The American Bear


Supreme court DNA sampling decision is another defeat for American liberty | Sadhbh Walshe

The US supreme court upheld a Maryland law that allows the police to take DNA swabs from anyone arrested, without a warrant. Photograph: Press Association A divided US supreme court ruled this week to uphold a Maryland law that allows the police to collect without warrant DNA material from persons who are arrested. The 5-4 decision was greeted with dismay by civil liberties advocates who see it as a body-blow to privacy and a further erosion of the US constitution’s fourth amendment, which is supposed to protect individuals from excessive government intrusion. The truth is, in an era of mass surveillance, we have little privacy left to lose – and the courts have shown little willingness to resist law enforcement claims that access to our personal and physical data is necessary for them to do their job.

This willingness to forgo the privacy of the many to identify the misbehavior of the few is already well established in America’s warrantless surveillance program. In January, President Obama signed into law a five-year extension of the Foreign Intelligence Surveillance Act (FISA) that allows for the monitoring of personal phone calls and emails as long as one of the communicants is outside the US. We have also recently been given reason to believe that all our domestic phone calls may be “captured as we speak” and that no “digital communications are secure.”

If that is the case, one might think that our court system would at least want to investigate the possibility that the government’s warrantless surveillance might fall into the category of “unreasonable searches and seizures” that the fourth amendment is supposed to protect us from. Instead, this past February, the US supreme court rejected a challenge to FISA – prompting concerns it will never rule on the constitutionality of the warrantless surveillance law.

At the very least, it seems that the courts are reluctant to interfere with the government’s ability to gain access to our private and personal communications – the content of our minds, if you will – when national security and law enforcement agencies claim that this information helps them pursue their objectives. Now, with this warrantless DNA ruling, the court has paved the way for the erosion of our physical privacy as well.

In the majority opinion, Justice Anthony Kennedy wrote that DNA sampling was merely a means of identifying a suspect, in the way that fingerprinting and photographing does, and claimed that when an officer makes an arrest supported by probable cause, taking a DNA swab was a “legitimate police booking procedure that is reasonable under the fourth amendment.”

In a scathing dissent, Justice Antonin Scalia rubbished the notion that DNA sampling was nothing more than an identification tool, saying it “taxes the credulity of the credulous” to suggest that it was not going to be used to attempt to solve other crimes. While no one doubts that DNA samples are a useful tool for solving cold cases or exonerating the wrongfully accused, the concern shared by the minority dissent and civil liberties advocates is that using an individual’s DNA to investigate a crime when the state has no incriminating evidence against that individual represents a drastic overextension of police powers. As the ACLU’s national legal director Stephen R Shapiro, said in a statement:

“The fourth amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. Today’s decision eliminates that crucial safeguard.”

As regards the future of our genetic privacy, it’s important to note that the law upheld by the US supreme court ruling in the Maryland v King case only allows for DNA to be taken from people who have been arrested and charged with a serious crime, and that this DNA can only be tested after a judge has found there to be probable cause that the person has committed a crime. The attorney Michael Risher who authored the ACLU’s amicus brief in that case points out, however, that other states’ laws and the federal government allow the police to take DNA from people arrested for much less serious crimes, such as drug possession or intentionally bouncing a check. These laws also allow the government to have that sample analyzed even if the person is never charged and when there is no incriminating evidence.

The fear is that this recent decision has paved the way for these much broader laws that allow the violation of our fundamental rights to (genetic) privacy to be upheld also. As Scalia wrote in his dissent:

“Make no mistake about it: as an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

So, where does all this leave the fourth amendment and that supposedly inalienable right it bestows on us to be secure in our “persons, houses, papers, and effects against unreasonable searches and seizures”?

Thanks to previous US supreme court rulings, we can be stopped in the street and frisked by police without probable cause for arrest. Our international phone calls and emails (and possibly our domestic ones) can be captured and recorded by the state. And now the court has paved the way for our genetic blueprint to to be made available to the government as well.

These successive attacks on the fourth amendment are always justified by law enforcement and national security concerns. If the loss of privacy is the price we have to pay, then it doesn’t feel like a fair bargain.

Supreme Court OKs Taking DNA From Arrestees | Threat Level

Deciding its biggest genetic privacy case of the term, a fractured Supreme Court said today that the states may take DNA samples from anybody arrested for serious crimes.

Privacy groups and law enforcement officials were closely watching the case because at least 27 states and the federal government have regulations requiring suspects to give a DNA sample upon some type of arrest, regardless of conviction. In all the states with such laws, the DNA records are cataloged in state and federal crime-fighting databases.

In a 5-4 decision, (.pdf) the justices reversed a 2012 ruling from Maryland’s top court, which had said that it was a breach of the Fourth Amendment right against unreasonable search and seizure to take, without warrants, DNA samples from suspects who have been arrested for crimes ranging from attempted burglary to murder. In the end, Justice Anthony Kennedy wrote that swabbing the inside of a suspect’s cheek to acquire a DNA sample was “an advanced technique superior” to fingerprinting, mugshots and even tattoo matching.

A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidenti­fied suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. DNA is another metric of identifica­tion used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police.

Kennedy added that, not “to insist on fingerprints as the norm would make little sense to either the forensic expert or the layperson.” The majority also said that DNA collection “may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.”

Justice Antonin Scalia, writing in dissent, said taking the DNA without a warrant was a clear Fourth Amendment violation. He suggested that the United States’ founding fathers would not be so willing “to open their mouths for royal inspection.”

[…] At issue before the justices was a Maryland Court of Appeals ruling that arrestees have a “weighty and reasonable expectation of privacy against warrantless, suspicionless searches” and that expectation was not outweighed by the state’s “purported interest in assuring proper identification” of a suspect.

The case involved Alonzo King, who was arrested in 2009 on assault charges. A DNA sample he provided linked him to an unsolved 2003 rape case, and he was later convicted of the sex crime. But the Maryland Court of Appeals reversed, saying his Fourth Amendment rights were breached.

Maryland prosecutors had argued that mouth swabs were no more intrusive than fingerprinting. Maryland’s high court said that it “could not turn a blind eye” to what it called a “vast genetic treasure map” that exists in the DNA samples retained by the state.

The Maryland court was noting that DNA sampling is much different from compulsory fingerprinting. A fingerprint, for example, reveals nothing more than a person’s identity. But much more can be learned from a DNA sample, which codes a person’s family ties, some health risks and, according to some, can predict a propensity for violence.

In dissent, Justice Antonin Scalia wrote that the cheek swabbing was an unconstitutional, warrantless search of a suspect because it goes beyond identifying the suspect and moves into crime-solving territory.

“If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at ‘identifying’ him, and no court would hold such a search lawful,” Scalia wrote.

Scalia also mocked the majority’s rationale because the suspect’s DNA in the case was not processed for about four months after his arrest.

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

Supreme Court won’t let farmer dodge Monsanto’s seed patents | Ars Technica

A long-lasting court fight over patented soybeans is over, and agribusiness giant Monsanto has won.

In a decision issued today, the US Supreme Court ruled 9-0 that Monsanto must be allowed to patent its seeds—and it must be able to punish farmers who try to dodge the patents.

Farmers are compelled to sign a patent agreement when they buy Monsanto’s Roundup Ready herbicide-resistant soybeans, promising that they won’t use the seeds to produce additional crops. A small-time Indiana farmer, Vernon Bowman, tried to avoid signing that agreement by simply buying a batch of undifferentiated “bin grain” from a grain elevator. Bowman went ahead and sprayed his crops with glyphosate, knowing that because Monsanto’s genetically altered seed has become ubiquitous in the food supply, around 90 percent of soybeans would have the Roundup Ready trait that provides resistance to that herbicide.

Feds Won't Say if NSA Surveilled New York Terror Suspects | David Kravets

Federal authorities prosecuting brothers on allegations they plotted to blow up a high-profile target in New York City are refusing to confirm publicly whether they cracked the case by employing a style of warrantless electronic eavesdropping first introduced by President George W. Bush in the wake of 9/11.

The reason, attorneys affiliated with the defense suggest, is because such a concession would create the nation’s first eligible defendant to challenge the constitutionality of the surveillance tactics, which Congress codified into law in 2008 and then again in December.

The government has never publicly conceded it has used evidence in a criminal case obtained through the National Security Agency’s post-9/11 mass surveillance program. A single acknowledgment could open the floodgates to challenge the surveillance tactic, which Supreme Court Justice Stephen Breyer in February noted that “commonsense” (.pdf) tells us is being employed by federal investigators.

The terrorism case concerns brothers Raees Alam Qazi, 20, and Sheheryar Alam Qazi, 30. Among other things, prosecutors said the younger Pakistani-born brother surfed Al-Qaida internet sites to learn how to build a bomb [of course!]. The FBI recorded telephone calls linking him to a plot to blow up a New York landmark last year.

… [The Judge in the brothers’ case, U.S. Magistrate John] O’Sullivan, agreeing with a defense motion, ordered (.pdf) prosecutors last week to say whether the government first acquired evidence against the indicted brothers (.pdf) using the Bush-style surveillance, and then used that evidence to obtain the traditional warrant from the secret court.

… [T]he government has never publicly admitted in a prosecution that it employed warrantless surveillance under the FISA Amendments Act. Doing so likely would trigger legal challenges over whether the tactic is constitutional — and would threaten the Qazi brothers’ case and perhaps countless others.

“This could open the door again at the Supreme Court,” said Patrick Toomey, national security fellow at the American Civil Liberties Union.

The development comes nearly three months after a fractured Supreme Court halted a legal challenge to the warrantless surveillance law at issue in the brothers’ case.

A divided Supreme Court, ruling 5-4, set aside the challenge because the plaintiffs — journalists and human-rights groups — had no evidence they were surveilled under FISA Amendment Act authority [and therefore no standing to sue]. Justice Samuel Alito, writing for the majority, said the plaintiffs “merely speculate and make assumptions.”

But the court’s decision did not foreclose a constitutional challenge. The justices said that, if the government “intends to use” evidence obtained in such a manner, the defendant “may challenge the lawfulness of the acquisition.”

Justice Breyer, in dissent, said the case should have proceeded to trial. Of the spying, he wrote: “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”

In court documents Thursday, Assistant U.S. Attorney Karen E. Gilbert urged O’Sullivan to set aside his order in the Qazi matter.

Gilbert said that, within weeks, the authorities will file a declaration from U.S. Attorney General Eric Holder that the information O’Sullivan has ordered disclosed is “sensitive national security information.” [of course!] (.pdf)

More on the referenced SCOTUS case, Clapper v. Amnesty International, here.

Supreme Court OKs $222K Verdict for Sharing 24 Songs | Threat Level

The Supreme Court on Monday let stand a jury’s conclusion that infamous file-sharer Jammie Thomas-Rasset pay the recording industry $222,000 for downloading and sharing two dozen copyrighted songs on the now-defunct file-sharing service Kazaa.

Without comment, the justices declined (.pdf) to review a petition from the Minnesota woman who claimed the damages award was unconstitutionally excessive and was not rationally related to the harm she caused the music labels. Thomas-Rasset was the nation’s first file-sharer to challenge a Recording Industry Association of America lawsuit, one of thousands the industry lodged against individuals who illegally shared music on peer-to-peer networks.

The high court’s move ends a legal saga that dates to 2007. The litigation had a tortuous history involving a mistrial and three separate verdicts for the same offense — $222,000, $1.92 million and $1.5 million.

The Supreme Court has never heard an RIAA file-sharing case and has previously declined the two other file-sharing cases brought before it.

A Little More From The Chambers | Charles Pierce

It’s become clear that Antonin (Short Time) Scalia’s “racial entitlement” is going to be the primary noise-bite out of the Supreme Court today. It doesn’t matter that whatever point Scalia was making was completely incoherent. By what possible standard is Section V of the Voting Rights Act a “racial entitlement”? Who, precisely, is being entitled? And to what? The Voting Rights Act does not confer a government benefit to any one race or another. It merely makes sure that the rights guaranteed under the 15th Amendment are not finagled with out in certain parts of the country that have proven, through history, as being deft at said finagling. The reason that African Americans have been the primary beneficiaries of this law is the simple fact that they were its primary victims. The Voting Rights Act doesn’t privilege their votes over any others. It just guarantees that they can be cast, and that they will be counted. But Scalia doesn’t care at this point whether he makes sense. He’s just interested in throwing whatever rocks through whatever windows he can find. He called it a “racial entitlement” because putting those two words together in any context is bound to cause a reaction. He’s one step away from calling Rush from behind the bench.

Also, too: it has become plain that, for the Roberts court, and for the Chief Justice from whom it bears its name, Citizens United is going to be the hill on which they die. It is central to its judicial legacy. It defines Roberts’s tenure as chief justice. (When the Court declined to hear the so-called “Citizens Unitedon steroids” case this week, it can be argued, it did so in order to protect the Citizens United ruling itself as a “moderate” decision in the field of campaign finance.) It cements into place principles — corporate personhood, money as speech — that prevailed during the previous Gilded Age, which also happened to be the period of history in which racial discrimination in the law, and especially at the ballot box, through Plessy v. Ferguson and its progeny. Plessy was decided by a Court that was pretending that it didn’t know what it was doing, and that was completely heedless of the inevitable effect of its ruling. That was plain to Justice John Harlan Marshall, who wrote a howling dissent:

Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

If the Roberts Court declares Section V of the Voting Rights Act to be unconstitutional, as seems sadly likely, it will complete a historically resonant parlay through which corporate influence over elections is enhanced while minority participation is made more difficult.

Glenn Greenwald: Supreme Court shields warrantless eavesdropping law from constitutional challenge | The Guardian

In sum, the US government has constructed a ubiquitous Surveillance State. It has repeatedly demonstrated that it intends to eavesdrop on the communications of exactly the people who have brought this lawsuit. To prevent them from suing on the ground that the US government’s secrecy precludes them from proving with certainty that they are being targeted is to remove the US government’s surveillance actions from the rule of law and the constraints of the Constitution.

But that is what the Obama DOJ just succeeded in convincing the five right-wing members of the Court to do: allow it to conduct its Surveillance State beyond the rule of law. What’s the point of having a Fourth Amendment that bars unreasonable searches and seizures without probable cause warrants if the US government simply shrouds its unconstitutional eavesdropping with so much secrecy that it prevents anyone from challenging the legality of what it is doing?

(Source: circlingtheroundabout)

Supreme Court Rejects Challenge to Surveillance Law | NYT

In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans.

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. Their fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

Justice Alito also rejected arguments based on the steps the plaintiffs had taken to escape surveillance, including traveling to meet sources and clients in person rather than talking to them over the phone. “They cannot manufacture standing by incurring costs in anticipation of non-imminent harms,” he wrote of the plaintiffs.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion.

In dissent, Justice Stephen G. Breyer wrote that the harm claimed by the plaintiffs was not speculative. “Indeed,” he wrote, “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his dissenting opinion.

The decision, Clapper v. Amnesty International, No. 11-1025, probably means the Supreme Court will never rule on the constitutionality of the law, a 2008 measure that broadened the government’s power to eavesdrop on international communications. The law, an amendment to the Foreign Intelligence Surveillance Act, was passed after the 2005 disclosure of the Bush administration’s secret program to wiretap international communications of people inside the United States without obtaining court warrants. The electronic spying, intended to help pursue terrorists, began after the attacks of Sept. 11, 2001.

The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and e-mails.

Supreme Court won’t hear challenge to EPA pollution rule | The Hill

The Supreme Court on Tuesday rejected a major copper company’s plea to review an Environmental Protection Agency air pollution rule that set standards for sulfur dioxide, a pollutant tied to several respiratory ailments.The justices denied Asarco LLC’s request to review an appellate court decision that upheld EPA’s 2010 regulation, which had drawn challenges from several states, companies and industry groups.

Asarco, which operates a major copper smelter in Arizona, in October asked the high court to review whether EPA illegally set a standard — 75 parts per billion over one hour — that it calls overly stringent.

The company had alleged that the U.S. Court of Appeals for the District of Columbia Circuit failed to properly restrain EPA’s discretion in setting the exposure standard for SO2 [sulfur dioxide].

“The question thus presented is: Whether the court below erred by concluding that EPA’s authority to include an adequate margin of safety allowed the court to avoid determining whether the revised sulfur dioxide national ambient air quality standard was more stringent than is necessary to protect public health,” Asarco’s petition for Supreme Court review stated.

The company claimed that EPA’s rule will force the nation’s industries to incur “enormous expense.”

The Supreme Court rejected the certiorari petition without comment Tuesday.

EPA has said the rule will bring major benefits.

The ruling (or non-ruling, as it were) itself is interesting, but I posted this to tie into a point from a recent piece by Rob Urie:

I used this very basic capitalist arithmetic in another piece recently and it serves a related purpose here: Revenues – Costs = Profits. Capitalism is theorized to be ‘efficient’ because the profit motive is purported to induce capitalists to minimize costs—lower costs mean higher profits. Without the profit motive, goes the argument; there is no incentive to produce the most output at the least cost. What is always left out of this formulation is unless the capitalist is forced to bear the costs of production capitalism is nothing but an externality generating machine—capitalists force everyone else to pay their costs.

With that in mind, let’s return to the Hill piece and see which costs Asarco wants “everyone else to pay”:

EPA estimates that the revised standard will yield health benefits valued between $13 billion and $33 billion, including reduced hospital admissions, emergency room visits, work days lost due to illness, and cases of aggravated asthma and chronic bronchitis, among other benefits,” the agency said in a 2010 summary of the standards.

In other words, Asarco would rather pass 13 to 33 billion dollars in adverse health effects on to the public than expend any of their precious profits to stop the problem at its source - your lungs and my lungs, our lives, be damned. This is the “efficiency” of capitalism.

NDAA Indefinite Detention Opponents File Supreme Court Emergency Motion

From Wednesday:

Opponents of the post-9/11 use of indefinite military detention have filed an emergency motion with the U.S. Supreme Court, seeking to block a law they say allows innocent American citizens to be locked away without trial.

The motion, submitted on Wednesday, asks the Supreme Court to reinstate an injunction against a key portion of the National Defense Authorization Act of 2012. Unless the court does so, the motion argues, Americans are “in actual and imminent danger of losing their core First Amendment rights and fundamental Equal Protection liberties.”

Since January, former New York Times reporter Chris Hedges, Pentagon Papers whistleblower Daniel Ellsberg and other activists have been waging a legal battle against the U.S. government, arguing that the NDAA gives the military far too much leeway to imprison journalists or activists on vague accusations of supporting terrorism.


In September, NDAA opponents won a permanent injunction from a district judge against the detention provision, but it was quickly overturned by a circuit court.

Now the activists have taken their fight to block military detention to the Supreme Court. Their motion will be considered by Ruth Bader Ginsburg, who by herself or with the rest of the justices could make a ruling within a matter of days. No matter what happens with the Supreme Court motion, the NDAA lawsuit itself will continue to be argued in the 2nd U.S. Circuit Court of Appeals, where NDAA opponents filed a new legal brief on Monday.

But yesterday, (Friday):

Emergency Motion Denied in Hedges via Lawfare

According to a notation on the Supreme Court’s docket, Justice Ruth Bader Ginsburg has denied the plaintiffs’ motion to vacate the stay entered by the Second Circuit in Hedges v. Obama. Thus the Court of Appeals’ interim order—which blocked a permanent injunction entered by the district court—remains in force pending resolution of an appeal by the United States.

The Supreme Court’s docket entry reads, in full:

Dec 14 2012 Application (12A600) denied by Justice Ginsburg. The application to vacate the order entered by the United States Court of Appeals for the Second Circuit staying a permanent injunction entered by the United States District Court for the Southern District of New York is denied. See Doe v. Gonzales, 546 U.S. 1301, 1308-1309 (2005) (GINSBURG, Circuit Justice).

You can find additional coverage by SCOTUSblog’s Lyle Denniston here.

Laws Not Fit to be Defended | David Cole

The Supreme Court’s decision on Friday to take on two challenges to anti-gay marriage laws has attracted widespread attention. But equally remarkable is the fact that neither of the governments whose laws are in question are even willing to stand behind those laws. It is as if we held a Super Bowl and one team failed to show up. The Obama administration has declined to defend the Defense of Marriage Act, the 1996 law signed by Bill Clinton that denies federal pension, health, and survivor benefits to same-sex married couples; and the governor and attorney general of California have declined to defend Proposition 8, a ballot initiative that passed in state elections in 2008 and amended California’s constitution to limit marriage to a union of a man and woman. In both cases—United States v. Windsor and Hollingsworth v. Perry—surrogates are standing in to defend the laws in their stead. We have moved from “the crime not fit to be named” to the laws not fit to be defended. It once was considered shameful to be a homosexual; today it is shameful to be anti-gay. In an important sense, the gay rights advocates have already won.

But don’t be fooled; the one-sided appearance of the cases does not mean that a Supreme Court victory for proponents of same-sex marriage is assured. The constitutional arguments in favor of marriage equality are very strong: laws recognizing marriage only for opposite-sex couples discriminate on the basis of sexual orientation, and no one has been able to marshal any rational justification for denying equal treatment. But the Roberts Court is a profoundly conservative institution; the limitation of marriage to opposite-sex couples has deep cultural and religious roots; and a decision declaring that limitation unconstitutional could have wide-ranging repercussions. Despite unprecedented progress toward marriage equality in the past decade, forty-one states still do not recognize gay marriage. Is the Supreme Court ready to require every state—including such states as Louisiana and Mississippi, where Christian and social conservatives have wide influence —to do so? And if it did uphold such a requirement, how would the states react? Constitutional doctrine gives a clear legal footing to gay marriage, but political realities may intrude.

While both cases challenge laws that define marriage as a union between a man and a woman on grounds that they violate the principle of equal protection, there are important differences between the two. United States v. Windsor concerns one provision of the Defense of Marriage Act (DOMA) which denies benefits under more than 1,000 federal laws to same-sex couples married in states that recognize same-sex marriage. Congress has long deferred to the states to define and determine who is validly married, because family law is typically the province of the states. But in 1996, when the Hawaii Supreme Court was on the verge of ruling that its state constitution required equal recognition of same-sex marriage, Congress panicked and enacted DOMA, a preemptive strike against any such developments. Several lower courts have declared the DOMA provision unconstitutional, finding that the law is discriminatory and that Congress had no good reason to deny to same-sex couples the benefits it extends to opposite-sex couples.

The law under review in Hollingsworth v. Perry is Proposition 8, a referendum adopted by California voters in 2008 in response to a California Supreme Court decision that declared the state’s failure to recognize same-sex marriage unconstitutional under California’s constitution. The voters effectively reversed that decision by amending the state’s constitution to limit marriage to unions between a man and a woman. But when the unlikely legal team of David Boies and Ted Olson, who faced off against each other in Bush v. Gore, joined forces to challenge Proposition 8, the federal courts declared it unconstitutional under the US Constitution’s Equal Protection Clause. As in the DOMA case, the courts ruled that California had discriminated against same-sex couples without legal justification.

At bottom, the issue in both cases is whether governments have a legitimate reason to deny to same-sex couples the recognition, status, and benefits that they afford to opposite-sex couples who marry. Almost every court to examine that question in the past decade, including federal courts in New York, Massachusetts, and California, and state supreme courts in Iowa, Connecticut, Massachusetts, and California, has concluded that they do not. [continue]