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Not the best dad, according to NOM
Quote of the day, from the Associated Press:
"You're looking at what is the best course societywide to get you the optimal result in the widest variety of cases. That often is not open to people in individual cases. Certainly adoption in families headed, like Chief Roberts' family is, by a heterosexual couple, is by far the second-best option," said John Eastman, chairman of the National Organization for Marriage. Eastman also teaches law at Chapman University law school in Orange, Calif.
Because when you're less than two weeks out from arguing cases related to marriage and raising children, the thing to do is viciously and cruelly insult the Chief Justice's family, right?

UPDATE: Chris Johnson from the Washington Blade is at CPAC and just asked NOM's president Brian Brown about the comments. He deflected the question, naturally.

More from Justin Snow at Metro Weekly:


Hollingsworth v. Perry, the Prop 8 case, will be reviewed by the Supreme Court. The Justices have added a question regarding whether the proponents of Prop 8 have legal standing to be in federal court under Article III of the Constitution. In the end the addition of this question could mean that the Court has no authority to decide whether or not Prop 8 violates the Constitution. In the event that they can't hear the case, Prop 8 would remain struck down but it may only be inapplicable as to the people named in the injunction: the plaintiffs and two county clerks. (At oral argument at the Ninth Circuit, David Boies suggested that if that were to happen, he would sue in the state of California for uniformity in the non-enforcement of Prop 8. But there would be no decision beyond the state of California.)

That would not be the final word, though. There are now two cases - one from Nevada and another from Hawaii - that are similar in a lot of ways to the Prop 8 case and involve many of the same issues: a state allows its gay and lesbian citizens to have most of the same rights associated with marriage but denies them the word. Both are federal challenges. And both reach the Ninth Circuit on appeal after the plaintiffs (same-sex couples) lost in the district court.

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So this is fun. The House GOP has maxed out on its spending cap in defense of DOMA. (Since that report, they suffered another defeat in a court of appeals and that case is headed to the Supreme Court.)

Since they are lacking in funds to support their (thus far unanimously unsuccessful) endeavors, they have started appealing to judges for requests to either stay or postpone cases or, in the latest instance, to appear in a hearing via telephone. That's what they did in Cooper-Harris v. USA, a case based in federal court in California.

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Crossposted at Prop 8 Trial Tracker

The Supreme Court docket page for Hollingsworth v. Perry, the Prop 8 case, has a new notice that the case has been "DISTRIBUTED for Conference of September 24, 2012." The September 24 conference is the first time this term that the Justices will meet privately and look at petitions for certiorari to decide which cases they will accept for review. Usually, the Court announces its orders from conferences on the Monday following the conferences, however if they do take up the Prop 8 case on September 24, they could announce as early as the next day whether the full Court will review the case. It takes four votes to grant review.

If the Court denies the petition, the Ninth Circuit Court of Appeals' decision stands, and Proposition 8 will be invalidated, though the case won't set a nationwide precedent. If they decide to review the case, they'll reach a final decision on the merits at the end of June 2013.

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Crossposted at Prop 8 Trial Tracker and The Huffington Post

The plaintiffs in the Prop 8 case Hollingsworth v. Perry filed their opposition brief to the proponent's petition for a writ of certiorari to the Supreme Court. The plaintiffs, as expected, oppose Supreme Court review of this case, writing that "this Court’s traditional standards for the exercise of certiorari jurisdiction lead inexorably to the conclusion that this Court’s review is not warranted."

While suggesting that "the question whether the States may discriminate against gay men and lesbians in the provision of marriage licenses is the defining civil rights issue of our time" and that in some ways this case is "an attractive vehicle for approaching" the issue, review is nonetheless unwarranted because the Ninth Circuit's decision does not "conflict with any decision of this Court or any decision of a court of appeals or state court of last resort." The filing also argues that the Ninth Circuit applied Romer v. Evans properly to the circumstances set out in the state of California.

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Crossposted at Prop 8 Trial Tracker

Aranas v. Napolitano is a challenge to Section 3 of the Defense of Marriage Act that was filed in July by the Center for Human Rights and Constitutional Law. It is a class-action suit alleging DOMA's unconstitutionality under the Fifth Amendment's due process and equal protection guarantees as applied to immigration, and: "The complaint claims denial of immigration visas violates another statute as well, “8 U.S.C. § 1152(a)(2), which prohibits discrimination in the issuance of visas based upon a petitioner’s or an immigrant visa beneficiary’s “sex.”"

The plaintiffs have filed a motion for class certification, which would allow all plaintiffs to join as a class-action lawsuit. The class for which they are seeking certification is: "All members of lawful same-sex marriages whom the Department of Homeland Security, pursuant to § 3 of the Defense of Marriage Act, 1 U.S.C.§ 7, has refused or will refuse to recognize as spouses for purposes of conferring lawful status and related benefits under the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq." The filing notes that "[d]efendants stated they decline to take a position on this motion until after they have had an opportunity to review plaintiffs' moving papers." Defendants will have the opportunity to object to allowing the suit to proceed as a class-action.

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The Second Circuit has just denied the request by the Bipartisan Legal Advisory Group (BLAG), who is defending Section 3 of DOMA on behalf of House Republicans, to halt oral argument in Windsor v. USA. House Republicans had asked the court to put arguments on hold because:

they “anticipate” the Supreme Court will decide whether to review the case fairly soon after oral argument at the Second Circuit. “[I]t is likely,” they write, “that the Supreme Court will act on the above petitions – including the petition in this case – in early October, a very short period of time after September 27, when oral argument in this case currently is scheduled."
And Windsor, in her reply brief, told the court that, it is:
“vitally important that the Second Circuit be heard on this issue and be heard as expeditiously as possible in order to ensure that legally married same-sex couples in New York, Connecticut, and Vermont are protected from the daily unconstitutional burdens and indignities imposed by DOMA” and “this Court may provide important guidance to other courts throughout the country (as well as the Supreme Court) on the appropriate level of scrutiny for laws that discriminate on the basis of sexual orientation.”
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The past few weeks have seen a flurry of new developments in the courts concerning DOMA and marriage equality cases. The proponents of Prop 8 - in Perry, the challenge to the California constitutional amendment - petitioned the Supreme Court to review the case. Section 3 of DOMA was struck down yet again, this time by Judge Vanessa Bryant, an appointee of President George W. Bush, in Pedersen v. Office of Personnel Management. And the Bipartisan Legal Advisory Group (BLAG), who is defending Section 3 of DOMA on behalf of House Republicans after the Justice Department decided to drop their defense, has lost a few requests for stays of proceedings in some DOMA cases. The sheer number of these cases can cause a lot of confusion and headaches; I'm told that even people who are solely focused on following DOMA cases are resorting to the use of spreadsheets to keep track of everything. So here is a series that is intended to be a rundown of where these cases stand after the latest developments. (Also, see jpmassar's excellent post from a few months ago; mine is just a follow-up to his post.)

This part will consist of cases that are currently before the Supreme Court. Since at this point only DOMA challenges and the Prop 8 challenge are before the Court, this post will focus primarily on DOMA. Future posts will be geared toward updates in the district and appeals courts, and those will include both DOMA and marriage equality cases.

A note regarding the cases that are currently before the Supreme Court: the Court is not in session until October. There will be a conference (to look at petitions for certiorari and vote on whether to review cases or not) on September 24 and another the following week. During a conference, either in late September or early October, the Court will decide whether to hear challenges to Section 3 of DOMA, and which cases it will review. Instead of writing this at the end of all the case updates on this post, I'll leave it up here as a note; so just assume that the Supreme Court will decide whether and which cases to hear on these dates.

Gill v. Office of Personnel Management/Massachusetts v. Department of Health and Human Services

The Gill and Massachusetts cases were decided separately by the same district court judge, Nixon appointee Joseph Tauro, and then consolidated on appeal. Gill was filed by Gay and Lesbian Advocates and Defenders (GLAD) and Massachusetts was filed by Massachusetts Attorney General Martha Coakley. In both cases, Judge Tauro struck down Section 3 of DOMA. (GLAD said it violated the equal protection principles in the Fifth Amendment and Massachusetts said it violated the Tenth Amendment and the Spending Clause. Judge Tauro agreed.) At the First Circuit, on appeal, GLAD, the Justice Department and the Massachusetts AG's office opposed the law; Paul Clement argued in favor of upholding the law, for BLAG. Notably, the oral argument at the First Circuit was the first time the Justice Department suggested that they were not going to defend Section 3 of DOMA "on any basis." Before, as per Attorney General Eric Holder's letter explaining the Government's decision to stop defending Section 3, the Government had agreed that Section 3 would pass the most lenient form of judicial scrutiny, rational basis. They had explained they favor application of a heightened form of judicial scrutiny, however, and Section 3 of DOMA easily fails that test. At the First Circuit, the Justice Department would not defend the law, even if it were scrutinized using the rational basis test.

The three-judge panel at the First Circuit, consisting of two Republican-appointed judges and one Democratic-appointed judge, unanimously struck down Section 3 of DOMA as unconstitutional. Their decision applied a form of rational basis review that looks closely at laws that could be perceived to have been enacted with "animus" against a particular group, and they considered federalism concerns important in their review of the law as well.

On June 29, BLAG petitioned the Supreme Court for certiorari, asking them to review the First Circuit's opinion.

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The judge hearing the Southern Poverty Law Center's challenge to Section 3 of the Defense of Marriage Act has just denied the Bipartisan Legal Advisory Group's (BLAG) request to stay the proceedings. BLAG, who is defending the law on behalf of House Republicans, had asked the court to stay the case over a month ago, because another DOMA challenge (Golinski v. Office of Personnel Management) was being fast-tracked at the Ninth Circuit Court of Appeals.

Tracey Cooper-Harris is a military servicemember who was diagnosed with multiple sclerosis, and likely got it as a result of her service. She is now being denied spousal benefits under DOMA, even though she is in a legal marriage.

The judge discussed the relevant factors to consider in a motion to stay proceedings, laid out previously in the case Lockyer v. Mirant Corp., “1) damage that could result from granting the stay; 2) hardship that may result if the stay is denied; and 3) following an “orderly course of justice” measured in the simplification or complication of “issues, proof, and questions of law” that may result from a stay being granted[.]” The judge denied the stay of proceedings, writing that, “After weighing the Lockyer factors, the Court DENIES the Advisory Group’s Motion to Stay Proceedings.” The case will continue along its normal path and the district court will issue a decision on the merits.
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Cross-posted at Prop 8 Trial Tracker

Earlier this month, the Bipartisan Legal Advisory Group (BLAG) who is defending DOMA in court challenges, noted in a filing that they would be petitioning the Supreme Court for certiorari, or review, by the end of the month. Today BLAG filed its petition. A petition for certiorari is the first attempt to frame the issues the Supreme Court will decide. Petitions have a list of "Questions Presented" that the Supreme Court may or may not decide to hear. (The Supreme Court can also add its own question(s) and possibly ask for briefing on any additional issues.) The questions presented here are:

(1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and

(2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review

The "previously unknown" standard of review the petition cites refers to the First Circuit's rational basis review that included both a more searching form of review that regarded laws which might be based on animus toward a particular group as suspicious, as well as a stronger focus on DOMA's impact on federalism.
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That would be Bryan Fischer of the American Family Association. The AFA is a known hate group and Fischer himself has made comments such as:

- "The homosexual agenda represents the single greatest modern threat to freedom of religion and conscience.”

- "The homosexual agenda represents a clear and present danger to virtually every fundamental right given to us by our Creator and enshrined for us in our Constitution."

- “Ladies and gentlemen, they [gay people] are Nazis (see video at :24). Do not be under any illusions about what homosexual activists will do with your freedoms and your religion if they have the opportunity. They’ll do the same thing to you that the Nazis did to their opponents in Nazi Germany.”

GLAAD's Commentator Accountability Project has more on Fischer.

I guess this shouldn't be surprising. After all, anti-gay groups have been using racist tactics for so long it's easy to see this stuff under the surface.

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Today's the primary in North Carolina, and it's also the day people are voting for or against Amendment 1 in the state. The amendment says that the "only domestic legal union" that would be "valid or recognized" in North Carolina is marriage between a man and a woman. The ballots say for/against, not yes/no as I previously reported. An "against" vote is a vote against adding that anti-gay language, and a "for" vote is a vote for adding it into the state constitution and eliminating existing domestic partnerships for gay and straight couples, and erasing the possibility of civil unions or marriage equality in the future. Importantly, North Carolina law already bans marriage equality, so this amendment is unnecessary to accomplish that goal.

In short, it's "just an act of meanness."

Over at Prop 8 Trial Tracker, we will be providing coverage throughout the day and the rest of the night after the polls close. The P8TT/Courage team is on the ground in North Carolina.

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