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Entries in DOMA (7)

Wednesday
Jun262013

Prop 8 and DOMA: Where Do We Stand Now?

Encino Tarzana Divorce LawyerDivorce Attorney

by Vanessa Soto Nellis
818.907.3274

 

San Fernando Valley Los Angeles Divorce Lawyer

In two 5-4 decisions this morning, the U.S. Supreme Court dismissed a Proposition 8 appeal that denied same-sex couples the right to marry in California, as well as an important part of the federal Defense of Marriage Act, or DOMA.

The judicial majority in Hollingsworth et al. v. Perry et al., headed by Chief Justice John Roberts – and joined by Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan – did not hand down an opinion on a broader and more key question: Is same-sex marriage an equal protection right that should apply to all states?

Justice Roberts explains the majority decision to deny the California Prop 8 appeal, which denial in effect, reinstates legal marriages for same-sex couples:

Once Proposition 8 was approved, it became a duly enacted constitutional amendment. Petitioners have no role—special or otherwise—in its enforcement. They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every California citizen. No matter how deeply committed petitioners may be to upholding Proposition 8, that is not a particularized interest sufficient to create a case or controversy under Article III.

The four dissenters (Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor) however, say there was a missing element in the decision-making. Justice Kennedy elaborates:

The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.... In California and the 26 other states that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The court today frustrates that choice.

As for DOMA, Justice Kennedy wrote the opinion (and Justices Ginsburg, Breyer, Sotomayor and Kagan joined) regarding United States v. Windsor:

DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State.

Same-Sex Couples - Legal Timeline

 

In 1996, Congress adopted DOMA, which denied all benefits or legal standing to same-sex couples. But in 2000, California began registering same-sex couples as domestic partners, and allowing them certain government and insurance benefits, child custody, and hospital visitation rights.

CALIFORNIA'S PROP 8 TIMELINE - Source: huffingtonpost.comA lot of back-and-forth among politicians, political groups, and religious authorities resulted in state and federal court battles, but currently Washington D.C. and 12 states authorize gay marriages.

Though the Court's decisions regarding DOMA and California's Prop 8 are significant wins for same-sex marriage proponents, the arguments are not over.

 

Vanessa Soto Nellis is a Family Law Attorney and Shareholder at our Firm. Contact her via email: vnellis@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Thursday
Feb092012

Gay Marriage | Proposition 8 Serves No Purpose, Says 9th Circuit

Encino Tarzana Divorce LawyerFamily Law Attorney

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

It's an election year. As though the economy isn't enough for candidates to fight about, California's 9th Circuit Court added another topic to the political frenzy: Proposition 8, the 2008 voter-approved ban on same-sex marriage

On Tuesday the federal appeals court decided 2-1 that California's Prop 8 is unconstitutional. Though the opponents of Prop 8 enjoyed a small victory this week, the battle is far from over. Because, first and foremost, it's an election year. 

But aside from that fact, there are other questions involved around whether or not Prop 8 should be deemed valid. Justice Stephen Reinhardt wrote, "Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only…" 

The constitutional question on the docket? Whether or not Prop 8 violates the 14th Amendment of the U.S. Constitution. According to Judge Reinhardt's written statement, it does: 

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California. . . 

Keep in mind that Prop 8 was approved by just over 52 percent of California voters in 2008. 

The gay marriage issue in California is unique because it was a right that previously existed, and California has domestic partner laws. Because of this, some doubt that the U.S. Supreme Court will review the case. 

Regardless, we can expect those running for President to weigh in until November, which should make for some interesting commentary. 

 

Vanessa Soto Nellis is a Los Angeles Divorce Attorney and Shareholder in our Family Law Practice Group. You can reach her by calling 818.990.2120.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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