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US Supreme Court (SCOTUS) Hearing Two Cases on Gay Marriage

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Yesterday SCOTUS heard arguments on the constitutionality of California's ban on same-sex marriage and today arguments on the constitutionality of the federal Defence of Marriage Act (DOMA) that denies federal benefits to same sex couples.

The issue is more complicated in the US than in Canada where our Supreme Court ruled that the issue of definition of marriage was solely federal legislative jurisdiction in Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79 http://scc.lexum.org...m/2196/index.do As a result Parliament passed the Civil Marriage Act defining "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others." http://laws-lois.jus...1.5/page-1.html . Oddly enough Canaidan civilazation as we know it has not come to an end since same sex marriages have been authorized and people are not marrying their pets, trees, etc or multiple spouses or their siblings as opponents claimed would follow upon the Civil Marriage Act..

In the US the definition of marriage is principally under state legislative jurisdiction and it may be that SCOTUS will rule that DOMA intrudes on state jurisdiction. DOMA limits the definition of marriage as between a man and a woman. It permits benefits such as Social Security survivor payments and federal tax deductions only for married, opposite-sex couples, not for legally married same-sex couples.

It seems the Justices may try to find a way around deciding the California case on its merits:

The U.S. Supreme Court is suggesting it could find a way out of the case over California's ban on same-sex marriage without issuing a major national ruling on whether gays and lesbians have a right to marry, an issue one justice said was newer than cellphones and the internet.

Several justices, including some liberals who seemed open to same-sex marriage, raised doubts Tuesday that the case was properly before them. Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested that the court could dismiss the case with no ruling at all.

Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.

Kennedy said he feared the court would go into "uncharted waters" if it embraced arguments advanced by gay marriage supporters. But lawyer Theodore Olson, representing two same-sex couples, said that the court similarly ventured into the unknown in 1967 when it struck down bans on interracial marriage in 16 states.

Kennedy challenged the accuracy of that comment by noting that other countries had had interracial marriages for hundreds of years.

There was no majority apparent for any particular outcome and many doubts expressed about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favour of same-sex marriage rights.

Kennedy made clear he did not like the rationale of the federal appeals court that struck down Proposition 8, the California ban, even though it cited earlier opinions in favor of gay rights that Kennedy wrote.

That appeals court ruling applied only to California, where same-sex couples briefly had the right to marry before voters adopted a constitutional amendment in November 2008 that defined marriage as the union of a man and a woman.

Several members of the court also were troubled by the Obama administration's main point that when states offer same-sex couples all the rights of marriage, as California and eight other states do, they also must allow marriage.

Justice Samuel Alito described gay marriage as newer than such rapidly changing technological advances as cellphones and the Internet, and appeared to advocate a more cautious approach to the issue.

"You want us to assess the effect of same-sex marriage," Alito said to Solicitor General Donald Verrilli. "It may turn out to be a good thing. It may turn out to be not a good thing."

Charles Cooper, representing the people who helped get Proposition 8 on the ballot, ran into similar resistance over his argument that the court should uphold the ban as a valid expression of the people's will and let the vigorous political debate over gay marriage continue.

Here, Kennedy suggested that Cooper's argument did not take account of the estimated 40,000 children who have same-sex parents. "The voices of these children are important, don't you think?" Kennedy said.

Court's first major look at gay rights in a decade

This is the court's first major examination of gay rights in 10 years. On Wednesday, the justices will also consider the federal law that prevents legally married gay couples from receiving a range of benefits afforded straight married Americans.

Both sides of the case were represented outside the courthouse. Supporters of gay marriage came with homemade signs including ones that read "a more perfect union" and "love is love."

Actor-director Rob Reiner, who helped lead the fight against California's Proposition 8, was at the head of line Tuesday morning. Some people waited since Thursday — even through light snow — for coveted seats for the argument.

Among the opponents was retired metal worker Mike Krzywonos, 57, of Pawtucket, R.I. He wore a button that read "marriage 1 man + 1 woman" and said his group represents the "silent majority."

The two California couples challenging the voter-approved ban on same-sex marriage in the nation's largest state also are at the court for the argument and are urging the justices to strike down not just the California provision, but constitutional amendments and statutes in every state that define marriage as the union of a man and a woman.

They envision the 21st century equivalent of the court's 1967 decision in Loving v. Virginia that struck down state bans on interracial marriages.

The Obama administration has weighed in on behalf of the challengers, following President Barack Obama's declaration of support for same-sex marriage last year and his invocation of gay rights at his inauguration in January.

Supporters of Proposition 8 say the court should respect the verdict of California voters who approved the ban in 2008 and let the fast-changing politics of gay marriage evolve on their own, through ballot measures and legislative action, not judicial decrees.

Legal in 9 states

Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.

Thirty states ban same-sex marriage in their state constitutions, while ten states bar them under state laws. New Mexico law is silent on the issue.

Polls have shown increasing support in the country for gay marriage. According to a Pew Research Center poll conducted in mid-March, 49 per cent of Americans now favour allowing gays and lesbians to marry legally, with 44 per cent opposed.

The California case is being argued 10 years to the day after the court took up a challenge to Texas's anti-sodomy statute. That case ended with a forceful ruling prohibiting states from criminalizing sexual relations between consenting adults.

Kennedy was the author of the decision in Lawrence v. Texas in 2003, and he is being closely watched for how he might vote on the California ban. He cautioned in the Lawrence case that it had nothing to do with gay marriage, but dissenting Justice Antonin Scalia predicted the decision would lead to the invalidation of state laws against same-sex marriage.

Kennedy's decision is widely cited in the briefs in support of same-sex unions.

The court has several options for its eventual ruling, which is not expected before late June. In addition to upholding the ban and invalidating prohibitions everywhere, the justices could endorse an appeals court ruling that would make same-sex marriage legal in California but apply only to that state. They also could issue a broader ruling that would apply to California and eight other states: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples may join in civil unions or become domestic partners and have all the benefits of marriage but cannot be married.

One other possibility is a ruling that says nothing about marriage. California's top elected officials, Gov. Jerry Brown and Attorney General Kamala Harris, are refusing to defend Proposition 8, and there is a question about whether the Proposition 8 supporters have the right, or legal standing, to defend the measure in court. If the justices decide they do not, the case would end without a high court ruling about marriage, although legal experts widely believe same-sex marriages would quickly resume in California.

The California couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, filed their federal lawsuit in May 2009 to overturn the same-sex marriage ban that voters approved the previous November. The ballot measure halted same-sex unions in California, which began in June 2008 after a ruling from the California Supreme Court.

Roughly 18,000 couples were wed in the nearly five months that same-sex marriage was legal and those marriages remain valid in California.

The high-profile case has brought together onetime Supreme Court opponents. Republican Theodore Olson and Democrat David Boies are leading the legal team representing the same-sex couples. They argued against each other in the Bush v. Gore case that settled the disputed 2000 presidential election in favor of George W. Bush.

Opposing them is Charles Cooper, Olson's onetime colleague at the Justice Department in the Reagan administration.

The case is Hollingsworth v. Perry, 12-144.

http://www.cbc.ca/ne...y-marriage.html

Today arguments were held regarding the constitutionality of the federal Defence of Marriage Act and it seems the Justices are much less willing to uphold that law based upon questions being put to counsel.

The Supreme Court wrapped up a second day of arguments on gay marriage, as Justice Anthony M. Kennedy and the court’s liberal justices appeared headed toward striking down the part of the Defense of Marriage Act that denies federal benefits to legally married gay couples.

Kennedy repeatedly said the states, not the federal government, have the primary role in deciding who is married. The question is “whether the federal government has the authority to regulate marriage,” he said. “That authority undermines the states’ role in the federal system.”

Justice Kennedy, who could be the swing vote in the two gay marriage cases being argued this week, raised concerns that the law could be a violation of peoples’ equal protection rights and also of states’ rights and federalism.

Meanwhile, the court’s four liberal justices said the 1996 law is flawed and discriminatory because it treats married same-sex couples differently than other married couples.

Justice Ruth Bader Ginsburg said she too found the discrimination troubling. Some couples can have “full marriage” under the law, but others who are gay are left with “skim-milk marriage,” she said. Marriage affects "every aspect of life," she said. For the federal government to say that some legally married couples deserve benefits and others don't "diminishes what the state says is marriage." Couples would be left with "full marriage" on the one hand and "skim-milk marriage," on the other, she said.

Justice Sonia Sotomayor said the law creates two classes of married couples. “You are treating a married couple from New York (who are gay) differently than a couple from Oklahoma,” she said, even though both are legally married under state law. The government “can’t create a class they don’t like,” she said, “and decided they get different benefits on that basis.”

Because of the federal law, about 130,000 same-sex couples are denied benefits such as filling a joint tax return or receiving Social Security benefits as a survivor.

Former Solicitor General Paul Clement said Congress passed the law to set a “uniform” definition of marriage. The government “has a powerful interest in uniformity,” he said.

But Justice Elena Kagan objected. She said the uniform rule prior to DOMA was that persons who are married in the state are married under federal law. “This was different,” she said. “This statute does something that had not been done before.” It excluded recognition of some married couples, she said, because of “a moral disapproval of homosexuality,” quoting from a House committee report.

Clement partially conceded the point. "If that's enough to invalidate the statute, you should invalidate the statute," he said, before going on to argue that the justices should look at the other reasons Congress had for passing the law and uphold it if any of them could be considered valid.

U.S. Solicitor General Donald Verrilli said the law should be struck down because it denies same-sex couples the equal protection of the laws. “Section 3 (of DOMA) is discrimination. It cannot stand,” he said, in light of the nation’s “fundamental commitment to equal treatment” under the law.

Midway into the second day of arguments, conservatives on the U.S. Supreme Court said on Wednesday they were troubled by President Barack Obama's decision in 2011 not to defend in court a ban Congress had approved.

The decision by Obama to abandon the legal defense of the 1996 Defense of Marriage Act (DOMA) called into question his willingness to defend other laws passed by Congress and challenged in court, several conservative justices said.

The administration's refusal to defend the law while still asking the high court to rule on it prompted hostile comments from two of the court's conservative members.

"I don't see why he doesn't have the courage of his convictions," Chief Justice Roberts said, suggesting that if Obama disapproves of the law, he should simply refuse to enforce it rather than asking the court for a decision.

Justice Antonin Scalia similarly chided a lawyer for the administration, saying that when he worked in the Justice Department, the government's clear policy was to defend all federal statutes except those which clearly infringed on the president's constitutional powers. "I'm wondering if we're living in this new world" in which presidents and attorneys general will routinely refuse to enforce laws with which they disagree, he said. If so, cases like this "will come all the time."

Defending the administration, Deputy Solicitor General Sri Srinivasan said the president's oath to defend the constitution gives him the authority to refuse to defend a law that clearly violates a constitutional provision. But, he said, when the president makes that decision, it's not an "all or nothing" situation which requires the government immediately to stop enforcing the law.

The administration had decided to seek further court review of the law out of "respect" for the courts and Congress, Srinivasan said.

His position appeared to draw support from at least four of the justices. A majority of the court seemed willing to reach the merits of the case and appeared skeptical of the law's constitutionality.

The nine justices heard arguments on Tuesday on the constitutionality of California's Proposition 8 ban on gay marriage.

In those arguments, the justices displayed a reluctance to rule broadly on the right to marry for gays and lesbians, suggesting the court may be similarly cautious about DOMA.

Rulings in both cases are expected by the end of June.

Defining DOMA?

DOMA limits the definition of marriage as between a man and a woman. It permits benefits such as Social Security survivor payments and federal tax deductions only for married, opposite-sex couples, not for legally married same-sex couples.

President Bill Clinton signed DOMA into law in 1996 after it passed Congress with only 81 of 535 lawmakers opposing it. Clinton, a Democrat, earlier this month said that times have changed since then and called for the law to be overturned.

In the California case argued on Tuesday, the justices seemed wary of endorsing a broad right for gay and lesbian couples to marry, as gay rights advocates had wanted. As a result, the Proposition 8 case is less likely to influence how the court approaches DOMA, which presents a narrower question.

The slightly lower-profile case being argued Wednesday focuses on whether Edith Windsor, who was married to a woman, should get the federal estate tax deduction available to heterosexuals when their spouses pass away.

Windsor's marriage to Thea Spyer was recognized under New York law, but not under DOMA. When Spyer died in 2009, Windsor was forced to pay federal estate tax because the federal government would not recognize her marriage. She sued the government, seeking a $363,000 tax refund.

Windsor's lawyers say the federal government has no role in defining marriage, which is traditionally left to states.

"It's the states that marry people," said James Esseks, an American Civil Liberties Union lawyer who is part of Windsor's legal team. "The federal government doesn't do that."

The roughly 133,000 gay couples nationwide, married in one of the nine states where it is legal, are not recognized as married by the federal government, Windsor's supporters say.

Various groups are calling for DOMA to be struck down, such as the Business Coalition for DOMA Repeal, whose members include Marriott International Inc, Aetna Inc, eBay Inc, and Thomson Reuters Corp, the corporate parent of the Reuters news agency.

If the justices were to decide that the federal government and Windsor are, in effect, completely on the same side, they might not be in position to decide the case. In that situation, a lower court ruling which Windsor won would prevail, but the constitutional status of the law might remain in doubt.

When the case initially reached the high court, the justices indicated that at least some of them considered those procedural issues a potential bar to resolving the merits of the DOMA case: They set aside nearly an hour of argument solely to consider that issue, and they appointed a Harvard law professor to argue the position.

If the justices were to strike down DOMA, the ruling would be a major victory for gay rights and for thousands of legally married couples. But it would not necessarily have any effect in the 41 states that do not recognize such marriages.

http://www.chicagotr...,0,793392.story

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I love when social conservative types say gays are "forcing their definition of marriage on everyone", when really it's the other way around. They always act as if allowing gay marriage will all of a sudden turn a whole bunch of straight people into gays, when it will really make no difference.

The whole gay marriage debate is a joke. I can't think of a single good reason why it should be banned.

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I love when social conservative types say gays are "forcing their definition of marriage on everyone", when really it's the other way around. They always act as if allowing gay marriage will all of a sudden turn a whole bunch of straight people into gays, when it will really make no difference.

The whole gay marriage debate is a joke. I can't think of a single good reason why it should be banned.

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A I understand, this should be a debate of the civil definition of marriage. God should have nothing to do with this. I wonder why they don't just call it something else and confer the same rights to gay unions. Probably will get a good piece of the more progressive religious opposition out of the way.

I wonder who would be more opposed to calling it something else, the gay community or the religious fundamentalists?

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I love when social conservative types say gays are "forcing their definition of marriage on everyone", when really it's the other way around. They always act as if allowing gay marriage will all of a sudden turn a whole bunch of straight people into gays, when it will really make no difference.

The whole gay marriage debate is a joke. I can't think of a single good reason why it should be banned.

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America should be embarrassed to be this far behind in the movement of equal rights for homosexuals at this point in time. The level of ignorance behind the reasoning to keep homosexuals below the rest of the country is staggering in today's world. There is no scientific argument, only religious non sense and uneducated homophobic rhetoric.

Get with the times America. People are people no matter who they sleep with at the end of the day.

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Im a strong believing Christian but i could care less nor am i opposed to gay marriage. If it is a horrible sin then that is something they can deal with when they die meet God ( coming from a position that there is a God) . If 2 consulting adults want to make that choice in there life, then so be it and why should i judge them ?

To be honest, I personally have more of a problem with arranged marriages because 2 people are being forced into a life time union that is not there choice. . . but thats a different topic.....

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A I understand, this should be a debate of the civil definition of marriage. God should have nothing to do with this. I wonder why they don't just call it something else and confer the same rights to gay unions. Probably will get a good piece of the more progressive religious opposition out of the way.

I wonder who would be more opposed to calling it something else, the gay community or the religious fundamentalists?

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Some arguments being advanced to oppose gay marriage:

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America should be embarrassed to be this far behind in the movement of equal rights for homosexuals at this point in time. The level of ignorance behind the reasoning to keep homosexuals below the rest of the country is staggering in today's world. There is no scientific argument, only religious non sense and uneducated homophobic rhetoric.

Get with the times America. People are people no matter who they sleep with at the end of the day.

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The Amazing Atheist video: "Buzzfeed recently ran a story called "20 Young People Who Believe Marriage Should Be Between One Man And One Woman" where they "asked 20 young people at the Nation For Marriage rally to write on a pad of paper why they were supporting traditional marriage." In this video, I review and respond to their answers."

I quickly browsed. Oh, look, the bible and 'god' was in the majority of their answers, even though it/he says nothing specifically about the subject of gay marriage.

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Relax guy, america is actually ahead of most of the developed world in equal rights for homosexuals, being one of literally only a handful of countries that you can legally marry someone of the same sex (in some states). In fact, same-sex marriage was legal in Massachusetts before it was in most of Canada. Interesting note: Obama is for same-sex marriage while Harper is against

The blind circle jerk of hate for america on these boards would be laughable if it weren't so pathetic

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this "arguments" must be from a redneck...

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That is inaccurate.

Same sex marriage was legal the three largest provinces in Canada - Ontario, British Columbia and Quebec before it was legal in Massachusetts.

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well i did say most, and 3 provinces is less than half of Canada (though together those three make up more than half of the population, yes). But when I posted that I didn't realize Quebec was in there first. I stand corrected

You can still be against something and accept that it won't change. I accept stupidity on the boards (present company excluded), but I don't have to agree with it

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Alright alright haha, Canada is far ahead of America with gay rights.

That doesn't mean America is a relatively bad place for LGBT people. I'd rather live in America as a gay man than most other places

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America should be embarrassed to be this far behind in the movement of equal rights for homosexuals at this point in time. The level of ignorance behind the reasoning to keep homosexuals below the rest of the country is staggering in today's world. There is no scientific argument, only religious non sense and uneducated homophobic rhetoric.

Get with the times America. People are people no matter who they sleep with at the end of the day.

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