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Weirdest Gay Marriage Questions

Hint: A lot came from Justice Scalia. See the five most bizarre moments from the Supreme Court’s Prop 8 and DOMA arguments this week, from cellphones to the ‘essential thrust.’

Anybody else got a bit of a Supreme Court hangover?


Gay marriage supporters rally outside the Supreme Court during oral arguments in a case challenging the Defense of Marriage Act (DOMA) March 27, 2013 in Washington, DC. (Chip Somodevilla/Getty)

The Supreme Court spent Tuesday and Wednesday arguing about gay marriage with proponents and opponents of the Defense of Marriage Act and California’s gay marriage ban, Prop 8. To be sure, it was a seminal moment in American history. But transcripts of the arguments can sometimes read like they were written by a lawyerly Samuel Beckett—less humor, more absurdity. One minute we’re weighing the perspective of the 40,000 children of gay parents who want their parents’ unions validated with marriage, the next minute Justice Antonin Scalia is warning y’all to watch out because gay marriage is younger than cellphones and the Internet. One minute we’re considering whether the proponents of Prop 8 even have standing to defend the law, and the next we’re talking about procreation and “thrusting.”

It was a weird two days.


What DOMA Is Really About

In the second day of oral arguments over same-sex marriage before the Supreme Court, there appeared to be greater agreement on the shortcomings of DOMA. Adam Winkler reports.

Sitting on the hard, wooden benches inside the Supreme Court as the justices file in from behind a red velvet curtain, the anticipation of the crowd is palpable. There are gay couples with small children, eager to witness this historic moment for equal rights. There are gay-rights activists who’ve devoted their careers to combating discrimination and intolerance. There is a who’s-who list of Washington lawyers, convinced that this case, United States vs. Windsor, could lead to a landmark ruling for gay people in the way that Brown v. Board of Education was for the nation’s racial minorities more than half a century ago.


People from both sides of the same-se- marriage debate gather in front of the U.S. Supreme Court on March 27. (Mark Wilson/Getty)

Standing in for Oliver Brown is Edie Windsor, an 83-year-old lesbian woman who was stuck with a $360,000 estate-tax bill when her (lawfully wedded) female spouse, Thea Spyer, died in 2009. Had she been in a heterosexual marriage—had Thea been Theo, as she puts it—she wouldn’t have had to pay a dime of that tax. But under the Defense of Marriage Act of 1996 her gay marriage was not recognized by the federal government. So she paid the tax and sued seeking a refund and a declaration that DOMA—the Defense of Marriage Act signed into law by President Bill Clinton in 1996 (but more recently disavowed by him)—was unconstitutional.

For Windsor and nearly everyone in the crowded courtroom, this case is about discrimination against gays and lesbians. Everyone, that is, except the nine justices. Most of them appear to want to talk about anything but discrimination against gay people. Instead, they focus the hearing on procedural issues, such as who has the authority to defend the law, or on dry questions of the relationship between the federal and state governments.


Same-sex marriage supporters demonstrate in front of the Supreme Court on March 27, 2013 in Washington, DC. (Jewel Samad/AFP/Getty )

DOMA looks doomed, but would a high court sidestep be the best move for gay marriage? The Daily Beast picks the most cogent takes on the arguments in the two marriage cases before the Supreme Court this week.

DOMA in Trouble
Lyle Denniston, SCOTUSblog

Justice Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. 

The Laughable Argument Against Gay Marriage
Jeffrey Rosen, The New Republic

The Supreme Court justices will eventually have to reckon with “responsible procreation.”


The Cases That Alito Forgot

During gay-marriage arguments, the justice seemed wary of tackling an institution ‘newer than cellphones or the Internet.’ But, uh, what about these rulings?

As the nine Supreme Court justices whinged and grumbled during Tuesday’s hearing on California’s Proposition 8, Justice Samuel Alito presented a grave concern: how can they possibly assess the potential effects of gay marriage? They may be a brainy bunch, but that doesn’t mean they can predict the future. 

US Supreme Court Justice Samuel Alito

In contrast to Justice Alito’s protests about rendering a decision on DOMA since it’s “newer than cellphones or the Internet,” the court has, in fact, heard several cases related to inventions and practices newer than either. (Mandel Ngan/AFP/Getty (Alito), AP (4))

“Same-sex marriage is very new. I think it was first adopted in the Netherlands in 2000,” Alito said. “It may turn out to be a good thing; it may turn out not to be a good thing … But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?”  

It’s an interesting argument, given that the Supreme Court has ruled on many cases dealing with issues that arose after the invention of cellular phones and the dawn of the Internet. These incidents must have slipped Alito’s mind.

As the Supreme Court hears arguments today on the Defense of Marriage Act (DOMA), follow along as we collect the smartest court-watchers’ latest tweets.


O’Reilly: ‘Compelling Argument’ for Gay Marriage

O’Reilly: ‘Compelling Argument’ for Gay Marriage Jamie McCarthy/Getty

Says the opponents are “thumping” for the Bible.

First, Bill O’Reilly defends President Obama and now this? Be careful, Bill, they might take away your Fox contract. The host of The O'Reilly Factor said Tuesday that “the compelling argument is on the side of homosexuals” in the fight for gay marriage and “the other side hasn’t been able to do anything but thump the Bible.” O’Reilly said he had no strong feelings about gay marriage, but the idea that “we’re Americans; we just want to get married” is much stronger than the opposing side. O’Reilly said he supports civil unions and “always" has.

Read it at Politico


John Boehner’s Gay Marriage Tax

Since Obama stopped defending the Defense of Marriage Act, Boehner is spending taxpayer money to pursue a tax case against an 83-year-old widow, reports Steven Thrasher.

When Barack Obama proved unwilling to hound an octogenarian widow for a tax bill she never should have been charged, House Speaker John Boehner proved more than willing to take up the task—even at a cost to taxpayers of far more than the money she owed.


Edith Windsor outside of court on September 27, 2012. (Steven Thrasher)

That’s how the case of Edith Windsor versus the United States of America came to be argued before the Second Circuit Court of Appeals in Manhattan last September--and now, six months later, in front of the United States Supreme Court. The New York hearing was a strange one, where the defendant, backed by the Democratic president, argued that she should owe $360,000 less in taxes than the IRS has collected, while the appellant, working on behalf of the Republican Speaker, argued she should foot the bill.

Legally, the case is about the constitutionality of Section 3 of the Defense of Marriage Act of 1996. In practical terms, it’s about a good chunk of money that Windsor would like to get back—and the freedom for consenting adults to behave as they wish without being financially penalized by the government.


Supreme Court to Hear DOMA Arguments

Supreme Court to Hear DOMA Arguments Jewel Samad/AFP/Getty

Even Bill Clinton has denounced 1996 gay marriage ban.

In case you didn’t have your fill of guessing how the Supreme Court will rule on gay marriage, the high court will hear arguments on Wednesday about striking down the Defense of Marriage Act, the 1996 law that prohibited federal agencies from recognizing same-sex marriage and giving benefits to same-sex spouses. In a sign of how far public opinion has swayed on the issue, DOMA passed with overwhelming majorities in both Houses of Congress and was signed into law by President Bill Clinton, who has since asked the court to strike it down. On Tuesday, the court seemed to lean toward not ruling on California’s controversial Proposition 8, which bans gay marriage.

Read it at The Washington Post


The Gay-Marriage Holdouts

The Democrats’ potential 2016 contenders may be shifting at breathtaking speed—Mark Warner, Tim Kaine, and Brian Schweitzer this week alone—but David Freedlander found a few last opponents.

How quickly is support for same-sex marriage moving?

Well, consider this. On Monday, I pitched a story to my editors on Democrats who are considered to be potential presidential candidates in 2016 but who still don’t support same-sex marriage.

Civil Unions Colorado

Janet Napolitano, John Hickenlooper (center) and Brian Schweitzer. (AP (2), Getty)

The story was meant to be proof against the conventional wisdom that says that never again will a party leader be on the other side of the marriage-equality question, that even though Joe Biden and Barack Obama and even Rob Portman were reversing their previous positions, a number of party leaders and chattered-about presidential contenders aren’t where the growing gay-rights constituency wants them to be. Many of the pols who didn’t support same-sex marriage weren’t explicitly opposed so much as they were straddling the fence, talking about equal rights under the law but declining to say they support marriage. By my count, there were perhaps a half dozen of them, a fairly large number considering the relative shortness of the list of politicos mentioned as 2016 candidates. Perhaps I could flush some of them out, find out if they, like Obama, were “evolving on the issue.”

Legalize It

Gay, Southern, and Loving It

Even in the Deep South, many committed gay couples have found acceptance in their communities. Will the Supreme Court finally make their unions official? By Constantino Diaz-Duran.

We’ve come a long way, baby.

As the Supreme Court weighs two high-profile cases that could potentially legalize same-sex marriage across the country, committed gay couples in the Deep South say they’ve witnessed a remarkable evolution in acceptance in the region, even if discrimination still remains beneath the surface—and on the books.

Chick fil A Gay Marriage

Carri Jo Anderson holds a bucket of KFC chicken and a gay pride sign as she joins the protest in front of a Chick-fil-A restaurant in Pompano Beach, Fla., Friday, Aug. 3, 2012. (J Pat Carter/AP)

Chris McCary and John Sullivan live in Anniston, Ala., a small city even by Alabama standards. In 2004, they became the first out-of-state couple to get hitched in Massachusetts, gaining them national media coverage and, along with it, a measure of local notoriety.


Stay Out Of It, Supremes!

As the justices openly wondered whether they’d agreed to hear the Prop 8 case too soon, Paul Campos says the best way to honor the “democratic process” is for the Supreme Court to back off and let the lower-court ruling stand.

The tea-leaf reading is well underway following Tuesday morning’s oral arguments at the Supreme Court in the case of Hollingsworth v. Perry—better known as the Prop 8 case, which is considering whether California voters unconstitutionally denied same-sex couples the right to marry.


Protesters on both sides of the gay marriage issue gather in front of the U.S. Supreme Court, on March 26, 2013 in Washington, DC. (Mark Wilson/Getty)

If the justices decide to uphold the lower-court decision that Prop 8 was indeed unconstitutional, it will surely be decried by many on the right as an example of “judicial activism” or, better, “legislating from the bench.”  Supporters of same-sex marriage will retort that marriage is a fundamental constitutional right that shouldn’t be subject to the democratic process.

But there’s a stronger argument for letting same-sex marriage be legal in California than invoking inherently controversial claims about what courts should or shouldn’t recognize as fundamental rights. Far from undermining the democratic process, legalizing same-sex marriage in California would honor it—and the justices wouldn’t have to say a word either way on the merits of the issue. (The justices spent much of the oral argument quizzing the lawyers in the case about “standing,” which is law talk for whether a court ought to dismiss the suit without regard to the legal issues ordinary people actually care about.)


Supreme Court Cheat Sheet

Supreme Court Gay Marriage

People make their way inside into the Supreme Court in Washington D.C. on March 26, 2013, for the court's hearing on same-sex marriage. (Pablo Martinez Monsivais/AP)

How did the cases get here? What’s at stake? And who are the justices to watch? Eliza Shapiro answers your questions.

The Supreme Court is hearing two cases about marriage equality this week. What are they and what’s the difference between the two?

The first concerns the constitutionality of California’s Proposition 8, which will be argued on Tuesday, and the second, on Wednesday, concerns the Defense of Marriage Act (DOMA). Prop 8 was a 2008 ballot initiative that amended the state’s constitution to prohibit same-sex marriage. It was approved, despite the fact that the California Supreme Court had ruled a few months earlier that Prop 8 violated the state’s constitution. The two same-sex couples challenging the law say it violates the U.S. Constitution’s guarantee of equal protection.

DOMA is a 1996 federal law that prevents same-sex couples from enjoying federal benefits that heterosexual couples enjoy, such as joint tax returns and Social Security. DOMA also defined marriage as the union between a man and a woman.

How might the Court rule?

Could Be Worse

What if the Court Punts?

Kevin Drum wonders about whether the Court might toss the Prop 8 suit on a technicality or a lack-of-standing issue:

Technically, there's an argument to be made that backers of Prop 8 don't have proper standing to sue in this case. And it's easy to say that this would be a fine example of conservatives being hoist by their own petard, since, as Erwin Chemerinsky has pointed out, they're the ones who have been so eager in the past to deny standing in cases involving civil rights, environmental protection, and the separation of church and state.

But this is a case in which lack of standing is purely artificial. The state of California, which would normally be on the hook to defend its own laws, has declined to do so. This decision means that a properly enacted constitutional amendment literally can't be defended in court, and that's just wrong. Like it or not, half the state voted for Prop 8, and one way or another, their interests deserve their day in court.

He has a point there. In this particular case, this would work out kind of well, presumably--same-sex couple in California would presumably be permitted to start getting married again, depending on how the decision was written, and pro-Prop 8 people would have to scrounge around for a litigant who does have standing. So that would be great. But it wouldn't settle anything beyond California.

Marriage at the Supreme Court

Why Gay Marriage Will Win, and Sexual Freedom Will Lose

In the future, gay marriage will not only be legal, but practically mandatory.

In some sense, it doesn't really matter how the Supreme Court rules on the gay marriage case it's hearing today.  The culture war is over on this front, and gay marriage has won.  Even if it loses at the Supreme Court this term, it will win in the legislatures . . . because it is already winning in popular opinion.  Few people much under the age of sixty see a compelling reason that straights should marry and gays should not.  For that matter, my Republican grandfather is rumored to have said, at the age of 86, "I think gays should marry!  We'll see how much they like it, though."

At this point, it's just a matter of time.  In some sense, the sexual revolution is over . . . and the forces of bourgeois repression have won.

That's right, I said it: this is a landmark victory for the forces of staid, bourgeois sexual morality.  Once gays can marry, they'll be expected to marry.  And to buy sensible, boring cars that are good for car seats.  I believe we're witnessing the high water mark for "People should be able to do whatever they want, and it's none of my business."  You thought the fifties were conformist?  Wait until all those fabulous "confirmed bachelors" and maiden schoolteachers are expected to ditch their cute little one-bedrooms and join the rest of America in whining about crab grass, HOA restrictions, and the outrageous fees that schools want to charge for overnight soccer trips.

I know, it feels like we're riding an exciting wave away from the moral dark ages and into the bright, judgement free future.  But moral history is not a long road down which we're all marching; it's more like a track.  Maybe you change lanes a bit, but you generally end up back where you started.  Sometimes you're on the licentious, "anything goes" portion near the bleachers, and sometimes you're on the straight-and-narrow prudish bit in front of the press box.  Most of the time you're in between.  But you're still going in circles.  Victorian morality was an overreaction to the rather freewheeling period which proceeded it, which was itself an overreaction to Oliver Cromwell's puritanism.  (Cromwell actually did declare a War on Christmas, which he deemed to be sensuous paganism.)


The Supreme Court Prop 8 Arguments

On Tuesday, the Supreme Court heard oral arguments for a case challenging California’s Prop 8, which defines marriage as between a man and a woman. Read the full transcript and listen to the courtroom audio here.

Court Watch

Supremes 101

The Anti-Rainbow Warriors

The Anti-Rainbow Warriors

Michael Tomasky explains why he’s pessimistic about the odds of a pro-gay-marriage decision.

Could Be Worse

What if the Court Punts?


Supreme Court Cheat Sheet

Gay Marriage

Republicans Play Catch-Up


Beware the Court Predictions

Hollywood’s ‘Twink’ Pool Parties

Hollywood’s ‘Twink’ Pool Parties

Wild nights of no clothes and lots of alcohol: one attendee reveals what went on at X Men director Bryan Singer’s infamous pool parties.


Another U.S. Mumps Outbreak


The Afghanistan to D.C. Express

History Lesson

Was There Really An Empty Tomb?

Crisis in Ukraine

Billionaire Bounty-Hunting Club

Obama Endorses Gay Marriage

In a major policy shift Wednesday, President Obama told ABC News’s Robin Roberts that ‘same-sex couples should be able to get married.’ The move marked the first time a sitting president has thrown his support behind gay marriage and the end of Obama's self-described 'evolution' on the issue.