House Republicans Ask Supreme Court To Preserve ‘A Traditional Male-Female Couple,’ Uphold DOMA | ThinkProgress

Next year, the Supreme Court will have its first opportunity to weigh in on same-sex marriage, as House Speaker John Boehner (R-OH) has filed an appeal in one of the many cases in which the Defense of Marriage Act has been found unconstitutional. Though numerous cases are advancing, House Republicans appealed the pair of cases from the First Circuit: Gill v. Office of Personnel Management and Massachusetts v. HHS. In the filing, Boehner’s attorneys continue to ignore the reality of same-sex families, arguing that Congress did nothing to harm or discriminate against them:

DOMA does not bar or invalidate any marriages but leaves states free to decide whether they will recognize same-sex marriage. Section 3 of DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition which “governs only federal programs and funding.”

Congress, of course, did not invent the meanings of “marriage” and “spouse” in 1996. Rather, DOMA merely reaffirmed and codified the traditional definition of marriage, i.e. what Congress itself has always meant — and what courts and the executive branch have always understood it to mean — in using these words: a traditional male-female couple.

House Republicans Ask Supreme Court To Preserve ‘A Traditional Male-Female Couple,’ Uphold DOMA | ThinkProgress.

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How will Doma fare in front of the US supreme court? | Scott Lemieux | Comment is free | guardian.co.uk

On 31 May, a three-judge panel of the first circuit court of appeals held a key provision of the Defense of Marriage Act (Doma) unconstitutional. It is nearly certain, however, that the case will be headed to the supreme court, and because the decision was stayed pending appeal, it will not even apply in the New England states covered by the first circuit.

So, the key question is: what will the supreme court will do when it hears the case?

The first circuit opinion, written by widely respected Republican appointee Michael Boudin, had a decidedly conservative cast that makes surviving a supreme court appeal more likely. We can assess the potential votes in descending order of certainty.

via How will Doma fare in front of the US supreme court? | Scott Lemieux | Comment is free | guardian.co.uk.

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How will Doma fare in front of the US supreme court? | Scott Lemieux | guardian.co.uk

On 31 May, a three-judge panel of the first circuit court of appeals held a key provision of the Defense of Marriage Act (Doma) unconstitutional. It is nearly certain, however, that the case will be headed to the supreme court, and because the decision was stayed pending appeal, it will not even apply in the New England states covered by the first circuit.

So, the key question is: what will the supreme court will do when it hears the case?

The first circuit opinion, written by widely respected Republican appointee Michael Boudin, had a decidedly conservative cast that makes surviving a supreme court appeal more likely. We can assess the potential votes in descending order of certainty.

The Democratic appointees

Every member of the court’s relatively liberal wing – represented by the Clinton appointees Stephen Breyer and Ruth Bader Ginsburg, and the Obama appointees Sonia Sotomayor and Elena Kagan – is virtually certain to support the first circuit opinion ruling Doma unconstitutional. Breyer and Ginsburg have voted to accept gay and lesbian rights claims during the much less favorable political circumstances that led to Doma’s passage; they will not waver.

Sotomayor and Kagan do not have a track record on gay and lesbian rights per se, but as the Obama administration‘s refusal to defend the act’s constitutionality indicates, there is a near-consensus among mainstream liberals that Doma does not pass constitutional muster. The litigants challenging Doma start with four votes in the bank, and will need only one of the court’s five Republican nominees to prevail.

The Republican no-hopers

These votes are exceedingly unlikely, however, to come from Justices Antonin Scalia or Samuel Alito. While Scalia is not a completely reliable vote for Republican interests, his attitude towards gay and lesbian rights can be seen in his dissents, liberally salted with rightwing antigay buzzwords, in Romer v Evans and Lawrence v Texas. He can safely be written off by opponents of Doma’s constitutionality. Justice Alito has yet to vote in a major gay and lesbian rights case but is the court’s most consistent Republican party-liner, and is similarly unlikely to surprise.

via How will Doma fare in front of the US supreme court? | Scott Lemieux | Comment is free | guardian.co.uk.

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