Much is being made — from Gawker to Mother Jones — of President Obama’s statement today that he believes marriage is a state issue.
Specifically, both pieces point to the line in the ABC News article about the interview: “The president stressed that this is a personal position, and that he still supports the concept of states deciding the issue on their own.
The court disagreed, writing that Nissan’s counsel “did not inquire into Mr Mitchems sexual preference, he simply surmised, based on Mr Mitchems appearance and demeanor, that he was potentially biased against corporate defendants.. Missouri has not declared that it is a Batson violation to use a peremptory challenge on the basis of perceived alternative lifestyle, the court wrote. The court went on to note that Missouri has not adopted legislation protecting LBGT people from discrimination, adding: If the Missouri legislature desired to protect this class in jury selection, as California has, it would have enacted such a statute. Moreover, the United States Supreme Court has yet to include sexual orientation within the purview of Batson. … Thus, there is no reason for this Court to expand the boundaries of Batson at the present time.. Even under the Obama administration, the Department of Justice has declined to urge judges to bar discrimination against LGBT potential jurors.. Daniel Osazuwa, a gay Nigerian immigrant was serving prison time for bank fraud in California, and was later charged with assault against a prison guard. Osazuwa argued that he was merely hugging the guard as is custom in his nation of origin and suggested that the guard’s allegations were based on his alleged prejudice against gay men.. During jury selection, federal prosecutors dismissed a female juror, identified as J.T., who said that she formerly had a female “domestic partner.
” Under the equal protection clause, laws classifying people are subjected to one of three levels of scrutiny – rational basis, intermediate scrutiny like that applied to sex based classifications, or strict scrutiny like that applied to race based classifications.With some level of heightened scrutiny applied to sexual orientation classifications, as Obama and Holder decided was appropriate based on their analysis of several factors considered when determining the level of scrutiny to apply, the decision that DOMA’s definition of marriage was unconstitutional was relatively straightforward. Department of Justice lawyers have since argued in federal cases from California to Massachusetts that heightened scrutiny should apply to sexual orientation classifications and that, accordingly, DOMA’s federal definition of marriage should be struck down as unconstitutional.Although being argued in the context of DOMA, however, the level of scrutiny to be applied to sexual orientation classifications would apply across the board — to federal, state and local laws, ordinances and practices.In fact, on July 1, 2011, in Karen Golinski’s lawsuit seeking equal health insurance benefits for her wife as are offered to an opposite sex spouse, DOJ filed a significant brief explaining the reasoning behind the Feb. 23, 2011, decision. In it, the administration acknowledged the significant role of both federal and state sexual orientation based discrimination.In the Golinski brief — and in several others since — DOJ lawyers spent multiple pages laying out the history of state based discrimination against gay, lesbian and bisexual people.It is here where Obama’s enunciated policy position — today and this past June — crosses the path of the legal pursuits of the administration. If the administration were still defending DOMA and had taken no position on the level of scrutiny to be applied to sexual orientation classifications, then Obama’s statement might mean that his view is that states have unfettered rights to legislate as they they wish on marriage.But, that is not the circumstances in which he makes these comments. Instead, Obama’s position now is three fold: (1) he personally supports same sex marriage; (2) he believes as a policy matter that state, and not federal, law should define marriages, as it always has been in this country; and (3) he believes that there are federal constitutional limitations on those state decisions.It is true that the administration has not tidily wrapped those strands together. Doing so, by filing an amicus brief in a state marriage lawsuit like the challenge against California’s Proposition 8 would make this point clear to all.But, even in the absence of such a public declaration, lawyers working on and judges considering these cases already have acknowledged the importance of the DOJ position on DOMA in state law cases. The day that the DOJ decision was announced in February 2011, lawyers for the plaintiffs challenging Proposition 8 told the judge that the DOJ’s decision represented a “material,” or significant, development.As the lawyers then wrote, “The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct.
Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest.
Brad Thomson is a business journalist based in Melbourne, Australia. Brad has a passion for financial markets and breaking news stories and loves writing about business news, stock market, and economic opinions that matters most to its audience. Brad spends a lot of time discovering and researching latest financial markets and industry news stories in order to make sure the latest and greatest stories are brought to you first on BigBoardNews.com.