Metropolitan News-Enterprise


Friday, November 23, 2012


Page 5



An Architect of Change on Feeling the Future of Marriage




(The writer is a Los Angeles Attorney.)

I “feel” the United States Supreme Court will take the Massachusetts case (Gill v. Office of Personnel Management, v. Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012)) challenging the Defense of Marriage Act and I equally “feel” that the Court will grant review to consider Proposition 8 (Perry v. Brown (formerly Perry v. Schwarzenegger), 671 F.3d 1052 (9th Cir. 2012.))  Yes, I am admittedly biased and admit to having a reputation as being “a lawyer who helped inspire one of the legal arguments for removing the ballot initiative” to quote the Los Angeles Times, so permit me a little indulgence. 

I believe there are four votes on the Court to grant review for both the DOMA and Prop 8 cases and that they are ready to take the backlash of striking down laws banning same-sex marriage.

As to Prop 8, they can see the writing on the wall and it says “same-sex marriage is happening.”  If the high court refuses to hear the appeal from Yes on 8 supporters of Proposition 8, then same-sex marriage will become legal in California only.

From the way I see it, the Court has a choice of deciding whether there is a right to same-sex marriage under the Equal Protection analysis espoused in Romer v. Evans, 517 U.S. 620 (1996). The 9th Circuit in Perry limited the application of equal protection to situations where marriage rights were previously granted and then taken away by state constitutional initiative.  A reading of Romer, however, reveals that its equal protection analysis applies to prospective laws too. So when it comes to anti-gay marriage constitutional amendments the question is whether they are constitutional where states did not previously grant the right.   And that choice will determine if Chief Justice Roberts’ tenure on the Court goes down in history that approves of  “separate and unequal equal”  marriages (or other relationships or non-relationships) when it comes to gays and lesbians or whether equal protection applies to strike down all the anti-gay constitutional amendments. 

If the Court grants review, which I have to believe that it will, it means that the Court could find there’s a right not just in California, but in Texas, too. As keepers of the Constitution, it is the Court’s duty to recognize the growth in the American consciousness.   Unlike the issues of “abortion” or “race” there are less than six degrees of separation between gay and straight Americans because gay Americans are interwoven into the fabric of almost every American family.  Naturally the polling on gay marriage is showing increasing support among Americans because simply put, we are Americans.  That is why I believe the Roberts Court is ready to take the backlash in a manner similar to the era after Brown v. Board of Education, 347 U.S. 483 (1954).

As to the DOMA case (or cases), the court must grant review, and specifically, it will probably be the consolidated cases out of Massachusetts cited as Gill above. The consolidated lawsuits won a ruling from the First Circuit that Section 3 of DOMA is unconstitutional and if review is not granted, DOMA, by operation of law, becomes ineffective for federal purposes in the First Circuit.  By not granting “cert” as it is commonly called, the legal effect would be instantaneous for over 1,000 federal benefits including income taxes, immigration, estate taxes, and social security.  However these rights and benefits would only be available to residents governed by the First Circuit. 

The logistical nightmare of courts striking down DOMA federal court district by district would be virtually impossible to implement district by district; and would be certainly impossible to be re-implemented if the high court grants review at a later date and finds it constitutional.  And if the Court does not strike down DOMA, the issue will return. Our constitutional founder, Thomas Jefferson saw to it that this concept of a living constitution requires constant reexamining of civil rights to reflect the fabric of America.

The high court will probably take one of the Second Circuit cases too, especially if Justice Elena Kagan recuses herself from hearing Gill, because Kagan admitted during her confirmation hearing that she had some conversations with Department of Justice officials about the pending Massachusetts DOMA cases.

The Supreme Court has a conference scheduled for Nov. 30 and is expected to announce what cases it will hear on Dec. 3.


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