Unraveling the Windsor Knot
Last week’s lengthy post examined from a broad perspective the United States v. Windsor case as a whole regarding what it did and did not do for same-sex marriage in the U.S. This week’s post is the first in a series of closer examinations on the specific issues and case law involved in this “landmark” Opinion. Though, the phrase “earth-shattering” may be more appropriate. In this first more narrow perspective, we’ll start with the Court’s question on whether it should have heard the case at all, particularly the issue of Article III jurisdiction. Article III of the U.S. Constitution mandates that courts can only hear “cases” or “controversies” and case law adds a few other requirements. So let’s consider how the question of Article III jurisdiction came into play and how it was resolved. Controversies may seem readily apparent simply because one party is on one side of the “v,” for “versus,” and another party is on the other side, e.g., United States Versus Windsor. Obviously, the U.S. and Windsor disagreed. But did they? Those who say no genuine controversy existed based their argument on the fact that the Department of Justice refused to defend DOMA’s Section 3 because the President considered Section 3 unconstitutional. Can the President do that? Yes, the President can and the United States Supreme Court agreed with the Constitutional scholar who is also the President of the United States of America: Section 3 of DOMA is unconstitutional. BUT, the sticky wicket in this case was that the Executive typically takes this type of position when the situation is adversarial, i.e., when a lower court disagrees. In Windsor, the lower court agreed. So just how was there was a “controversy”? Well, the Executive may have refused to defend Section 3, but it stated that it would continue to enforce it. A la, we have controversy…maybe… The Supreme Court used the case, Hein v. Freedom From Religion Foundation, as its starting point. In Hein, taxpayers sued the government for using money in faith-based programs initiated by former President Bush. The Court determined that the taxpayers lacked standing and thus couldn’t sue and reversed the appellate court’s ruling. A fundamental requirement for Article III controversies is standing, which is met when “a plaintiff [alleges] personal injury” that can be reasonably liked back to the defendant’s illegal action or actions and the relief sought by the plaintiff can probably be provided. Here, there was no doubt that Edie suffered injury – more than $360,000 worth – and the U.S. wasn’t going to enforce the IRS’s refusal to pay the refund based on DOMA’s Section 3. So, though the lower court may have ordered the IRS to pay, congressional law told the IRS not to refund the payment. The Court probably could have stopped here, because it could have remanded the case back down to the lower court with the admonition, with which Justice Scalia would have agreed, that Congress already spoke. But the Court ventured on, using INS v. Chadha to find controversy in the case past the issue of remand. In Chadha, a person who overstayed their visa was ordered by the INS (now known as USCIS) to leave the U.S. That person appealed to the Attorney General of the U.S., who granted the relief. However, Congress had the authority to veto the U.S. Attorney General and did so. So, like Windsor, Chadha was a case where the Executive sided with one plaintiff and another government body – this time the House – disagreed. The Court in Chadha ruled that a controversy existed despite the agreement because there was “concrete adverseness\” about the issue and there was adequate Article III standing before Congress vetoed. Now, let’s look at Windsor again. The lower appellate court and the plaintiff agreed in Windsor agreed. There was – and still is – an ugly, discriminatory congressional statute affecting “the entire U.S. Code.” So Congress had spoken. These facts are a tad different from Chadha… So where’s the controversy? Stay tuned… Unravelling the Windsor Knot: Part 1 | Part 2
The Supreme Court and DOMA\’s SoberRing
Last week we celebrated the Supreme Court of the United States (SCOTUS) striking down Section 3 of the so-called Defense of Marriage Act (DOMA). And let’s be clear, SCOTUS did not strike down DOMA; it indeed gutted the act, but strike it down completely it did not. The expanding and subtle rant about that is slightly further down, in this uncommonly lengthy article – consider yourself forewarned, but we need to be clear that DOMA is still congressional law. Now, we’ve all seen it on TV: The witness can only answer ‘yes’ or ‘no,’ and is asked a question where she must answer ‘yes,’ but the ‘yes’ is only because of mitigating facts that may or may not come to light. Well, I must admit that while I am assuredly a liberal Democrat who disagrees with most of Justice Scalia’s Opinions and remarks, I must say “yes, Your Honor\” to Scalia’s dissent regarding an “argle-bargle” opinion. United States v. Windsor was poorly written and the final holding was the mother of all judicial disclaimers. BUT this isn’t TV, so I get to share the mitigating facts behind my agreeing with the Justice who so often ruffles my feathers as I work through this Opinion\’s analysis. Fasten your seatbelt… Immediately in the introductory paragraph, we’re given a slight hint about the parameters of the decision when we’re told that Windsor is challenging DOMA’s provision that defines marriage. Next, in the Opinion’s Section I, we’re told flat out, DOMA’s Section 2 hasn’t been challenged here. Mitigating factor #1: Since the Court doesn’t go on to mention a sua sponte action, whereby the Court can on its own inclination consider the entire statute, we’re on notice. Only part of this despicable law is going to be decided by this Opinion. Sidebar: For those of you unfamiliar with Section 2 of DOMA and who haven’t read the Opinion, Section 2 provides that a state can refuse to recognize same-sex marriages legally performed in other states. The Court then explains that the definition provision in Section 3, which defines marriage as “only a legal union between one man and one woman as husband and wife” and confines the term “spouse” to a heterosexual marriage, doesn’t prohibit States from allowing same-sex marriages but it does put a sincere damper on the availability to LGBT married couples of the more than 1000 benefits provided to straight married couples. One of those benefits, upon which the case\’s issue was based, is the right to the spousal estate tax deduction. Yet, even before reaching the case\’s factual issue, the Court had to address whether this case was, in fact, a case. Long ago, it was determined that courts, including SCOTUS, should only hear cases that represented a controversy. Here, there was a question on whether a controversy existed because the Administration agreed with Windsor, the plaintiff. If the government agreed with the plaintiff filing suit against it, then where’s the controversy? In Section II of the Opinion, the Court agrees that a taxpayer’s grievance should be concrete, persistent, and redressable, and that Windsor’s loss of more than $360,000 fit the bill. We all did, even the U.S., so again, where’s the controversy? Who on the U.S. side will be hurt if the U.S. agrees Windsor was hurt? Well, after discussing the issue of regular Article III standing, where a party has to meet those 3 elements mentioned above for it to be a party to a controversy and the ethereal issue of “prudential standing,” the Court finally unveils the interesting idea. It deems that the U.S. Treasury will be harmed because were it not for the lower court’s 0rder to pay the refund, the U.S. Treasury would be $360,000 richer. In other words, though the U.S. agreed with Windsor on principle, because the order for it to pay up put the U.S. government in harm’s way, we have controversy. I’m scratching my head, but we got there… Many questioned the Bipartisan Legal Advisory Group’s (BLAG) right to stand in the controversy, too, but the Court stated that BLAG’s “sharp adversarial position” when considered with the guidance that would be missing from 94 districts across the country and the 1000 laws, rules, and regulations affected, the Court decided in its “prudential” wisdom that BLAG had standing. Several colleagues are still combing the lines of the Opinion’s Section II about that prudential standing stuff, but I prefer to move on to Section III, which is equally, if not more fascinating… In Section III, the Court unravels (?) its reasoning for striking Section 3 of DOMA while maintaining Section 2, the States’ power. Citing Sosna v. Iowa, the Court reasoned that in addition to the lack of discrimination espoused by the Court’s ruling in Loving v. Virginia, which make state definitions of marriage constitutional, states still have the authority to regulate marriage. Once more? A state\’s definition of marriage must adhere to non-discriminatory rules of the U.S. Constitution but the States can determine how that definition plays out. Fascinating. To further elucidate this point, the Court then cites In re Burrus for the rule that all domestic relations regarding a family fall within the legal purview of the States, not the federal government. When the government does something like define marriage, the federal courts generally defer to the States and choose not to hear domestic relations cases. So if a state’s regulation of a constitutional definition of marriage violates the constitution, the courts can look away? Remarkable. Understanding the confusion this section must have wrought, the Court then makes grand gestures: Citing Romer v. Evans, the Court provides that (1) when a law discriminates so blatantly, its constitutionality should be scrutinized; (2) unlike typical laws passed by the federal government to eliminate discrimination, DOMA does the opposite – it’s Fifth Amendment constitutionality must be questioned; and (3) states provide for same-sex marriage because marriage is much more than a myriad of legal rights and benefits – marriage confers a relationship status
Marriage Is Not a \”Cell Phone\”
Reading the New York Times commentary and analysis of the Supreme Court\’s hearing on the Prop 8 case involving California\’s same-sex marriage issue, what struck deeper than anything else was the seeming reluctance of the Court to do what it is appointed to do: protect the rights of those United States persons who have been discriminated against, marginalized, or otherwise made to suffer injustice. While an \”all-or-nothing\” choice can be frustrating and using the force of law to make a large minority accept a trend that improves the civil rights of thousands instead of ruling on a decision where a large majority has issue with whether the hunting of birds flying over a particular state violates an international treaty, U.S. Supreme Court justices are appointed for just that reason. It has always been my understanding that the Court, because it is the final arbiter of American justice, is supposed to make frustrating, difficult decisions when justice calls for such decisions to be made. What was the majority\’s opinion when race was removed from the de facto \”definition\” of marriage in Loving v. Virginia? A U.S. President and 118 members of Congress decided to define \”marriage\” and the distribution of more than 1000 federal benefits that accompany this definition for millions of U.S. citizens. So, is the argument that because we don\’t have a 2:1 margin in the country supporting same-sex marriage that we are stuck with this draconian definition that is based on \”history,\” and that history\’s rationale is that the purpose of marriage is procreation? Are we not in 2013 with the Internet and assisted reproductive technology? And, speaking of technology, \”newer than cell phones\” is an insulting comparison to a relationship with all the hallmarks of a marriage except the label and, more importantly the rights that are afforded that \”label.\” The cell phone analogy could arguably be found swimming in the ocean of reductio ad absurdum, which is arguably surprising coming from a Justice of the United States Supreme Court. As Justice Kennedy pointed out, more than 40,000 children in California alone are subjected to the marginalization of their families by a law that has no place in a civil society. The Justice referred to the emotional stigmatization these children face, but what about the financial benefits that the federal government attributes to married couples? If a child is living in a home with same-sex parents who, e.g., cannot take advantage of filing jointly on federal tax returns and discounts provided in medical and other benefits via ERISA and other government agencies, then money is being taken away from that family and, therefore, that child. So while I applaud Justice Kennedy for directing the public\’s attention to the children who are adversely affected by the so-called Defense of Marriage Act (DOMA) and its proponents, in my authentically humble opinion, the argument should have and could have gone further than what appears to be a gratuitous tug at the heartstrings. Becoming a lawyer, I was told and always take to heart that those with great gifts have an equally great responsibility and must not turn away from that responsibility when it calls for making difficult choices, such as whether to provide all U.S. citizens with all of the rights of marriage or no U.S. citizen with a cohesive, civil, and just legal foundation for loving, committed relationships.
90-Second Legal Analysis of Same-Sex Marriage Issues
Courtesy of Bloomberg Law via JDSupra. For a deeper look at relationship rights and the courts, visit our \”Love and the Law\” series.
Windsor: An Update on the Same-Sex Marriage March
I wrote about this case in the \”Love & the Law\” series. It has huge estate planning implications for the LGBT community and recently, the Obama Administration has recommended it instead of other same-sex marriage cases that the U.S. Supreme Court is deciding whether to hear. Factual synopsis: When Thea died, the federal government refused to recognize her marriage to Edie (they were legally married in Toronto, Canada) and taxed Edie\’s inheritance from Thea as though they were strangers. Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes. Traditionally, whether a couple is married for federal purposes depends on whether they are considered married in their state. New York recognized Edie and Thea\’s marriage, but because of a federal law called the \”Defense of Marriage Act,\” or DOMA, the federal government refuses to treat married same-sex couples, like Edie and Thea, the same way as other married couples. Edie challenged the constitutionality of DOMA and sought a refund of the estate tax she was unfairly forced to pay. The Southern District Court of New York (“SDNY”) agreed with Edie and granted summary judgment, stating that it could find no rational basis for Section 3 of DOMA and therefore, Section 3 violated the Equal Protection Clause of the U.S. Constitution. The Bipartisan Legal Advisory Group (“BLAG”), hired by the House of Representatives to defend the government, appealed to the Second Circuit setting forth 3 basic legal arguments and additional non-legal arguments. The legal arguments were as follows: Federal estate tax law provides that the state of domicile determines marital status and because at the time of Thea’s death, New York didn’t perform same-sex marriages, the lower court’s decision should be overturned. The Second Circuit stated that it could predict that New York would have recognized the marriage at the time of Thea’s death, so that argument was defeated. Congress can prohibit same-sex marriages like states can per Baker v. Nelson. The Second Circuit reminded BLAG that state regulation and federal regulation are different. So Baker wasn’t applicable in this case. Section 3 of DOMA should be analyzed using the rational basis or “rational basis plus.” The Second Circuit stated there is no such thing as \”rational basis plus\” yet and set out a four-prong test for heightened scrutiny per Bowen v. Gilliard and City of Cleburne v. Cleburne Living Center and established that the LGBT community passed this test and should be considered a quasi-suspect class. After reviewing the non-legal arguments to provide rhetorical dicta, the Second Circuit affirmed SDNY’s decision, holding that “Section 3 of DOMA violates equal protection and is therefore unconstitutional.” The thorny part of this case is that the Second Circuit’s decision reads like a roadmap for the Supreme Court to punt the cases on DOMA back to the states. However, the argument against the proposition that state and federal regulations are different and, therefore, this should be an issue left for the states to decide, is that many regulations may be different but many state and federal regulations also overlap, if not in substance, in application. Hence, parsing the overlap of the rules and regulations that DOMA implicates may be more burdensome with respect to costs for both the states and the federal government than simply ruling that DOMA is unconstitutional.
With this Ring, I Don\’t Civil Union or Wed
Several articles on The Shark Free Zone discuss challenges married or Civil Union couples face. However, their challenges, especially in terms of planning and protecting their families, are minimal compared to cohabiting couples. And before I continue, let me say that not wanting to subject your relationship to institutional constraints is understandable. With the divorce rate in the U.S. between 40-60%, whether you’re a same-sex couple or a straight couple who consciously decides against obtaining legal status for your relationship, your decision ultimately may be more pragmatic. I’m thinking Kurt and Goldie. However, the decision to cohabit will currently cost you and your partner more than 1100 state and federal government benefits. The decoupling of these benefits from cohabiting couples results in the above-mentioned challenges. Nevertheless, planning tools exist that are universally applicable, irrespective of your relationship status, tools such as powers of attorney, certain types of life insurance, and certain retirement accounts. Additionally, you and your partner can take other definitive steps to protect your relationship. Furthermore, these steps, which are gender-neutral, can help your family today and tomorrow. Prepare A Property Sharing Agreement. One of my favorite TV shows is The Big Bang Theory and, admittedly though Leonard tugs at my heartstrings and I LOL at Raj and Howard’s “bromance,” I identify most closely with Sheldon. Sheldon has a roommate agreement that probably puts most prenupts to shame. Among some of its provisions, is an outline of who owns what, how the asset should be replaced if the other party destroys it, and how property bought together, such as a life-size authentic Time Machine, should be divided if the relationship ceases and one roomie moves out. The cohabiting relationships I’m discussing in this article are, of course, more substantive than roommates, but the premise is the same: list what you own together and separately and acknowledge it on a legally signed document. Seek Adoption. If one of you is a biological parent with sole custody of the child, a second-parent adoption by your partner, if he or she is a non-biological parent, is critical. Otherwise that person will have no legal rights if the biological parent becomes incapacitated, dies, or decides to end the relationship. Trust the Trust. Both of you place your express intentions in a valid trust. A will can be challenged and the gender composite of your relationship is irrelevant. Nasty courtroom battles have occurred between family members who opposed the surviving partner’s share because of religion, age, or other cultural reasons that had nothing to do with the couple’s gender orientation. In a nutshell, what must a couple do to protect their non-institutionalized relationship? Document the sharing and put all agreements in a valid contract whose benefits aren’t derived from or through federal, state, or local governments. Other than that, enjoy your loving and stable family just like everyone else enjoys theirs. In the words of Tommy Llewellyn-Thomas: Noli spurios te contundere.
5 Key Blocks for the Build-A-Baby Life Stage
Helping new families through my practice is one of the great benefits of my job. It soothes my soul because I know the family will be protected sooner rather than later and we will all sleep better, though the infants rarely have a tough time sleeping soundly. However, becoming a new parent isn’t always easy. The gamete meeting sometimes just doesn’t take place as soon as we want it to; sometimes our gametes just don’t want to meet at all. On these occasions, Artificial Reproductive Technology (ART) can play a very important role. However, ART can be costly, financially and emotionally. I was on a panel with Lambda Legal a few months ago and an audience member referred to the financial program designed by his company to help parents with this issue as the “Build-A-Baby” program. This particular department helped couples design their financial planning so they could afford ART, which can cost thousands of dollars per month and when you factor in particular types of adoptions, the final costs can be hundreds of thousands of dollars. And, as mentioned, that’s just the financial burden. The emotional burden of waiting and hoping is equally heavy, if not heavier. As opposed to ART, either parent or both parents can take an alternative route and adopt. Still, just as with ART and as above sometimes including ART, adoption can be costly and is always emotionally burdensome. Consequently, it is critical that parents understand how they can protect each other and their families at the very beginning, even, sometimes, before the birth occurs. Another panel I was on recently described it as “Building Your Family Fortress.” The following are the cornerstones for today\’s family, whether you use ART, adopt, or your gametes meet the old-fashioned way: Obtain life insurance that will at least replace the primary wage-earner’s salary for 3-5 years. Have powers of attorney – healthcare and property (what some states refer to as including “advanced directives”) prepared for both parents. Free drafts of Illinois powers of attorney are available here. If you’re a same-sex couple, be sure if one of you is the biological parent, then the other adopts the child. The U.S. is still a patchwork of states, some recognizing your legal rights in a Civil Union or same-sex marriage, and others not. The same applies for straight couples who are not married and one parent is the biological parent. If you’re using ART with an unknown donor, the parent carrying the child should designate the other parent as a short-term guardian to go into effect at some point in time until the adoption is complete. Obtain valid wills, irrespective of the gender-orientation of your relationship because you need to ensure that the guardian of your child is who you want the guardian to be in the case of your death. For straight couples, it is critical that you name a successor guardian. Other blocks can also be used, but these 5 bricks represent the cornerstones of a solid fortress that will protect your family now and in the future.
5 Ways to Protect 4 Critical Relationships
As mentioned in a previous post, once an adult starts working and accumulating assets, even if they’re simply a car and nice living room furniture, he or she also needs to start protecting their livelihood. The same holds twice as true for young couples.* Couples sometimes erroneously believe that they don’t need to protect themselves or their relationship until they get married, enter into a Civil Union, or have children. However, just like working single adults need protection, so do “young” couples. Therefore, once a decision to reside in one household as a loving and committed couple is made, the documents previously discussed – powers of attorney and life insurance – should be revisited to reflect this relationship. Moreover, depending on the legal status of the relationship, or the lack thereof, legally documenting your agreement about your assets is very important. For example, in Illinois, if you’re cohabiting, your relationship lacks legal recognition except by contract. Therefore, an agreement to share expenses and property is the bare minimum of what is required to at least document your relationship and its affect on your assets. Additionally, ensuring your testamentary documents – a valid will and trust – reflect your intentions toward your partner and the rest of your family is equally important. If a cohabiting partner dies intestate (without a will), unlike the surviving partner in a Civil Union or legally married couple, the surviving cohabiting partner will have no rights under Illinois laws. However, the next of kin to the deceased will have rights. Therefore, unless a document, such a shared expense and property agreement, is in place with mounds of receipts and statements providing supporting evidence of the agreement, the surviving partner will have no way of retaining assets that were obtained as a couple. Still, even with this agreement in place, the decedent’s relatives may still challenge by asserting their rights to inheritance under Illinois’ intestacy laws. Thus, to prevent a possible brouhaha, it’s advisable to have at least a valid will prepared, designating your partner as a beneficiary. But remember, because a will is public – see Whitney Houston’s will – your family gets to see who gets what. And if you have an evil twin who doesn’t like what he or she sees, the brouhaha will not be averted. So then what? You might have a revocable living trust prepared. Trusts are private – you can’t see what Michael Jackson left – and become irrevocable upon the grantor’s (trust maker’s) death. Civil Union and legally married couples are more fortunate than cohabiting couples with a caveat for Civil Union couples. The right to inherit and renounce bequests are generally universal rights for spouses through the U.S. and Civil Union couples typically have all the rights of spouses. However, Civil Union couples are not recognized in all states, so spousal rights are not available, placing them in the same position as cohabiting partners in unfriendly states. So for couples without children and without consideration for probate proceedings, the most basic ways to protect your relationships may resemble this:
Love & the Law: Privacy? No. Sex? No. History? No. Liberty? Yep, We Were Wrong. Pt 1
Updated May 27, 2023 Finishing the “Love & the Law” series, this article reviews 2 cases at the heart of the right to privacy for the LGBT community: Bowers v. Hardwick, decided in June 1986, and Lawrence v. Texas, decided 15 years later in June 2003. First Bowers… Hardwick was arrested in 1982 and charged with violating Georgia’s sodomy law. The District Attorney refused to continue prosecuting the case for lack of evidence. Still, Hardwick sued on the grounds that the Georgia statute, prohibiting “any sexual act involving the sex organs of one person and the mouth or anus of another,” violated his constitutional rights. The district court dismissed the suit for the failure to state a claim upon which relief could be granted. The Eleventh Circuit reversed using a right of privacy as its rationale, requiring the State to prove it had a compelling interest in maintaining the law. The State appealed; other courts disagreed, so the Supreme Court of the United States agreed to hear the case. The Court framed the issue as being whether the U.S. Constitution provided a fundamental right to the LGBT community to participate in gay sex. Talk about a narrow frame. It further explained that gay sex was not a required component of privacy rights and though Hardwick argued on the grounds using other Supreme Court cases – Griswold v. Connecticut and Eisenstadt v. Baird, the Court asserted that there was no link between those cases and his. Those cases involved family, marriage, or procreation; this case did not. The Court continued to explain that it was trying not to judge the case on ideological, moral grounds and would look to the defining essence of those rights that require a compelling interest be shown. That essence could be determined under one of 2 formulae: (1) if the activity was proscribed, there would be no liberty or justice; or (2) the rights were those “deeply rooted in the nation’s history and tradition.” According to the Court, gay sex didn’t meet either formula. Then, the Court continued to judge the case on ideological and moral grounds: “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated…the courts will be very busy indeed.” Eleventh Circuit’s decision was reversed and the law remained valid until… Lawrence v. Texas… The Love & the Law Episodes: Brief Case History | Contraceptives | The Color of Love | The IRS v. NY | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 1 | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 2
Love & the Law: Privacy? No. Sex? No. History? No. Liberty? Yep, We Were Wrong. Pt 2
Lawrence v. Texas… From the very beginning of the Lawrence Opinion, one could tell that the Bowers decision was in trouble. Sometimes justices write opinions in this manner to throw readers off, but it wasn’t the case in Lawrence when Justice Kennedy opened the Opinion by explaining that the cornerstone of the Fourteenth Amendment is liberty and embedded in liberty is the right to privacy. Facts Houston , Texas police were called to a house on a weapons disturbance tip. They entered the home to witness John Lawrence and Tyrone Garner engaged in sexual activity. Both were charged and convicted of “deviate sexual intercourse,” a violation of a Texas statute. In their defense, they challenged the statute as unconstitutional with regards to the Equal Protection Clause of the Fourteenth Amendment and a similar provision in the Texas Constitution. The Texas Court of Appeals rejected the defense and Mr. Lawrence appealed to the U.S. Supreme Court. The Court saw Lawrence as presenting 3 issues, whether: The Texas statute violated the Equal Protection Clause of the Fourteenth Amendment; The Texas statute violated the Due Process Clause of the Fourteenth Amendment; and Bowers was decided correctly. In analyzing the issues, the Court first turned to Griswold, which established privacy rights for marital relationships but, according to the Court, also set the foundation for individual privacy rights outside of marriage. So Mr. Hardwick was correct. The Court also considered another landmark case, Eisenstadt v. Baird, where personal rights of unmarried persons involving contraceptives was at issue. It then looked at Roe v. Wade and established the following rationale: Per Griswold, Eisenstadt, and Roe v. Wade, the privacy of a woman resulted in a woman’s right to “make fundamental decisions regarding her destiny.” It stands to reason that if the rights apply to women, then they assuredly apply to men. Accordingly, Due Process protection is much more expansive than the language implies. Next, the Court considered Carey v. Population Services International, where the Court ruled that a law prohibiting the sale of contraceptives to persons under 16 years was invalid. The Court took these steps to show where the law had moved on the issue of privacy in intimate relations by the time the Bowers case was to be decided. It explained that Bowers was similar to Lawrence but the Georgia statute in Bowers applied to all Georgia citizens, whereas the Texas statute only applied to homosexuals. So equal protection of the laws was not provided to Mr. Lawrence. The Court then considered the framing of the issue by the Court in Bowers, stating that it was too narrowly framed because it failed to consider the issue of liberty. Hmmm… The Court stated that adults, including members of the LGBT community, may choose the kind of relationships they want to enter into without sacrificing their dignity. Addressing the issue of community and tradition as brought up by the Court in Bowers, the Court gave a history lesson on the law against homosexuals, stating that, in fact, there was no tradition of laws against gays until the late 19th century: Heterosexual couples participated in the same acts that homosexuals engaged in and it was the heterosexual behavior that was at issue initially. The prohibition was targeting non-procreative sexual activity, not homosexual activity per se. “It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution and only 9 States have done so.” Read: Lawrence’s and Geddes’ fundamental right of liberty and the inherent right of privacy found within the right to liberty were violated. The Court acknowledged the importance of the Bowers’ rationale to a certain extent, recognizing that the Court in Bowers was rightfully giving a voice to those who held strong moral convictions. However, the Court qualified that recognition by also stating that the Court’s job is to define liberty, not push through society’s moral ideologies. The Court continued to explain that well-esteemed bodies of American and European jurisprudence considered such laws draconian and restated what it said in Planned Parenthood v. Casey, which was decided after Bowers: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Having re-established the principals laid out in Planned Parenthood v. Casey, the Court then proceeded to discuss Romer v. Evans, stating that one of the intended results of the Romer decision was the removal of the stigma associated with criminalizing conduct such as gay sex. After discussing Planned Parenthood v. Casey and Romer, the Court pointed out that the rationale for Bowers had been significantly weakened. Still, recognizing the doctrine of stare decisis in which precedent is given a very high amount of deference because of the legitimacy it gives to Court rulings, i.e., the law, and the stability it creates in the law and society, the Court nevertheless pointed out that the doctrine is not absolute. Hence, the Court concluded that Bowers wasn’t right when it was decided, and was not right now and therefore should not stand and, neither should the Texas statute. Thus, ends the Love & the Law series for now. Given the thorough analysis of liberty and the right to privacy performed by the Court in Lawrence, one can only wonder how long it will take before DOMA is constitutionally invalidated as it is a clear violation of the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and likewise implicates the Fifth Amendment. Sidebar Recently, Massachusetts has requested that the Supreme Court should hear cases involving DOMA and invalidate the congressional statute because the statute forces States like Massachusetts, which perform and recognize same-sex marriages, to discriminate against its citizens and that per the Tenth Amendment, which authorizes Congress’s Spending power,