Law, Unwrapped: What The Supreme Court’s Decision To Hear DOMA And Prop 8 Means
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O.K., so as anyone with a pulse by now knows, the Supreme Court has just agreed to hear appeals on two marriage cases. Should we be getting ready for a blockbuster decision, either way? Maybe.
Let’s look at what the Court did here. The Justices have been sitting on a pile of petitions relating to marriage equality, and given the different issues they pose, it’s no wonder they didn’t rush to make their decisions. There was a simpler course of action – one I expected SCOTUS to take – and a messier one. The Justices embraced the mess.
The challenges to the Defense of Marriage Act, aka, DOMA, are the simpler ones, more easily decided on relatively narrow grounds that would have left the big issue of whether gays and lesbians have an equal right to marry for another day. A bunch of cases alleged that section 3 of DOMA violates gay and lesbian couples’ right to equal protection under the law, since it treats married same-sex couples differently from married gay couples. Simply put, same-sex marriages don’t count for federal purposes.
The case the Court took for review, Windsor v. United States, illustrates the point well enough. Edith Windsor, now in her eighties, was in a forty-year relationship with Thea Spyer. The couple finally married in 2007 in Canada (a marriage that was recognized in New York, even before that state began issuing its own marriage licenses a couple years ago). But when Spyer died a couple years later, Windsor was hit with a major bill: $363,000 in federal estate taxes. Had Spyer’s spouse been a man, her bill would have been…zero. That’s because an exemption to the estate tax allows spouses can pass their estates to each other, tax-free. Unless, of course, the marriage involves a same-sex couple. Agreeing with every other federal court to consider the issue, the federal court of appeals for the Second Circuit (New York and a couple of neighboring states) found that this disparate treatment was a clear violation of Windsor’s right to equal protection under the law. It’s hard to argue with that.
DOMA is an unprecedented incursion into a matter historically left to the states – Who is qualified to marry whom? So overturning it should appeal to Justice Kennedy, who will probably return to the role of swing Justice he temporarily ceded to Justice Roberts in the health care decision this past summer. As NYU Law’s Kenji Yoshino has memorably stated, Kennedy likes two things: states rights and gay rights. In fact, he wrote the majority opinions on the two big decisions affecting our community (Romer v. Evans and Lawrence v. Texas), and he did so using sweeping reasoning and rhetoric that certainly provides some reason for optimism here.
Justice Kennedy won’t have to do a heavy lift. It’s hard to justify this particularly pernicious provision of DOMA (the other substantive section has to do with interstate recognition of same-sex marriage, and it’s not at issue in this case), and I’m guessing the Court will find that it doesn’t even have a rational basis – the absolute minimum standard that a law has to meet to pass constitutional muster.
(The Court might also accept the Windsor court’s invitation to put the law under a greater degree of scrutiny; indeed, one reason the Court chose this particular case might have been to settle the issue of whether gays and lesbians constitute a “suspect class†– a minority that is entitled to special protection under the law. Surprisingly, the Supreme Court has never decided this issue, one way or the other.)
If DOMA falls, it’s big news, but not cataclysmic. The states would still be free to decide whether they want to recognize or ban same-sex unions – or to craft some kind of compromise, such as the trendy civil union or the by-now hoary domestic partnership. It’s just that the federal government won’t be able to ignore what the states decide. Same-sex couples legally married in their home state would “just†be entitled to the cavalcade of benefits that rain down on other married couples.
The Court could have, perhaps should have, stopped there. And the Ninth Circuit, which is the federal appellate court that decided the Prop 8 appeal (in the case now captioned Hollingsworth v. Perry, about its third name so far), took steps to keep this flammable material away from SCOTUS by setting its decision that Prop 8 was unconstitutional in the thinnest soil it could find: When same-sex couples can already marry in a state (which was the case in California when Prop 8 was passed, rescinding that right), then taking that right away and replacing it with something that’s all but marriage – comprehensive domestic partnership status – can only be explained by irrational dislike (“animus†is the word often used) of gay and lesbian couples. And that’s not a permissible ground for discrimination under existing Supreme Court precedent.
But the Court would have none of this narrow-casting of the issue. In its order granting review of the case, SCOTUS said it wanted argument on the issue the Prop 8 proponents had offered up: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.†That’s not quite as broad as deciding whether gays and lesbians have a fundamental right to marry (someone of their own sex, please!), but it’s close. So does that mean this case is really where the action is? Has DOMA been shoved into the wings?
I don’t know. For the Court also asked the Hollingsworth parties to brief the important constitutional issue whether the Prop 8 proponents even have standing to appeal – a question that the proponents, who asked the Court to take the case in the first place, surely don’t want to deal with. Courts aren’t debating clubs, and the parties who bring suit must have a concrete stake in the outcome. Maybe the Court will find that the proponents have no such stake. If so, then the first appeal wasn’t proper, either, and this case would likely unspool all the way back to what the lower court decided – that the parties involved in the case, and perhaps only those parties, have a right to marry. Yes, it’s possible that the Prop 8 drama of the past few years will come to very little after all, at least for now.
There are also standing issues in the DOMA case, but given the number of parties with a shot at standing, I’m guessing the Court will find that someone has standing – Edith Windsor herself, out all that money, sure seems like a good candidate. (If you’re interested in reading more about the standing issue, read this SCOTUSblog post by the reliably incisive Lyle Denniston.)
I’ll confess that I don’t know what the Court’s going to do with this unruly ganglion of cases. But the stakes just went way, way up, as did the degree of difficulty of legal analysis.
Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.
He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.
John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.
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Republican Governor Kristi Noem of South Dakota, a top potential Trump vice presidential running mate pick, revealed in a forthcoming book she “hated” her 14-month old puppy and shot it to death. Massive online outrage ensued, including accusations of “animal cruelty” and “cold-blooded murder,” but the pro-life former member of Congress is defending her actions and bragging she had the media “gasping.”
“Cricket was a wirehair pointer, about 14 months old,” Noem writes in her soon-to-be released book, according to The Guardian which reports “the dog, a female, had an ‘aggressive personality’ and needed to be trained to be used for hunting pheasant.”
“By taking Cricket on a pheasant hunt with older dogs, Noem says, she hoped to calm the young dog down and begin to teach her how to behave. Unfortunately, Cricket ruined the hunt, going ‘out of her mind with excitement, chasing all those birds and having the time of her life’.”
“Then, on the way home after the hunt, as Noem stopped to talk to a local family, Cricket escaped Noem’s truck and attacked the family’s chickens, ‘grabb[ing] one chicken at a time, crunching it to death with one bite, then dropping it to attack another’.”
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“Cricket the untrainable dog, Noem writes, behaved like ‘a trained assassin’.”
Except Cricket wasn’t trained. Online several people with experience training dogs have said Noem did everything wrong.
“I hated that dog,” Noem wrote, calling the young girl pup “untrainable,” “dangerous to anyone she came in contact with,” and “less than worthless … as a hunting dog.”
“At that moment,” Noem wrote, “I realized I had to put her down.”
“It was not a pleasant job,” she added, “but it had to be done. And after it was over, I realized another unpleasant job needed to be done.”
The Guardian reports Noem went on that day to slaughter a goat that “smelled ‘disgusting, musky, rancid’ and ‘loved to chase’ Noem’s children, knocking them down and ruining their clothes.”
She dragged both animals separately into a gravel pit and shot them one at a time. The puppy died after one shell, but the goat took two.
On social media Noem expressed no regret, no sadness, no empathy for the animals others say did not need to die, and certainly did not need to die so cruelly.
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But she did use the opportunity to promote her book.
We love animals, but tough decisions like this happen all the time on a farm. Sadly, we just had to put down 3 horses a few weeks ago that had been in our family for 25 years.
If you want more real, honest, and politically INcorrect stories that’ll have the media gasping,… pic.twitter.com/bKhpUkchHV
— Kristi Noem (@KristiNoem) April 26, 2024
Attorney and legal analyst Jeffrey Evan Gold says Governor Noem’s actions might have violated state law.
“You slaughtered a 14-month-old puppy because it wasn’t good at the ‘job’ you chose for it?” he asked. “SD § 40-1-2.3. ‘No person owning or responsible for the care of an animal may neglect, abandon, or mistreat the animal.'”
The Democratic National Committee released a statement saying, “Kristi Noem’s extreme record goes beyond bizarre rants about killing her pets – she also previously said a 10-year-old rape victim should be forced to carry out her pregnancy, does not support exceptions for rape or incest, and has threatened to throw pharmacists in jail for providing medication abortions.”
Former Trump White House Director of Strategic Communications Alyssa Farah Griffin, now a co-host on “The View” wrote, “There are countless organizations that re-home dogs from owners who are incapable of properly training and caring for them.”
The Lincoln Project’s Rick Wilson blasted the South Dakota governor.
“Kristi Noem is trash,” he began. “Decades with hunting- and bird-dogs, and the number I’ve killed because they were chicken-sharp or had too much prey drive is ZERO. Puppies need slow exposure to birds, and bird-scent.”
“She killed a puppy because she was lazy at training bird dogs, not because it was a bad dog,” he added. “Not every dog is for the field, but 99.9% of them are trainable or re-homeable. We have one now who was never going in the field, but I didn’t kill her. She’s sleeping on the couch. You down old dogs, hurt dogs, and sick dogs humanely, not by shooting them and tossing them in a gravel pit. Unsporting and deliberately cruel…but she wrote this to prove the cruelty is the point.”
Melissa Jo Peltier, a writer and producer of the “Dog Whisperer with Cesar Millan” series, also heaped strong criticism on Noem.
“After 10+ years working with Cesar Millan & other highly specialized trainers, I believe NO dog should be put down just because they can’t or won’t do what we decide WE want them to,” Peltier said in a lengthy statement. “Dogs MUST be who they are. Sadly, that’s often who WE teach them to be. And our species is a hot mess. I would have happily taken Kristi Noem’s puppy & rehomed it. What she did is animal cruelty & cold blooded murder in my book.”
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President Joe Biden gave an nearly-unannounced, last-minute, live exclusive interview Friday morning to Howard Stern, the SiriusXM radio host who for decades, from the mid-1990s to about 2015, was a top Trump friend, fan, and aficionado. But the impetus behind the President’s move appears to be a rare and unsigned statement from the The New York Times Company, defending the “paper of record” after months of anger from the public over what some say is its biased negative coverage of the Biden presidency and, especially, a Thursday report by Politico claiming Times Publisher A.G. Sulzberger is furious the President has refused to give the “Grey Lady” an in-person interview.
“The Times’ desire for a sit-down interview with Biden by the newspaper’s White House team is no secret around the West Wing or within the D.C. bureau,” Politico reported. “Getting the president on the record with the paper of record is a top priority for publisher A.G. Sulzberger. So much so that last May, when Vice President Kamala Harris arrived at the newspaper’s midtown headquarters for an off-the-record meeting with around 40 Times journalists, Sulzberger devoted several minutes to asking her why Biden was still refusing to grant the paper — or any major newspaper — an interview.”
“In Sulzberger’s view,” Politico explained, “only an interview with a paper like the Times can verify that the 81-year-old Biden is still fit to hold the presidency.”
But it was this statement that made Politico’s scoop go viral.
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“’All these Biden people think that the problem is Peter Baker or whatever reporter they’re mad at that day,’ one Times journalist said. ‘It’s A.G. He’s the one who is pissed [that] Biden hasn’t done any interviews and quietly encourages all the tough reporting on his age.'”
Popular Information founder Judd Legum in March documented The New York Times’ (and other top papers’) obsession with Biden’s age after the Hur Report.
1. The media turned Robert Hur’s amateur assessment of Biden’s memory into a political crisis.
Collectively, the @washingtonpost, @nytimes, and @WSJ have run 66 articles quoting Hur: a “well-meaning, elderly man with a poor memory”
But when the transcript of the Biden interview… pic.twitter.com/cExzjuKeYz
— Judd Legum (@JuddLegum) March 14, 2024
Thursday evening the Times put out a “scorching” statement, as Politico later reported, not on the newspaper’s website but on the company’s corporate website, not addressing the Politico piece directly but calling it “troubling” that President Biden “has so actively and effectively avoided questions from independent journalists during his term.”
Media watchers and critics pushed back on the Times’ statement.
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“NYT issues an unprecedented statement slamming Biden for ‘actively and effectively avoid[ing] questions from independent journalists during his term’ and claiming it’s their ‘independence’ that Biden dislikes, when it’s actually that they’re dying to trip him up,” wrote media critic Dan Froomkin, editor of Press Watch.
Froomkin also pointed to a 2017 report from Poynter, a top journalism site published by The Poynter Institute, that pointed out the poor job the Times did of interviewing then-President Trump.
Incidentally, when the NYT got a chance to interview Trump, they went belly up. https://t.co/fW5kx5868d pic.twitter.com/LbrhfYMtqf
— Dan Froomkin (PressWatchers.org) (@froomkin) April 25, 2024
Others, including former Biden Deputy Secretary of State Brian McKeon, debunked the Times’ claim President Biden hasn’t given interviews to independent journalists by pointing to Biden’s interviews with CBS News’ “60 Minutes” and a 20-minute sit-down interview with veteran journalist John Harwood for ProPublica.
Former Chicago Sun-Times editor Mark Jacob, now a media critic who publishes Stop the Presses, offered a more colorful take of Biden’s decision to go on Howard Stern.
This is the equivalent of putting a bag of dog poop on the New York Times’ doorstep and setting it on fire. https://t.co/RhGbHH9pU2
— Mark Jacob (@MarkJacob16) April 26, 2024
The Times itself just last month reported on a “wide-ranging interview” President Biden gave to The New Yorker.
Watch the video and read the social media posts above or at this link.
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Donald Trump’s Friday morning claim Manhattan’s Criminal Courts Building is “heavily guarded” so his supporters cannot attend his trial was torched by a top CNN anchor. The ex-president, facing 34 felony charges in New York, had been urging his followers to show up and protest on the courthouse steps, but few have.
“I’m at the heavily guarded Courthouse. Security is that of Fort Knox, all so that MAGA will not be able to attend this trial, presided over by a highly conflicted pawn of the Democrat Party. It is a sight to behold! Getting ready to do my Courthouse presser. Two minutes!” Trump wrote Friday morning on his Truth Social account.
CNN’s Kaitlan Collins supplied a different view.
“Again, the courthouse is open the public. The park outside, where a handful of his supporters have gathered on trials days, is easily accessible,” she wrote minutes after his post.
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Trump has tried to rile up his followers to come out and make a strong showing.
On Monday Trump urged his supporters to “rally behind MAGA” and “go out and peacefully protest” at courthouses across the country, while complaining that “people who truly LOVE our Country, and want to MAKE AMERICA GREAT AGAIN, are not allowed to ‘Peacefully Protest,’ and are rudely and systematically shut down and ushered off to far away ‘holding areas,’ essentially denying them their Constitutional Rights.”
On Wednesday Trump claimed, “The Courthouse area in Lower Manhattan is in a COMPLETE LOCKDOWN mode, not for reasons of safety, but because they don’t want any of the thousands of MAGA supporters to be present. If they did the same thing at Columbia, and other locations, there would be no problem with the protesters!”
After detailing several of his false claims about security measures prohibiting his followers from being able to show their support and protest, CNN published a fact-check on Wednesday:
“Trump’s claims are all false. The police have not turned away ‘thousands of people’ from the courthouse during his trial; only a handful of Trump supporters have shown up to demonstrate near the building,” CNN reported.
“And while there are various security measures in place in the area, including some street closures enforced by police officers and barricades, it’s not true that ‘for blocks you can’t get near this courthouse.’ In reality, the designated protest zone for the trial is at a park directly across the street from the courthouse – and, in addition, people are permitted to drive right up to the front of the courthouse and walk into the building, which remains open to the public. If people show up early enough in the morning, they can even get into the trial courtroom itself or the overflow room that shows near-live video of the proceedings.”
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Noem Defends Shooting Her 14-Month Old Puppy to Death, Brags She Has Media ‘Gasping’
President Hands Howard Stern Live Interview After NY Times Melts Down Over Biden Brush-Off
CNN Smacks Down Trump Rant Courthouse So ‘Heavily Guarded’ MAGA Cannot Attend His Trial
‘Assassination of Political Rivals as an Official Act’: AOC Warns Take Trump ‘Seriously’
Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’
OPINION2 days agoPresident Hands Howard Stern Live Interview After NY Times Melts Down Over Biden Brush-Off
OPINION2 days agoNoem Defends Shooting Her 14-Month Old Puppy to Death, Brags She Has Media ‘Gasping’
News3 days agoCNN Smacks Down Trump Rant Courthouse So ‘Heavily Guarded’ MAGA Cannot Attend His Trial