April 3, 2013

The Supreme Court Says ‘So What’ To Sodomy And Legalizes Gay Sex



Part III. Sodomy Repeal Clears The Way For Marriage Equality And DOMA Repeal 1997 - Present


In the colonial state of Virginia in 1625, Richard Cornish was sentenced to death and hanged for having sex with another man, which was a violation of the colony’s sodomy laws.


Every state in the nation enacted sodomy laws that outlawed various sexual acts between consenting adults. Until 1962 sodomy was a felony in every state, and by 2002, 36 states had repealed their sodomy statutes.


June 2003 - - - SCOTUS announced their landmark decision in the most significant gay civil rights case they had ever considered. In Lawrence v. Texas  the court invalidated any sodomy statute that remained on the books in any state. The ruling made private intimate consensual sex acts legal, and LGBT sex was no longer criminal or illegal. If gay sex was legal, LGBT people were legal too - and that meant there was no legal or rational basis to discriminate against the gay community.

November 2003 - - - The Massachusetts Judicial Supreme Court ruled that same-sex couples have the right to marry. Chief Justice Margaret Marshall cited Lawrence v. Texas  in the decision, "Our obligation is to define the liberty of all, not to mandate our own moral code."

January 2004 - - -  The Government Accountability Office (GAO), which is the investigative arm of Congress, identified 1,138 federal statutory provisions related to marriage. Those statutes, protections and benefits do not apply to same-sex couples who are married because of DOMA.

The DOMA Challenges


Since DOMA was enacted, there have been innumerable court challenges to the law, and 8 federal courts have found Section 3 unconstitutional. The lawsuits challenging DOMA have covered a variety of issues ranging from estate taxes to immigration, and public employee benefits and personal bankruptcy.

Since Edith Windsor’s case is being considered by the Supreme Court, we’ll limit our historical analysis to the Windsor case in the interest of brevity.

November 2010 - - - New York resident Edith Windsor filed a lawsuit challenging Section 3 of DOMA in the U.S. District Court for the Southern District of New York. Edith and her life partner Thea Spyer were legally married in Canada in 2007, and were life partners for 44 years. Thea Spyer passed away in 2009, and Edith was assessed with $363,000 in federal estate taxes. If the federal government recognized gay marriages, the estate tax would not apply.

February 2011 - - - The Obama Administration announced that they would continue to enforce DOMA, but would no longer defend Section 3 of the law in court because they believed the law was unconstitutional. In April 2011 the Bipartisan Legal Advisory Group in the House of Representatives (BLAG) announced that they would defend federal court challenges to DOMA.

June 2012 - - - The District Court ruled that Section 3 of DOMA is unconstitutional because it violates the Equal Protection Clause and infringes "upon the states' business of regulating domestic relations. Such a sweeping federal review in this arena does not square with our federalist system of government." BLAG appealed the ruling.

October 2012 - - - The Second Circuit Court of Appeals in New York upheld the District Court decision and noted that "It is easy to conclude that homosexuals have suffered a history of discrimination." The court found that DOMA violated the equal protection guarantees found in the Fifth Amendment. BLAG appealed the ruling to the Supreme Court.

SCOTUS Asks 3 Pivotal Questions


December 2012 - - -  SCOTUS agreed to hear the case.  The Supreme Court identified 3 questions that they wanted the attorney’s involved to address in their briefs. The first question addressed Section 3 of DOMA and whether it violates the equal protection guarantee, the second question was related to the Obama Administration’s position on DOMA and whether the court had jurisdiction to consider the case, and the third question asked whether BLAG had legal standing to represent the government since the Department of Justice refused to defend the law in court.

March 27, 2013 - - - Last Wednesday SCOTUS heard oral arguments in United States v. Windsor, which is a significant legal challenge to the federal Defense of Marriage Act.





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