By now you've probably heard about the court ruling overturning the unconstitutional Proposition 8. But it wasn't the only big court ruling dealing with DOMA and marriage equality in the past month or so. More on the rulings, the NOM bus tour stop in Raleigh next week, the counter-rally, and the path to SCOTUS below the fold.
In an enormous victory for same-sex marriage, a federal judge in Boston today (Thursday, July 8) ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act (DOMA) unconstitutional.
In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.
Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.
This summer marks not only positive steps towards the end of discrimination, but also the period in which the anti-gay National Organization for Marriage is doing their bus tour around the nation to protest against marriage equality. And next week they're coming right here to NC with a stop in Raleigh. More on the rulings, the counter-rally, and LGBT equality in NC below.
First, the rulings, and what happens next. Today's ruling that found Prop 8 unconstitutional is undoubtedly heading to SCOTUS, but it will have to stop at the 9th circuit court of appeals. Between this ruling, and the double ruling out of MA, SCOTUS will should be looking at this issue within 2 to 3 years. For the moment though no wedding bells will be ringing. The judge (a Bush senior appointee) has issued a temporary stay to keep this ruling from taking effect that should hold until at least Tuesday and then we'll see what happens next with the appeals and whether he extends the stay any longer.
The good news is that we are sending a very strong case on the path to SCOTUS. Lawyers Olson & Boies opposed each other in the infamous Bush v Gore case, but came together to side with equality. Undoubtedly this pair knows their way around SCOTUS and had SCOTUS in mind when making their arguments. Likewise the judge involved seemed to have appeals in mind as well. My understanding from following all of the news today is that while findings of law can be contested, findings of fact are not as easy to dispute in appeals, and this ruling was full of findings of fact (about 80 of them). So in many ways this is one of the strongest cases we could send to SCOTUS.
The decision by Vaughn Walker to have a full fledged trial with a full evidentiary record was inspired and put the Perry case in a unique position compared to how such issues are usually handled on submitted pleadings and argument. This one had a real trial with a real record; that makes a ton of difference for the appeal.
Appellate courts cannot just substitute their views for that of the trial court when there is an evidentiary record, findings of fact and conclusions of law like this, where it is much easier to do so if it has been decided by preliminary injunctive relief, motions or on the pleadings.
And where is the NC connection you might ask? Well other than Burr being pro-constitutional amendment to ban marriage equality and Marshall being in favor of DOMA repeal (vote Marshall!), as I noted earlier, the National Organization for Marriage is busing into North Carolina to rally in our capital. They make no efforts to hide the fact that they are outsiders busing in:
Check out these videos of a previous stop on the tour.
The counter rally:
If you don't want signs like this (from a previous stop in their summer bus tour) to go unchallenged, check out some info on counter rally events on Tuesday August 10th around 12 to 1pm here, here, and here. After Prop 8 passed we saw protests around the country, including right here in NC (protest outside the governors mansion pictured above). Luckily the NOM bus tour protests have been pretty small for the most part, so we don't have to have another turn out of around 1,400 people to out rally them. Some of their rallies have been as small as 20 people. So if you can load up in your car with a friend or two and make your way to the counter-rally on Tuesday that could easily be the tipping point.
Also check out Equality NC's new blog, Celebrating Our Families, put up this summer whose theme runs directly counter to the hate spread by NOM.