United States v. Windsor is the Defense of Marriage Act (DOMA) case pertaining to whether married same-sex couples should be entitled to federal benefits. The Court held that DOMA violates same sex couples' constitutional rights. This means that if a same-sex couple is married in one of the eleven states that recognize same-sex marriage, the federal government is constitutionally obligated to afford that couple the same federal benefits that it does for all other married couples. If a same-sex couple moves to a different state that doesn't recognize same-sex marriage after their marriage, the couple's new state does not have to recognize the marriage, but the federal government is obligated to continue its recognition of it.
Hollingsworth v. Perry is the case pertaining to California's voter-passed Proposition 8. The Court held that the individuals that were defending Proposition 8 lacked the standing to bring the suit (see our earlier article on these cases by clicking here for a short and easy to understand explanation of standing). The Court did not look to any of the constitutional merits of same-sex marriage, and the federal trial court's holding stands. Thus, Proposition 8 is not in effect in California and same-sex marriage continues to be legal within the state.
For a more in depth look at the background of these two cases, click here to take a look at an earlier article that we published a few weeks ago about the potential outcomes to each case.
Dear NCLL friend,
Attorney David Gibbs III of the National Center for Life and Liberty would like to invite you to the Return America Rally at Hilltop Freewill Baptist Church in Fuquay Varina, North Carolina on Friday, June 7th at 7:00 PM.
The church is located at 10212 Fayetteville Road, Fuquay Varina, NC 27256. The rally will begin at 7:00 PM.
If you have any questions, please contact Hilltop Freewill Baptist Church at (919) 552-5612. For directions, please click here.
On behalf of those we have the privilege of serving,
David Gibbs III
President and General Counsel
Admitted in Florida, North Dakota, Minnesota, Colorado, Texas, Ohio, Tennessee, Michigan, the District of Columbia, the United States Supreme Court, and many federal district and circuit courts.
Within the history of the United States, there have only been a few Supreme Court cases that have had the potential to change America’s moral values in a drastic fashion. In the 1973 case of Roe v. Wade, the Court altered the course of American history—for the worse—by concluding that a woman’s right to have an abortion is implicitly found within the constitutional liberty rights of the Fourteenth Amendment. In 2003, the Court again impacted the moral compass of America with its ruling in the case of Lawrence v. Texas. The Lawrence Court held that laws against sodomy violate the constitutional privacy rights of Americans, and the Court struck down Texas’s anti-sodomy laws.
When it comes to cases affecting morality, no recent cases have had more potential to impact American culture than the two marriage cases recently heard by the Court. Hollingsworth v. Perry and United States v. Windsor were argued at the Supreme Court on March 26 and 27, 2013, and if the Court follows its normal protocol, we should expect the decisions to be announced by the end of June. Since Roe, the Supreme Court has not had an opportunity to forge America’s moral values as it currently does with Hollingsworth and Windsor.
Understanding the Two Marriage Cases
Hollingsworth v. Perry is the marriage case that involved a challenge to California's Proposition 8. Proposition 8 is the voter-passed initiative that amended the California Constitution to unequivocally mandate that marriage in the state of California had to be between a man and a woman. In this case, two same-sex couples applied for marriage licenses in California, and because of Proposition 8, the state denied the couples’ requests for marriage licenses. The two couples sued the state claiming that Proposition 8 violated their Fourteenth Amendment liberty rights—the same rights that undergirded Roe v. Wade and Lawrence v. Texas decisions. At the district court level (federal trial court), the couples prevailed under the ruling of the openly homosexual judge, Vaughn Walker, and Proposition 8 was deemed to be unconstitutional.
Despite the fact that the voters of California successfully voted to amend California’s Constitution to allow legal recognition of opposite-sex marriages only, the original defendants in the case, Governor Arnold Schwarzenegger and Attorney General Jerry Brown, responded to the lawsuit by refusing to defend the case on behalf of California. When a defendant declines to defend a lawsuit, the result is what is called “default judgment.” Default judgment means that the plaintiff that filed the suit wins the case and gets what she asked for in her complaint. In this case, the plaintiffs were claiming that Proposition 8 violated their Fourteenth Amendment rights to get married by claiming the homosexual marriage was a “fundamental right.” Since the state of California declined to defend the case, two traditional values groups intervened and stepped in the shoes of the state to defend the case.
At issue, was whether the intervening parties—the parties defending the case—had legal “standing.” Standing is the legal concept derived from Article III of the Constitution that ensures that the proper parties are parties of the lawsuit; in other words, standing ensures that there is a party to the suit that has suffered harm as a result of the other party and thus has the right to seek judicial enforcement of a right. Both the district court and the Ninth Circuit Court of Appeals upheld that the intervening parties had standing.
During oral argument at the Supreme Court, the justices spent more than half of the time that was allotted for oral argument to question the attorneys on the standing issue. Because of this, many are speculating that the Court will dismiss the case for a lack of standing. If dismissed on standing grounds, the result of Hollingsworth will be that Judge Walker’s ruling in the district court—striking down Proposition 8 as unconstitutional—will stand. The only positive point to dismissing on standing is that the Court will avoid making a determination (for the time being) of whether homosexual marriage is a fundamental liberty right under the Fourteenth Amendment.
If the Court does hold that the intervening parties have standing, then court will go to the merits of whether same-sex marriage is a constitutional right. As you know—the results of this decision have the potential to completely change American culture and disregard the voters’ intent in each of the states. On one hand, the Court could take a federalism position by refusing to regard same-sex marriages as a constitutional right; thus leaving the decision for each state’s voters to decide. On the other hand, the Court could hold that same-sex marriage is a fundamental constitutional right that is implicitly found within the Fourteenth Amendment’s liberty interests, and all of the states would be subject to recognizing same-sex marriages to avoid violating the constitution.
United States v. Windsor, the second marriage case heard by the Court in March, involved a challenge to Section 3 of the federal Defense of Marriage Act (DOMA), which provides that, for purposes of federal law and federal benefits, marriage must be between a man and a woman. In 2011, the Obama administration announced that it believed DOMA to be unconstitutional—completely circumventing Congress’s lawmaking authority—and would not defend it in this court case. The House of Representatives’ Bipartisan Legal Advisory Group voted to defend DOMA and intervened. The plaintiff, Edith Windsor, based her injury on the fact that same-sex couples do not receive the same federal tax benefits that are afforded to opposite-sex couples.
A great deal of time was also spent during oral argument in Windsor on the issue of standing. The primary issue that the court looked at, however, was whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection. Like Hollingsworth, if this case is dismissed on standing grounds, the result will be that the trial court’s judgment will stand. That means that Ms. Windsor will win her challenge against the additional tax liability she faces, and federal law would be forced to recognize her same-sex marriage. Also, just as it does in Hollingsworth, the Court has the opportunity to rule on same issue: whether same-sex marriage is a fundamental right for all.
Will you please join us in praying for the Supreme Court as it is deciding this landmark issue? Since the Court heard the cases in March, three states (Rhode Island, Delaware, and Minnesota) and three foreign countries (Uruguay, New Zealand, and the United Kingdom) have approved same-sex marriages, raising questions about how the developments might affect the justices' consideration of the issue.
During the oral arguments, it was fairly clear that four of the justices (Justices Ginsburg, Breyer, Sotomayor, and Kagan) will vote in favor of recognizing a right to same-sex marriage and that four justices (Chief Justice Roberts, Justices Alito, Scalia, and Thomas) will likely vote for dismissal on standing grounds or will refuse to recognize that same-sex marriage is a fundamental right. The swing vote will likely come from Justice Kennedy—the author of the opinions in Romer v. Evans and Lawrence v. Texas—the two cases that have expanded same-sex rights more than any others heard by the Supreme Court. Now, more than ever, we ask for you to pray for the Court to leave this issue to the states!
It’s hard to believe that another academic year is already coming to a close! As you are completing your year-end projects and preparing to document this past homeschool year—we want you to know that we are here to help!
As you are winding up, should you have any questions pertaining to legality of your homeschooling—please know that you have a friend in the Center for Homeschool Liberty. At this time of the year we receive many questions about record keeping compliance, preparation for next year, and questions about state specific homeschooling requirements. Perhaps you’ve moved to a different state, and are curious about your new state's laws? Whatever questions you may have, please know that we are glad to help! Also, please be sure to make use of the state specific homeschool laws resource. To access this resource, visit NCLL.org by clicking here.
Here's a snapshot of some of the help we were able to offer just this past week:
Perhaps the issues raised above reminded you of something that you need to take care of before this year closes? If we can be a help to you, please let us know, we are here to serve you.
A Few Notes on Record-Keeping
There are many homeschooling styles and approaches, and parents are certainly at liberty to choose how to educate their children. But, it is extremely important to keep good records! Homeschooling records can either be computerized, or they can simply be kept by pen and paper.
What homeschool records should you keep?
First, it is important to understand what the law requires in your particular state. Some states require attendance records, portfolios, or testing records. Parents should carefully review what they are required to do by law. You can find summaries of all state laws at the Center for Homeschool Liberty.
Second, it is important to keep detailed records. Remember, the records you keep are the ONLY documentation of your child’s education. As your child approaches college age, you won’t have the convenience of just sending away for a transcript—you’ll have to prepare one. Be sure to keep enough sample work, curriculum lists, and reading lists so you will have the information that you will need to properly prepare this document.
Ask any attorney and they will tell you that it is best to err on the side of greater detail in your homeschool records. In the unlikely event that the government ever challenges your homeschooling—what kind of documentation will you be able to produce to show that you are educating your child? You can demonstrate the best “case” by producing excellent records.
Some parents do not like this idea because they want maximum flexibility and freedom in educating their children. It is important to remember that you are subject to both God’s and man’s laws. Even if you are in a state where you are not required to keep records, if you are ever questioned by legal authorities, you will be judged by what you are able to demonstrate in court. The quality of the evidence you present will depend on the excellence of your records.
Homeschool records should be kept at the time the teaching and learning takes place. In other words, they must be contemporaneous. Detailed, contemporaneous records will persuade a court that your homeschooling is effective and that your children are learning.
Have You Renewed Your CHL Membership?
Are you coming to the end of your free first-year membership? Have you received a notice from us that it is time to renew? As you consider your financial commitments, we would ask you to make a donation to CHL. All donations are tax-deductible and make it possible for CHL to defend and advance constitutional and homeschool liberties. If you'd like to learn more about CHL, please visit our website at www.NCLL.org, like us on Facebook, and follow us on Twitter. These are busy times in the fight for liberty—will you stand with us by donating to our work?