The Obama administration's brief in the Supreme Court's DOMA case.

Lyle Denniston summarizes the briefs filed yesterday in United States v.Windsor — the case attacking the federal law that excludes same-sex couples, married under state law, from being treated as married for the purposes of federal benefits and tax laws.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians.  Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.”  And Friday’s brief defended that approach energetically.



This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court.  The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard.  “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.”  While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”

More detail about the argument for heightened scrutiny at the link, and you can read the whole brief here (PDF).

There's a second pending Supreme Court case dealing with California's Proposition 8, and although the administration hasn't filed a brief in that case, the brief Windsor refers to Prop 8 as it makes the argument for heightening scrutiny, which — under standard equal protection doctrine — looks at a number of factors including whether a group has been excluded from political power.  From the brief:

Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action....

[There is no] convincing record of political power rendering protection unnecessary.

The brief cites various recent successful political efforts against same-sex marriage, including this footnoted reference to Prop 8:

By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage.... In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.

My guess is the Court won't heighten scrutiny, but it will find an equal protection violation in both of the cases. I predict a 6-3 decision.

"Obama Will Include Same-Sex Couples In Immigration Plan."

That's your cue, Republicans, to say something stupid. He's roping you in. Come on. You can't resist!

"Today we continue a never-ending journey, to bridge the meaning of [the words of the Declaration of Independence] with the realities of our time."

The words President Obama had just quoted, in his Inaugural Address, were: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness."

More from the text of the speech:

For history tells us that while these truths may be self-evident, they have never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth.  

God! God is well-represented in this speech. In addition to that "gift from God" (and "their Creator"), there's:

We are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American, she is free, and she is equal, not just in the eyes of God but also in our own....

We cannot cede to other nations the technology that will power new jobs and new industries – we must claim its promise.  That is how we will maintain our economic vitality and our national treasure – our forests and waterways; our croplands and snowcapped peaks.  That is how we will preserve our planet, commanded to our care by God....

My fellow Americans, the oath I have sworn before you today, like the one recited by others who serve in this Capitol, was an oath to God and country, not party or faction – and we must faithfully execute that pledge during the duration of our service....

Thank you, God Bless you, and may He forever bless these United States of America.

God is the source of our rights, God makes us stewards of the environment, public servants swear oaths to God, and the blessings of God are requested.

Obama also dealt with the question of federalism, the role of federal power. There are the things we do "together," he said, listing matters that call for uniform national policy: providing for "railroads and highways to speed travel and commerce," "schools and colleges to train our workers, regulation of the "free market... to ensure competition and fair play," "care for the vulnerable," and "protect[ion] ... from life’s worst hazards and misfortune."

But then he gives attention to some conservative ideas, "skepticism of central authority," rejection of "the fiction that all society’s ills can be cured through government alone," "celebration of initiative and enterprise," and "insistence on hard work and personal responsibility."

Turning back to the left, he asserts that "preserving our individual freedoms ultimately requires collective action." Collective action is needed "Now, more than ever," he says: "My fellow Americans, we are made for this moment, and we will seize it – so long as we seize it together." Made for this moment? That's an odd phrase, echoed later with "That is what this moment requires," which comes after vague references to "outworn programs, and the need to "harness new ideas and technology," to fix: 1. "our government," 2. "our tax code," and 3. "our schools." Nothing particularly "this moment" about any of that, so this "moment" theme fizzled. Maybe it was an incorporation by reference to his huge "This is the moment" speech from June 2008.

There's more to the speech — attention to the environment, national security, "our gay brothers and sisters," and so forth, and it finally comes back to the Declaration of Independence material. We need to "lift" our "voices... in defense of our most ancient values and enduring ideals" and "embrace... our lasting birthright... of freedom."

Was Giglio chosen for the inauguration benediction in order to provide cover for Chuck Hagel?

"An evangelical pastor from Atlanta [Rev. Louie Giglio] announced Thursday that he would not give the benediction at President Obama’s swearing-in ceremony after a sermon he gave on homosexuality in the mid-1990s resurfaced earlier this week."

Suspicion: Giglio was chosen with full knowledge of that sermon and the intention that it would "resurface" and that he would then conspicuously withdraw. This would promote Obama's pro-gay stance and take the heat off Chuck Hagel, who's got an anti-gay remark in his record which the Obama people would like to submerge. It was all planned: the desire for Hagel to become Secretary of Defense, the known problem of his anti-gay remark, the desire to perform a conspicuous expiation, the identification of Giglio as a plausible benediction-giver with an anti-gay remark in his history, choosing Giglio, revealing the old Giglio sermon, Giglio bowing out in a tribute to Obama's rejection of homophobia, Hagel saved by the scapegoat.

I'm not saying I believe this is what happened, and I certainly have no inside knowledge. I'm just noticing the correlations and putting together a hypothesis. Please discuss.

You can pull me back from this suspicion if you make a great case for why else Giglio would have been chosen for this honor. He's a white male, by the way.

"Tonight is the greatest night in the history of the gay rights movement."

"Gay marriage is being legalized in at least two, probably three states, the first time ever in the US it's been legalized by a popular vote rather than by courts or the legislature. Wisconsin elected the first openly gay Senator ever. And, maybe most importantly, the first pro-gay president ever has been re-elected. Because of Obama's re-election, the entire Democratic party will be openly pro-gay marriage, forever and without equivocation. Obama has proven that you can be truly pro-gay and win, and this will have a permanent effect on the entire Democratic party. This is a major turning point for gay rights, and a great contrast to 2008, when we had Obama but also Prop 8."

My son Chris wrote on Facebook last night.

"What I think is funny is that if you have the same view on gay marriage that Obama had when he was elected, now you’re an enemy of humanity or something."

"It’s some sort of, I don’t know, Liberal Fascism or something...." — says Instapundit, aptly, re Chick-Fil-A and Chicago.

And here's Eugene Volokh on the obviousness of the First Amendment violation.

"Chick-fil-A values are not Chicago values," said Rahm Emanuel, ironically demonstrating that Chicago values are not American values.

ADDED: Right now, at Drudge:



(Click image to enlarge. The small text in the upper left says: "Rahm Rejects CHICK-FIL-A: 'Not Chicago Values.'"

"The Ninth Circuit U.S. Court of Appeals on Tuesday declined to rehear arguments over California's ban on gay marriage..."

"... which the court invalidated in February. The decision sends the case on a trajectory to the U.S. Supreme Court."

There were 3 dissenting votes on an "en banc" panel of 11 judges. Here's a PDF of today's order.  The dissenting opinion, from O'Scannlain, Bybee, and Bea said:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”

Today our court has silenced any such respectful conversation.
Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.

For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc

"On The Glenn Show, Glenn [Loury] and Ann discuss the politics of President Obama's recent endorsement of gay marriage."

"The two professors, both of whom have gay sons, defend the religious opponents of gay marriage against the charge of 'bigotry.' They argue that religion can be a force for positive social change, such as during the civil rights movement. Ann laments that politicians so often feel they must demonize their opponents, and Glenn defends Mitt Romney's background in private equity. Ann and Glenn compare the Occupy movement with the Tea Party and find the former lacking. Finally, they celebrate 'the leisure of the theory class' and compare their different approaches to vacationing." (Hyperlinks to the specific items here.)

NYT/CBS poll: 67% think Obama came out for SSM for political reasons.

"Most Americans suspect that President Obama was motivated by politics, not policy, when he declared his support for same-sex marriage, according to a poll released on Monday, suggesting that the unplanned way it was announced shaped public attitudes."

You mean if it had seemed more planned, it would have looked less political? I think they planned it to look unplanned so it would seem less political, and the 67% opinion would be even higher if they hadn't created the appearance that it was not planned.

But why plan — why deliberately take the position that most Americans reject?

About 4 in 10, or 38 percent, of Americans support same-sex marriage, while 24 percent favor civil unions short of formal marriage. Thirty-three percent oppose any form of legal recognition. When civil unions are eliminated as an option, opposition to same-sex marriage rises to 51 percent, compared with 42 percent support.

And why do people think he's being political if he's taking the position that's rejected?

Mr. Obama’s team is counting on the notion that whatever he might lose in votes or intensity of support will be offset by increased excitement among young voters and his liberal base....

Much of the analysis at the link is about Obama's campaign for reelection. But the survey was of American adults — not voters or even likely voters. 

"If we consider this to be a civil right, and I do, I don’t think civil rights ought to be left up to a state-by-state approach."

"I think we should have a national policy on this."

Here comes the pull from the left on same-sex marriage. That's James Clyburn, who ranks 3rd among Democrats in the House.

Marriage is actually unusually hard to handle at the state level — which was why Congress passed the Defense of Marriage Act. If any state permits same-sex marriage, couples who want to marry can travel to that state. Are you going to allow individual states to decide whether to recognize that marriage? DOMA was a decision to say yes, but Obama has said he believes DOMA to be unconstitutional, and he withdrew from defending it in court. Presumably, in appointing federal judges, he hopes to find individuals who share that legal opinion. And the federal government uses marriage status for many purposes. It must either accept the same-sex marriages from the states or not.

So the federalism solution really doesn't work. I know I said — just this morning — that "Leave it to the states is a fine — truly excellent — way to package the issue and set it to the side." It's not as though I'm not aware of the legal problem. I teach the topic in law school classes frequently. It's only that I think the issue can be politically packaged that way. But I must acknowledge that a truly probing questioner would succeed in opening that package back up, and Clyburn is encouraging that inquiry.

Why Republicans should resist using the same-sex marriage issue against Obama.

You may think you have a useful issue, and it is of some use, but here's the problem. Making same-sex marriage an important issue will give rise to the thought: If Obama loses, it will be because of the stand he took on same-sex marriage. That will cause some people – people in the middle who might go either way — to think:

I don't want to be a part of sending the message that if you support same-sex marriage, you will lose. I'm going to vote for him, not because he did anything that significant in finally getting around to evolving into the position, but because, now that he has, I don't want him punished for it. I'm afraid of how that will affect other politicians in other elections for who-knows-how-many years into the future. I wouldn't have been a single-issue voter on this, but now that it's been centralized as an issue, I don't want it to be remembered as the reason why Obama lost. 

Think back to 2008. Why did people vote for Obama? You might suggest: People got too enthusiastic about the idea of the first black President and that kept them from looking deeply enough into whether Obama had sufficient experience or whether he was too far to the left. But another way of thinking about that is: At some point, people didn't want it to seem that what had happened was that Americans rejected him because he is black. They didn't want to be part of creating the message that if you are black, you will lose. I'm not saying that was rational. I'm talking about the emotional pull people feel, an urge that goes unexamined.

The issues in this election should have to do with economics, foreign policy, and the things that fall squarely within a President's responsibility. Obama has a record here, and he should have to defend it, not distract us with a "social" issue. His actual political policy on same-sex marriage isn't even different from Romney's: Leave it to the states. Leave it to the states is a fine — truly excellent — way to package the issue and set it to the side. I would encourage Republicans to do exactly that:

Marriage has long been a matter that belongs to states. Both Obama and Romney know that and know that it is not what the U.S. Presidency is about. They do not differ on the actual policy. It's good that Obama has expressed respect for federalism here. If only he would see the value of federalism more generally instead of continually enlarging the role of the federal government. Let's look at his record of growing federal government at the expense of state and local government and at the expense of private entrepreneurship....

ADDED: The "truly excellent" package won't necessarily stay closed.

MTP discussion on Obama's SSM evolution... beginning with an SNL sketch.

Visit msnbc.com for breaking news, world news, and news about the economy

ADDED: And here's the Newsweek cover:



"The First Gay President"... like Clinton was "the first black President."

AND: That cover... what does it remind me of....



Remember the old Tinky-Winky-Is-Gay controversy? That's the kind of thing that makes me wish I started blogging earlier:

Tinky Winky started a still hinted-at controversy in 1999 because of his carrying a bag that looks much like a woman's handbag (although he was first "outed" by the academic and cultural critic Andy Medhurst in a letter of July 1997 to The Face). He aroused the interest of Jerry Falwell in 1999 when Falwell alleged that the character was a "gay role model". Falwell issued an attack in his National Liberty Journal, citing a Washington Post "In/Out" column which stated that lesbian comedian Ellen DeGeneres was "out" as the chief national gay representative, while trendy Tinky Winky was "in." He warned parents that Tinky Winky could be a covert homosexual symbol, because "he is purple, the gay pride colour, and his antenna is shaped like a triangle: the gay pride symbol."

The BBC, who co-produced the programme, made an official response, "Tinky Winky is simply a sweet, technological baby with a magic bag." Ken Viselman of Itsy-Bitsy Entertainment, who distributed the show in the USA, commented, "He's not gay. He's not straight. He's just a character in a children's series.

"Why Gay Rights May Be President Obama’s Biggest Legacy."

Don't tell me. Because everything else is so small?

"While it’s great to listen to your kids’ ideas, there’s also a time when dads simply need to be dads."

"In this case, it would’ve been helpful for him to explain to Malia and Sasha that while her friends parents are no doubt lovely people, that’s not a reason to change thousands of years of thinking about marriage. Or that — as great as her friends may be — we know that in general kids do better growing up in a mother/father home. Ideally, fathers help shape their kids’ worldview."

Said Bristol Palin.

The day after Obama evolved, WaPo rolls out a Romney-bullied-a-gay-guy story.

This supposedly happened in high school in 1965:

John Lauber, a soft-spoken new student one year behind Romney, was perpetually teased for his nonconformity and presumed homosexuality. Now he was walking around the all-boys school with bleached-blond hair that draped over one eye, and Romney wasn’t having it.

“He can’t look like that. That’s wrong. Just look at him!” an incensed Romney told Matthew Friedemann, his close friend in the Stevens Hall dorm, according to Friedemann’s recollection....

A few days later, Friedemann entered Stevens Hall off the school’s collegiate quad to find Romney marching out of his own room ahead of a prep school posse shouting about their plan to cut Lauber’s hair. Friedemann followed them to a nearby room where they came upon Lauber, tackled him and pinned him to the ground. As Lauber, his eyes filling with tears, screamed for help, Romney repeatedly clipped his hair with a pair of scissors.

The incident was recalled similarly by five students, who gave their accounts independently of one another....

Romney declined an interview, and a spokeswoman said "The stories of fifty years ago seem exaggerated and off base and Governor Romney has no memory of participating in these incidents."

Another story:

In an English class, Gary Hummel, who was a closeted gay student at the time, recalled that his efforts to speak out in class were punctuated with Romney shouting, “Atta girl!” In the culture of that time and place, that was not entirely out of the norm. Hummel recalled some teachers using similar language.

ADDED: Obama bullied a black girl:

Her name was Coretta, and before my arrival she had been the only black person in our grade. She was plump and dark and didn’t seem to have many friends. From the first day, we avoided each other but watched from a distance, as if direct contact would only remind us more keenly of our isolation.

Finally, during recess one hot, cloudless day, we found ourselves occupying the same corner of the playground. I don’t remember what we said to each other, but I remember that suddenly she was chasing me around the jungle gyms and swings. She was laughing brightly, and I teased her and dodged this way and that, until she finally caught me and we fell to the ground breathless. When I looked up, I saw a group of children, faceless before the glare of the sun, pointing down at us.

“Coretta has a boyfriend! Coretta has a boyfriend!”

The chants grew louder as a few more kids circled us.

“She’s not my g-girlfriend,” I stammered. I looked to Coretta for some assistance, but she just stood there looking down at the ground. “Coretta’s got a boyfriend! Why don’t you kiss her, mister boyfriend?”

“I’m not her boyfriend!” I shouted. I ran up to Coretta and gave her a slight shove; she staggered back and looked up at me, but still said nothing. “Leave me alone!” I shouted again. And suddenly Coretta was running, faster and faster, until she disappeared from sight. Appreciative laughs rose around me. Then the bell rang, and the teachers appeared to round us back into class. 

"Dreams from My Father: A Story of Race and Inheritance."

UPDATE: Romney apologizes:

"I did some dumb things and if anybody was hurt by that or offended ... obviously I apologize," Romney said on Kilmeade & Friends, a radio show....

"I don't remember that incident and I'll tell you I certainly don't believe that I ... thought the fellow was homosexual," Romney said. "That was the furthest thing from my mind back in the 1960s, so that was not the case."

Biden "probably got out a little bit over his skis."

Said Obama, noting that Biden did "out of generosity of spirit" and "But all's well that ends well."

By the way, does anyone think this was all planned, that Biden was sent out to make what would appear to be a gaffe to create the occasion for Obama to seem to need to come forward on this issue?

ADDED: Please vote:

Was Biden's gaffe really a gaffe?
	Yes, he's gaffe-prone and suffers from a good heart. End of story.
	No, it was, as described above, a faux gaffe.
pollcode.com free polls

"I don't think the argument for gay rights should hinge on whether you're gay or you know someone who is gay."

"If something is actually bad or morally wrong, you don't try to promote it by talking about the person in your family who does it. You may notice that I've been writing in support of same-sex marriage on this blog for more than 7 years, and I don't think I've ever bolstered the argument with anecdotes of personal experience. In fact, I think it cheapens the argument to blend that in."

That's what I wrote in September 2011, back when Dick Cheney clearly stated his support for same-sex marriage. A reader emailed me that in connection with Obama's statement about same-sex marriage, which was thoroughly bolstered with references to the real people he knows:

I've thought about members of my staff in long-term, committed, same-sex relationships who are raising kids together. Through our efforts to end the "Don't Ask, Don't Tell" policy, I've gotten to know some of the gay and lesbian troops who are serving our country with honor and distinction....

Even at my own dinner table, when I look at Sasha and Malia, who have friends whose parents are same-sex couples, I know it wouldn't dawn on them that their friends' parents should be treated differently.

Do our moral values take shape around the activities of the people we happen to know?

"This interview was conducted by two African-Americans, a man and a woman. It was a subtle touch. And a profound one."

That's Andrew Sullivan telling us about "One small thing I only really noticed until tonight" [sic].

Oh, good lord. What the hell is subtle and profound about it? Is there something special about "a man and a woman"? (That would be ironic, since the interview was all about saying "a man and a woman" is not special.) Is it about 2 black people? Oh, my! What an amazing occasion — 2 black people are talking!

Can we ever settle down and be normal about the fact there are people of different sexes, different races, and different sexual orientations? I wish Andrew Sullivan would be a little more reflective — to the point of experiencing embarrassment — about the sentimental twinges he feels witnessing black people accomplishing something.

"Ann -- Today, I was asked a direct question and gave a direct answer: I believe that same-sex couples should be allowed to marry."

Obama emails:

I hope you'll take a moment to watch the conversation, consider it, and weigh in yourself on behalf of marriage equality:

http://my.barackobama.com/Marriage

I watched. What struck me was how much he struggles to drag the statement out of himself and, specifically, how intently he stared down and to the left. There's some evidence that a person's eye direction indicates whether a person is accessing their memory or making something up. For a left-hander like Obama, looking down and to the left happens when the person is experiencing an internal dialogue — talking to himself.

Back to the email:

I've always believed that gay and lesbian Americans should be treated fairly and equally. I was reluctant to use the term marriage because of the very powerful traditions it evokes. And I thought civil union laws that conferred legal rights upon gay and lesbian couples were a solution.

But over the course of several years I've talked to friends and family about this. I've thought about members of my staff in long-term, committed, same-sex relationships who are raising kids together. Through our efforts to end the "Don't Ask, Don't Tell" policy, I've gotten to know some of the gay and lesbian troops who are serving our country with honor and distinction.

What I've come to realize is that for loving, same-sex couples, the denial of marriage equality means that, in their eyes and the eyes of their children, they are still considered less than full citizens.

Even at my own dinner table, when I look at Sasha and Malia, who have friends whose parents are same-sex couples, I know it wouldn't dawn on them that their friends' parents should be treated differently.

So I decided it was time to affirm my personal belief that same-sex couples should be allowed to marry.

"Affirm" is such a studied word choice. I think he's pretty directly saying I decided to stop lying.

I respect the beliefs of others, and the right of religious institutions to act in accordance with their own doctrines. But I believe that in the eyes of the law, all Americans should be treated equally. And where states enact same-sex marriage, no federal act should invalidate them.

In the end, he's going to leave it to the states. Would he support a federal law to require states to recognize same-sex marriages from other states?
If you agree, you can stand up with me here.

Thank you,

Barack

"A fierce day for my gays and my prez."

Celebrities tweet about Obama's gay marriage embrace.