/18/0980172o.pdf
...

In sum, to the extent that the application of DOMA serves to preclude the provision of health insurance coverage to a same-sex spouse of a legally married federal employee because of the employee's and his or her spouse's sex or sexual orientation, DOMA, as applied, contravenes the Fifth Amendment to the United States Constitution and is therefore unconstitutional.

That's about as flat a declaration of the unconstitutionality of that part of DOMA as one can expect to see come from a court. (Note that it places no reliance on the fact that the employee in question was an employee of a federal court, as opposed to of the federal government in general.

[Orrex]

1. Magnificent! And long overdue!

K&R

[myrna minx]

2. Excellent!

[calimary]

3. Well, well, well.

Some sanity prevails.

[NightHawk63]

4. Excellent news!!!

[redqueen]

5. It's about time.

And thank goodness cause those cowards in Congress seemed fine with just putting off dealing with it.

[jpak]

6. Does this mean it will go the to Supreme Court?

:shrug:

[FBaggins]

15. It could... though I wish

they gave it time for one of the more conservative justices to be replaced.

[goclark]

7. K and Keep Kicked

:bounce:

Keep the good news coming :bounce:

[Sinti]

8. YES! That is correct

Equal protection. This also gives us a little more case law for further codification of the equal protection clause argument. The more courts you can get to state this, the stronger the final recognition in law will be.

[kestrel91316]

9. Very good news. But the fight is long from over.

[Better Believe It]

10. A big K & R !

[Renew Deal]

11. I hope this is true and it holds up.

:wow:

[RaleighNCDUer]

12. Great. The ruling will, of course, be appealed. That means the SC

court will either refuse to hear the case - thereby upholding the ruling and killing DOMA - or hear the case and rule on it. I wonder how the SC wingers are going to be able to not uphold it - what argument can they possibly use?

Of course, the end result will be that congress will either let it drop, or re-write it and send it to Obama for signature. I don't see him signing any new version of DOMA.

[harkadog]

23. Refusing to hear the case would not uphold the ruling

If the SC refused to hear the case it would only mean the ruling of the 9th circuit would stand in the 9th circuit courts. Elsewhere in the country the DOMA would continue on.

[elleng]

30. This decision has a VERY NARROW SCOPE,

as this Judge appears ONLY in his role as 'Chair of the 9th Circuit's Standing Committee on Federal Public Defenders . . . and as designee of the current Chair.' While the law he cites may be correct, the decision only covers individuals and cases within the group he described.

[JDPriestly]

34. I'm not sure of the procedure for an appeal of this.

Here is Reinhardt's explanation for his authority in issuing the original order on which this order is based:

As required by the EDR Plan, see id. at A-6-A-9, Levenson
requested counseling, which failed, and mediation, which also
failed. He then filed the pending complaint. Id. at A-10. In my
role as Chair of the Ninth Circuit’s Standing Committee on
Federal Public Defenders at the time of the complaint’s filing,
and presently as designee of the current Chair of the Standing
Committee, I am charged with hearing and ruling upon
Levenson’s complaint. Id.

http://www.ca9.uscourts.gov/datastore/opinions/2009/03/17/levenson.pdf

[sam sarrha]

62. i live n NC, the fundies at work are Really Proud of being able to Lord Over Gay People.. they say

god hates em and so do they..with a smile, they are really happy about that..

[Uncle Joe]

13. Kicked and recommended.

Thanks for the thread, berni_mccoy.

[jberryhill]

14. Not As Broad As It Seems

This was a challenge "as applied" in the context of a specific statutory compensation plan which, by its own terms, prohibited discrimination on the ground of "sex or sexual orientation".

It was not a facial challenge, but it provides a handy road map.

[burning rain]

16. Good news....

but the Ninth Circuit has long been far more liberal than the Supreme Court, and has its decisions reversed by it with particular frequency.

[tekisui]

17. The 9th laid out a strong argument that will be hard to overrule, IMO.

They showed that the rational basis test, the weakest test, does not apply. They do not go as far recommending the strict scrutiny test, the strongest. They use an intermediate test to show DOMA is unconstitutional, effectively killing all the arguments from the government.

[berni_mccoy]

19. I agree.

[JDPriestly]

29. Thanks.

[Ms. Toad]

35. Even better - actually

He found it cannot even meet the standards of the rational basis test. (P9 of the opinion)

[NewJeffCT]

37. That hasn't stopped Scalia & crew before, though

precedent means little to them

[tekisui]

38. Kennedy was the swing vote for Romer v. Evans

He would be now, as well.

[burning rain]

77. Well, I'd love the Supreme Court to hand down a pro-equality ruling.

In any case, I'll bet it will be 5-4 with Kennedy making the difference whichever way it goes. I just imagine the pro-equality side of Romer v Evans was an easier sell, than marriage equality, which a lot of people have a harder time wrapping their heads around than employment and housing non-discrimination and the like. Kennedy may be a moderate conservative, but he's still a conservative, and I suspect ideology will count on this one, so we'll see.

[Political Heretic]

18. Woderful news in a fight that is far from over with most Democratic politicians voting "present"

in the struggle.... :(

[Hepburn]

20. Yippeeeeeeeeeee for the 9th Cir.

:applause:

[Major Hogwash]

21. Wow, this has been coming for a longgg time.

Really long time.

[Zenlitened]

22. Wow!!!

:applause:

[undergroundnomore]

24. Is it wrong

to yell AMEN? I just hope that it's not overturned at a higher court. I dream of a day that people like my nephew, like my friends R&M, K&L, can be joined as a couple. While my nephew has not found that someone yet, my other two friends have been together for years and their love is not just evident but almost infectious.

[sakabatou]

41. Nope

Not wrong to say "Amen." But I prefer my personal favorite: "RAmen!"

[undergroundnomore]

54. he he he he

ah the official food of college students everywhere.

[Ysabel]

25. thanks for the great news berni...

k and r...

[laconicsax]

26. Great news!

[tonysam]

27. Actually, it wasn't missed

I posted the article previously which came from the L.A. Times.

[Odin2005]

28. WOOT!

[WillyT]

31. Yeah Baby !!! - K & R !!!

:applause::woohoo::applause:

:kick:

[Wounded Bear]

32. So, is citing the 5th Amendment a stronger support than the 14th?

Just curious. I know a lot of case law refers to the 14th Amendment. I haven't heard that many go back to the original Bill of Rights.

[tekisui]

36. Using the 5th with the 14th makes the argument stronger.

The opinion uses Romer v. Evans to reach the ruling. Romer depends mostly on the 14th. By pointing to the 5th, it adds more force to the argument. "No person shall be...deprived of life, liberty, or property, without due process of law". This judge see this right violated through the denial of benefits. It is a two prong attack. In addition to that, DOMA also violates the equal protection clause in the 14th.

[HamdenRice]

57. That's not actually the reason. 14th Am. "equal protection" does not apply to federal government

See below.

[HamdenRice]

56. Excellent question, and the answer is technical: The 14th Am. does NOT apply to federal government

Most discrimination cases are decided under the 14th Amendment's "equal protection" clause -- the main clause in the Constitution that forbids racial and other forms of discrimination. But this is a case of the federal government discriminating, so the 14th Amendment does not apply directly.

At the time the 14th Amendment was adopted, the main concern was the former slave states, and ensuring that they did not discriminate against the freed slaves. Somewhat hypocritically, the 14th Amendment was designed to allow the federal government to be free to discriminate on the basis of race or any other characteristics. The 14th Amendment equal protection clause therefore says:

"no state shall ... deny to any person within its jurisdiction the equal protection of the laws".

So, for example, when cases like Brown v. Board of Education were decided, that said states could not segregate schools, separate cases had to be brought against the Washington D.C. school system because the 14th Amendment did not apply to D.C.

Fortunately, in a bit of judicial sleight of hand, the Supreme Court had decided to apply equal protection to the federal government by deciding that the "due process clause" of the Fifth Amendment required the federal government to also be subject to the principle of "equal protection."

In Bolling v Sharpe (1954), Chief Justice Warren wrote:

"The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process."

[tekisui]

64. Has the 14th never applied to the federal government?

It seems to me that 'state' could describe the federal state as well. I don't think the Court would find that the federal government has a right to discriminate, although states cannot.

[HamdenRice]

66. The Fourteenth Am. does not apply to the federal government. States means states of the union.

And in general, the rules against the federal government discriminating are somewhat different from the rules against state governments discriminating.

The federal government is given greater scope to engage in racial discrimination -- but in modern times, positive discrimination.

So, for example, the federal government is allowed much, much greater scope for affirmative action for minorities and women than the states. Iirc, there were cases about minority set asides in business contracting under federal and state law.

Federal courts basically said that the federal government could adopt quotas for minority and woman owned businesses that would be illegal for the states to adopt. These federal quotas, which states cannot adopt, have existed in areas like FCC licenses, business contracting and the like.

[DU GrovelBot]

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[Bette Noir]

39. Woo hoo!

[sakabatou]

40. Woo-hoo!

But I wonder, what does this mean about states that voted against same-sex marriages? What happens in those states?

[Initech]

42. About fuckin' time!

:woohoo: :toast:

[alp227]

43. Hip hip hooray "Nutty" Ninth! But are there still any hurdles?

But still I wonder if a mere passage in a judicial opinion is enough to repeal DOMA. Think about it like the passage in the Treaty of Tripoli that says that America is not founded on Christianity. See a similarity? Also, what about Proposition 8? How many hurdles need to be KO'ed before marriage equality is finally completed?

[AtheistCrusader]

44. Hell yeah baby, west side!

Getting it done the hard way, as usual

[Hekate]

45. Y E S! KnR!

:bounce:

[johnaries]

46. About frickin' time!

Does DOMA violate equal rights? Well... duh!

[uppityperson]

47. Whoah! Best news of the day, THANK YOU

about time

[chill_wind]

48. A great decision indeed! K & R

[tomg]

49. Wonderful news K & R nt

[John Kerry VonErich]

50. Don't put the cart before the horse.

Remember, despite their correct decisions, the ninth is the most overturned circuit in the nation.

[proteus_lives]

51. Smashing!

:thumbsup:

[rucky]

52. Brad Levenson - remember that name.

He's a hero!

[ashling]

53. As I read it, this does not invalidate the entire law

just a particular application and NOT a flat declaratiion of unconstitutionality. This is, no doubt, a good thing, but keep it in perspective.

on edit: and a fairly narrow application at that.

[Bluenorthwest]

55. Hyperbole does not win our rights

This narrow ruling is not what you claim it to be. If it was, there would be a party in the streets. This is about real people in real families. Actual people. Not paragraphs to please posters.

[HamdenRice]

59. SCOTUS could declare equal marriage a fundamental right, and you would complain

In the same way that "hyperbole" doesn't win rights, neither does "negative hyperbole" convince anyone.

For some people there's a cloud in every silver lining.

[HamdenRice]

58. SCOTUS may wait for a "split in the circuits"

As pointed out above, this is now law in the 9th Circuit. It will be appealed to SCOTUS.

One strategy that SCOTUS sometimes uses is to wait for the circuit courts to have different outcomes. That's sometimes called a split in the circuits. When that happens, it becomes almost impossible for SCOTUS to avoid taking the case.

I would expect advocates of the end of DOMA to now bring a similar case in one of the most conservative circuits for the explicit purpose of getting a "wrong" outcome.

That will be a win-win situation. Either a conservative circuit will agree, and DOMA will be dead, or the conservative circuit will disagree, and SCOTUS will have to take the case.

[Ohio Joe]

60. K&R - nt

[sam sarrha]

61. it seems to follow that a non government person must have the same rights, and it does mention

marriage.. so if a government person can be considered married so can a non government person.:bounce: :woohoo: :applause: :applause: :applause: :toast: :toast:

[pleah]

63. K&R

[Kajsa]

65. It's about time!

:applause:

[midnight]

67. Doma, another reason to have a stronger separation of church and state.

[lonestarnot]

68. 9th Circuit YES!

:applause:

[Politicub]

69. Chipping away DOMA bit by bit

If this ruling stands, DOMA continues to get weakened, as it should. Congress could grow a pair and repeal DOMA, but I'm not holding my breath for that.

Then once DOMA gets repealed, theoretically a couple from Mass could move to my backward state of Georgia, get denied the full faith and credit of Mass contracts in GA, then challenge GA under the 14th Amendment to the constitution.

For GA to not need to recognize the contract of marriage from Mass would require the supremes to weaken the 14th amendment to allow states to deny contracts from another. But this is highly unlikely, since it would let a genie out of the bottle and spur hundreds of cases from the states not to recognize other types of contracts from others. Remember, the 14th amendment confers the protections of the bill of rights to citizens of the many states.

There is a wide body of case law to suggest the supremes will keep the fidelity of the 14th amendment intact.

And here is the text of the 14th. It's elegant in its simplicity, and today it would be highly unlikely that an amendment this sweeping about anything would pass.

Text
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

It will take many years but it's inevitable. What could horrifically thwart the judicial process would be an anti-gay marriage amendment to the constitution. In my estimation the tide is turning against discrimination against gays - albeit slowly.

[-..__...]

74. The 14th amendment is about to be reexamined...

from a slightly different perspective (Privileges or Immunities), with wide ranging results...

With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level. The brief is dominated by a wide-ranging survey of the meaning and origins of the privileges clause of the Fourteenth Amendment, only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause. (The Court presumably is more familiar with the Due Process Clause, repeatedly litigated for decades even as the Privileges or Immunities Clause has lain largely dormant.)

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886. “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

[Politicub]

75. Not sure how this applies to this case, but I would like to understand

Do you happen to have a link w/ additional analysis? Would love to read more.

And, if the plaintiffs prevail, does it mean that the 14th amendment is strengthened or weakened as it applies to full faith and credit?

On edit - here's an interesting analysis of the case in Mass that says DOMA violates the 10th amendment, too. - http://www.john-shields.com/2009/07/the-14th-amendment-and-the-defense-of-marriage-act.html

Sometimes I wish I had pursued an education in law rather than communications. :)

[-..__...]

76. It probably has little effect on DOMA...

but, I believe it (overturning Slaughterhouse and once again acknowledging the original intent of the Privileges and Immunities" clause), would open the doors to the individual states recognizing/honoring marriages performed in other states.

Might not be the nail in denying same sex rights coffin, but once there's a solid legal foundation to build on, the rest will hopefully follow (DOMA thrown out, states cannot deny same sex marriage, etc).

"Sometimes I wish I had pursued an education in law....".

I'm probably at the same level of understanding as you are. :)

"Do you happen to have a link w/ additional analysis? Would love to read more".

My mistake.

I thought I had included a link to the full article.

http://www.scotusblog.com/wp/history-lesson-on-2nd-amendments-reach/#more-12985

[wpelb]

70. Who's responsible for DOMA in the first place?

IIRC, a Republican-controlled Congress passed it, while a Democratic President, Bill Clinton, signed it. I knew of some gays who weren't too happen with him for doing so. He could have vetoed it and forced Congress to override his veto.

[Stargleamer]

71. If DOMA is unconstutional wouldn't they rule Prop. 8 to be too?

It would stand to reason.

[HamdenRice]

72. Unfortunately, no

They're not really the same legal issue. The DOMA issue is: what happens when a state allows GLBT people to marry -- does the federal government and other states have to recognize that marriage? Under the Constitution's full faith and credit clause, the answer should be yes, and under the due process clause, the federal government should have to recognize those marriages.

Prop 8 raises a different question -- which is whether states have to allow for LGBT marriages. It's less clear cut. I think under the 14th Amendment, the answer is yes, but there is less clear law about it than the first question.

The issue of DOMA is not just discrimination, but whether other states and the federal government have to recognize what certain states do.

[Unvanguard]

73. The federal benefits issue is closely related, actually.

The Fifth Amendment due process clause challenge here is a close analogue of a Fourteenth Amendment equal protection challenge, which is what applies to the states. If DOMA is unconstitutional discrimination against same-sex couples, it's hard to see why any state law banning same-sex marriage wouldn't be.

There is no constitutional provision that says "The federal government must allocate benefits according to each state's definitions of marriage." It has nothing to do with full faith and credit, which is by its very nature applicable only to the states: in any case, the federal government is not saying that the same-sex couples are not really married, it is simply saying that its benefits to not apply to them. If this policy is unconstitutionally discriminatory, then to outright deny marriage (or at least state marriage benefits) to same-sex couples surely is.