Although the justices may decide that the Defense of Marriage Act (DOMA), the federal law that defines marriage as the union of a man and a woman, some of them indicated during the two days of oral arguments that further judicial intervention may be unnecessary since the democratic process appears to be playing out on its own, with ballot victories for same-sex marriage and a swelling of popular support in its favor.

Could the movement for LGBT rights become a victim of its own political success? That question was hanging over Wednesday’s arguments in the case (United States v. Windsor) concerning the constitutionality of DOMA.

Chief Justice John Roberts, Jr. asked the attorney for the pro-equality side, “You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?”

Roberta Kaplan, the attorney, replied that for the purposes of the law, “I would, your honor.”

“Really?” Roberts shot back. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

Although Kaplan had just argued that “there has been a sea change” in American popular attitudes towards “the understanding of gay people and their relationships,” she then argued that, despite that newfound understanding from heterosexual Americans, gay men and women remain the targets of discrimination.

“No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” Kaplan argued.

But Paul Clement, a former Solicitor General under George W. Bush who represents the anti-equality side, jumped on the subject, applauding the democratic process and arguing that the rising tide of support for marriage equality was reason enough for the Supreme Court to sidestep the issue. “The reason there has been a sea change,” said Clement, “is a combination of political power, as defined by this court’s cases as getting the attention of lawmakers; certainly they have that. But it’s also persuasion. That’s what the democratic process requires. You have to persuade somebody you’re right.”

Clement’s argument was anticipated the previous day, during oral arguments in the other marriage equality case the justices heard, Hollingsworth v. Perry, which is seeking to overturn Proposition 8, the 2008 voter-approved law that prohibits gay marriage in California.

Charles J. Cooper, a lawyer representing marriage equality opponents, told the high court on Tuesday, “We would submit to you that that question is properly decided by the people themselves.”

The court has always been sensitive to public opinion, with the justices often debating the evolving national standards, and how much these changes should influence their interpretation of the United States’ 223-year-old Constitution.

The question of political power is also important, as the justices determine what standard they will use in ruling whether DOMA and Proposition 8 are unconstitutional. LGBT activists want a “heightened scrutiny” standard—meaning the law must be substantially related to an important government interest—similar to the one applied in gender discrimination cases.

The test of that scrutiny includes the history of discrimination against the group and its political power relative to the rest of society. Although gay men and women have a history of discrimination, the group’s political power is rising.

In the case of gay marriage, the conventional wisdom has shifted so rapidly that the justices may be leery of forcing the issue from the bench. Since 1996, the year DOMA was enacted, public opposition to marriage equality has reversed into public support.

On the other hand, approximately 40 states prohibit same-sex marriage, with most having voter-approved constitutional bans. It was last November when the first state referendums approving same-sex marriage were passed.

Justice Anthony Kennedy, who is widely viewed as the court’s deciding vote, has a history of supporting the states’ authority in setting their own policies. During the oral arguments, he expressed skepticism that the high court should issue a broad ruling in the Hollingsworth case, which was heard on Tuesday, as a means for introducing a national right to gay marriage. Kennedy did, however, question DOMA’s constitutionality.

“I just wonder if this case was properly granted,” Justice Anthony Kennedy offered, deflating the preliminary hopes of many that he will bring to bear the same personal process that voted in 2003 to overturn sodomy laws. “We have five years of information to pose against 2,000 years of history or more,” he added.

“You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” asked Justice Samuel Alito, Jr., appointed to the court by George W. Bush in 2006.

Even Justice Sonia Sotomayor, who was appointed in 2009 by Barack Obama, asked, “Why is taking a case now the answer?”

The case, Hollingsworth, was filed in 2009 by Theodore Olson, a former Solicitor General in the George W. Bush White House, and David Boies, a power broker in the Democratic Party. (Both became famous as the attorneys who represented the Bush and Gore camps, respectively, during the contentious battle for Florida’s electoral votes in the post-script to the 2000 Presidential Election.) They argue that California voters violated the U.S. Constitution in 2008 when they approved Proposition 8, overriding a decision of the state’s Supreme Court that permitted gay marriages.

Representing the groups that support the ban on marriage equality, attorney Charles Cooper told the high court that “the state’s interest and society’s interest in what we have framed as ‘responsible procreation’ is vital.” He also cautioned against the consequences of a “redefinition” of marriage.

Justice Kennedy, who was appointed to the high court in 1988 by Ronald Reagan, expressed concern for the children of same-sex parents whose legal status was in question.

“There [are] some 40,000 children in California that live with same-sex parents,” Kennedy noted. “They want their parents to have full recognition and full status. The voice of those children is important.”

Justice Elena Kagan (Obama, 2010) also took up the family question, asking Cooper how letting gay couples get married will hurt traditional marriage. “How does this cause and effect work?” Kagan wondered.

Justice Stephen Breyer (Clinton, 1994) addressed those married couples—gay and straight—who don’t have children because of medical reasons. “There are lots of people who get married who can’t have children,” Breyer noted.

The “wit” of the high court, Justice Antonin Scalia (Reagan, 1986) observed, “I suppose we could have a questionnaire at the marriage desk asking, ‘Are you fertile?’”

Another matter the justices took up was whether the plaintiffs—opponents of marriage equality—have any legal standing to actually challenge the state court ruling that overturned Proposition 8. If the court decides that they have no standing, it would effectively leave in place that state court ruling striking down the gay marriage ban.

Olson, representing the pro-equality side, told the justices that Proposition 8 “walls off gays and lesbians from marriage,” and that by permitting a ban on same-sex marriage to stand, the court would be “labeling their most sacred relationship” as “not O.K.”

SCOTUS_2013_03_26

On Tuesday, March 26, the high court heard arguments in Hollingsworth v. Perry, the case concerning the constitutionality of Proposition 8, California’s ban on same-sex marriage.  On Wednesday, March 27, the justice heard arguments in United States v. Windsor, the challenges of the constitutionality of a section of the 1996 federal Defense of Marriage Act (DOMA).

While both cases are landmark in their importance to the future of gay rights, the Prop. 8 case, Hollingsworth, could result in both changes to the law and the status of LGBT Americans, a Brown v. the Board of Education for LGBT rights.

In the case of Hollingsworth, the Supremes have an opportunity to decide on the question of whether same-sex couples have a constitutionally-protected right to marry.

The DOMA case, Windsor, is far more limited in its scope. It doesn’t ask who has the right to marry, but rather whether legally-married same-sex couples should have access to the same federal benefits as married heterosexual couples.

In 2008, after the California Supreme Court granted gay couples the right to marry, voters passed Prop. 8, prohibiting same-sex marriage. That meant that voters took away a right that a court had already established exists. Subsequent federal courts have ruled Prop. 8 to be unconstitutional.

The brief challenging Proposition 8 argues that the voter-approved law is unconstitutional “because it denies gay men and lesbians their fundamental right to marry without furthering a legitimate—let alone a compelling—state interest.”

Time and again, the Supreme Court has ruled that marriage is a fundamental right, and the court has never limited that right to those who choose to procreate. The brief says that the California law was lack “enacted solely for the purpose of making gay men and lesbians unequal to everyone else,” a violation of the Constitution.

Additionally, the Obama Administration filed its own brief arguing in support of protecting same-sex marriage in California and the eight other states that recognize civil unions and domestic partnerships.

Defenders of Proposition 8 argue that the Equal Protection Clause of the Constitution’s 14th Amendment does not require California to redefine marriage to include gay couples.

How will the justice rule? On the fuzzy end of the lollipop, they might decide that the supporters of Prop. 8 do not have legal standing to challenge the California law (disliking gays not being considered enough of a “compelling interest”), and send the case back to the lower courts.

They might also conclude that their decision only applies to California, rendering the decision less sweeping than LGBT rights supporters might wish.

But if the Supremes decide that it’s time to “take out the trash,” they could rule that—nationwide— marriage is a protected right for same-sex couples. It’s a long way to June, when the ruling is likely to be handed down.

In a way, this is how the Republicans are starting to look following the recent breach within the ranks over LGBT rights, and specifically marriage equality, like a two-headed snake working at cross purposes against itself.

Assuming for a minute that there was something courageous, and not remotely self-serving, about the self-“outing” this week of U.S. Sen. Rob Portman (R-Ohio) as the father of a gay son—especially since it occurred weeks after other national Republicans gave him cover by their calls for the Supreme Court to overturn the Defense of Marriage Act (DOMA) and California’s Proposition 8—how does that “courage” translate into wider policy shifts by the GOP leadership?

First off, most of the Big Money donors in the GOP are either active or casual supporters of LGBT rights. Of the rest, a majority are libertarians and don’t care about the issue one way or the other, and just a tiny fraction (like the Koch Brothers, or the DeVos family of Amway) is devoted to conservative Christian causes.

But even after Portman’s family-motivated conversion to the ranks of the equality-loving, the nation’s highest-ranking Republican, U.S. House Speaker John Boehner, a fellow Ohioan, still held to the party line, telling ABC News on Sunday, “I believe that marriage is the union of one man and one woman,” and adding for good measure, “I can’t imagine that position would ever change.”

So who “speaks” for the Grand Old Party, the “Speaker,” or party mandarins like Jeb Bush, who told C-PAC that the Republicans’ homophobic rhetoric is scaring the ‘normals’?

I mention the former Florida governor (the “Is He, Or Isn’t He?”—as in running for President—Boy of 2013) to draw attention to a fundamental political truth of this off-election year: Boehner’s playing-to-the-intolerant-wing of the GOP is still the surer way to the 2016 nod than the pragmatism of a Jeb or the tolerance and fair-mindedness of a Jon Huntsman, Jr. (who demonstrated real courage and leadership with his editorial last month in The American Conservative in support of marriage equality).

But Republican presidential primaries are decided by social and religious conservatives, not moderates, centrists, or even libertarians. The grassroots organizations and activists (who were first mobilized a decade ago by Karl Rove) who make the phone calls and send in donations consist of fundamentalist and evangelical Christians (who have little use for the Mormon Huntsman, or even his distant cousin, Mitt Romney).

Those activists take their cues, not from Huntsman, but from the likes of Limbaugh (who, unlike the former Utah governor, never voted once for Ronald Reagan; how’s that feel Ditto-tards?). And all GOP presidential primary math requires some measure of these values voters, who still aren’t “queer” for gay marriage.

Many of those gay eyes are filled with hope, at least in part because Kennedy’s name appears on two landmark high court ruling concerning LGBT rights. In Romer v. Evans (1996), he ruled to strike down a Colorado law that prohibited its cities from passing municipal anti-discrimination laws based on sexual identity. In Lawrence v. Texas (2003), Kennedy voted to strike down sodomy laws in the Lone Star State (and 13 others).

But if they read the fine print on these rulings, those hopeful eyes would see that neither of the decisions concerned marriage, and Kennedy himself sent the owners of some of those eyeballs scrambling for the Visine last week, when he told reporters in California that he has concerns about the Supreme Court taking cases that deal with political issues including health care reform, immigration, and—wait for it—same-sex marriage.

Noting that there’s nothing democratic about nine unelected judges, each possessed of a “narrow legal background,” making the major legal decisions for a great nation, Kennedy opined, “I think it’s a serious problem.”

Kennedy, who was appointed to the high court in 1988 by President Ronald Reagan, and his fellow justices are set to hear the historic cases—Hollingsworth v. Perry (which deals with California’s Proposition 8, the state’s voter-approved law that bans gay marriages in the Golden State) and U.S. v. Windsor (which concerns the Defense of Marriage Act, the 1996 law that defines marriage for federal purposes as between one man and one woman)—on March 26 and 27, respectively.

Some LGBT activists warn that Kennedy’s comments signal that he may restrain himself when it comes to making new law from the bench, at least in case of marriage equality. That restraint could lead to him favoring a narrow decision in the Hollingsworth/Prop 8 case, which could allow for gay marriages to be performed in California, but not in the rest of the country.

Despite his opinions in the Lawrence and Romer decisions, Kennedy has historically favored states’ rights arguments, and he may prefer a ruling that is mindful of the will of the 30 states that have amended their constitutions to prohibit marriage equality.

The bold approach by Kennedy—or any of the other Supremes, for that matter—might result in recognition of a constitutional right to same-sex marriage, which would trigger the striking down of all those laws.

In the end, the question hinges on whether or not Kennedy or the other justices can be convinced that same-sex marriage is a constitutional right. An X-Factor to be sure.

Although the federal government is not a party to the case (Hollingsworth v. Perry), nor was it required to take a position in it, the high-profile attorneys (they had their own HBO movie, for crying out loud) who filed the challenge, Theodore Olson and David Boies, and gay rights groups, worked tirelessly to convince the administration that it had a moral duty to speak out in favor of their brief.

The feds previously filed a brief in the marriage equality case in which it is a party (U.S. v. Windsor); but in that case, marriage equality supporters are only challenging the constitutionality of the part of the Defense of Marriage Act (DOMA) that defines marriage as the union of a man and a woman for federal purposes. (A second part of the 1996 law, which says that states are not required to recognize same-sex marriages contracted elsewhere, is not before the high court.)

In Windsor, the Supreme Court’s ruling will at best decide whether the federal government can discriminate against same-sex couples, even if they were married in the nine states or the District of Columbia, where such unions are permitted.

The Hollingsworth case, which challenges California’s voter-approved Proposition 8, offers the broader question of whether a constitutional right to same-sex marriage exists even in states that don’t allow it.

Like the arguments made by a prominent group of national Republicans last week, the government’s brief argues any law attempting to prohibit marriage equality must be subjected to heightened scrutiny, because it singles out a class of Americans who have historically been subjected to discrimination, for unequal treatment under the law.

The administration’s brief argues that the factors that led earlier courts to require heightened scrutiny for laws regarding gender and illegitimacy should also require it for ones that address sexual orientation.

Although it isn’t certain how the Supremes will rule on that question—they could decide that their ruling only applies to California, or avoid the matter on technical grounds—the administration’s brief is significant since until recently it was believed they would stay out of the Prop 8 fight, in part owing to the President’s public stance on gay marriage.

Last year, Obama told ABC News, “I continue to believe that this is an issue that is going to be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

On the other hand, the President has consistently opposed Proposition 8, going back to his 2008 candidacy. The Hollingsworth case is scheduled to be argued before the Supreme Court on March 26, with the Windsor case scheduled for the following day. The administration’s lawyer—most likely the Solicitor General—is sure to be questioned closely (especially from Scalia, but just as likely from the “liberal” wing of the court) about inconsistencies in their positions. Tick-tock-tick-tock.

On Tuesday (yesterday), the State Senate Committee on Children, Families, and Elder Affairs postponed the reading of the Families First bill (or known less prosaically as SB 196, legislation that was introduced by the committee’s chairperson, State Senator Eleanor Sobel (D-Hollywood), which would allow gay couples and—here’s the ‘red herring’ that supporters hope will serve as a sop to fair-minded independents, libertarians, and admirers of old maid spinster sisters everywhere—unmarried Floridians access to important legal protections for themselves and their families.

The bill stalled in committee, when Sobel temporarily postponing a vote after acknowledging it would be defeated. Sobel said she will retool the language to more closely match that of local ordinances permitting domestic partnerships.

As a press release sent out by Equality Florida pointed out, nearly half of Floridians already live in a community with a domestic partnership registry, including Broward, Palm Beach, and Miami-Dade counties, along with “redder” Sunshine States localities like Pinellas, Volusia, and Orange counties, as well as Key West, Tampa, Orlando, Gainesville, Tavares, Clearwater, and North Miami.

Locally in the Tri-County area, support for passage of the bill was to be found in all political stripes, among them both former Broward Sheriff Al Lamberti and the man who in November beat him for the job, Sheriff Scott Israel, who released a statement on Monday urging lawmakers to support the bill and equality for all Floridians.

According to Sobel, her Senate co-sponsors, and their supporters, a statewide law would ensure all Floridians “access to protections,” simplifying the process for providing benefits to domestic partners, no matter where they in the state they live.

Critics—and even some of us who like the idea but cringe at the nomenclature—say that the bill is named with an eye to, um, deceiving, with the spirit of the legislation sticking its finger in the eye of the law as it currently exists.  This is what is most likely to gum up passage of the bill from committee to a further hearing.

At issue is language which opponents and Well-Meaning Pointer-Outters say may—or does—violate Article I, Section 27 of the Florida Marriage Protection Act (FMPA), which was passed (under the name Amendment 2) in 2008 by 62 percent of state voters, which makes it unconstitutional to create any form of union that may be “treated as marriage” or the “substantial equivalent” of marriage, which would seem to disqualify SB 196 from seeing the light of day. (You will know by the time you’ve read this.)

Sobel acknowledged—although too late to prevent some egg spatter on her face—that the language of FMPA will trump something as vitally needed as her bill, and open it to legal challenges.

THAT HAVING BEEN SAID: There really has never been a better time to try and get the “camel’s nose under the tent,” with a law that at least superficially recognizes that we’re here, we’re, etc. There’s a reason the Supremes are poised to hear cases about DOMA and Prop 8 within a few months’ time, and not JUST because Chief Justice John Roberts is tired of his wife and kids bitching about demographics and destiny (although I have to believe there’s a part of that, even at Scalia’s crib—although, come to think, maybe not at Clarence Thomas’ place).

It also takes place within the larger context of a national conversation about the evils of anti-gay bullying, the presence of the nation’s first no-hold-barred “openly-gay-friendly” Chief Executive (although Bill Clinton truly paved the way, he will always have DOMA hanging around his neck like a dead albatross, something for which LGBT Americans can thank the party of homophobia, the GOP), and within a state that is “coming out of the closet” in recognizing the contributions of its gay Floridians.

The bill’s reading was postponed on the sixth anniversary of the death of Lisa Pond at Jackson Memorial Hospital. Pond’s partner of 18 years (and with whom she had raised four kids), Janice Langbehn, was denied visitation by hospital officials because of Florida’s ‘black hole’ against progress in this vital realm of American fairness and family equality.

That case brought national attention to the plight of LGBT partners and hospital visitation and other rights, and prompted President Obama to issue an Executive Memo that requires hospitals receiving federal Medicaid funding to treat domestic partners as family members. In announcing the change to federal policy, Obama himself telephone Langbehn from Air Force One. (Obama also presented Langbehn—who calls herself an “accidental activist”—with the Presidential Citizens Medal).

Lastly, we have Rick Scott, who is certainly no supporter of the gay “agenda,” but does that mean he must be our foe (something Lincoln said about making friends of our enemies and thereby defeating those same suddenly springs to mind)?

Surely Great Scott—business executive that he once was, and admirer of the bottom line that he remains—isn’t blind to the enormous impact that LGBT tourists and residents alike have to the Sunshine State’s economy and quality of life (I’m guessing he and the Mrs. have lived next to at least ONE gay power couple possessing an immaculate lawn), from Gay Days Orlando to Miami Beach Gay Pride to the Tampa International Gay and Lesbian International Film Festival (one of the world’s largest), to PrideFest and Wicked Wilton right here in our—HIS—own Gayborhood. In my experience, no matter how red the Republican, green erases all thoughts about pink.

What can I say—politics makes for strange bedfellows.

Resnick, an attorney and partner (shareholder) with the law firm of Gray-Robinson, PA, a mega-practice with offices in 10 Florida cities, is seeking to lobby the Broward County School Board on behalf of a client, Community Education Partner, Inc., despite a voter-approved change to the county charter that “regulates the conduct of elected officials, appointed officials, and public employees through an enacted Code of Ethics.”

The mayor was given permission by Wilton Manors City Attorney Kerry Ezrol, who submitted a letter to Resnick on December 12, 2012 that advised, “The restriction on lobbying, as set forth in the Code of Ethics, would not legally apply to members of the City Commission.”

Ezrol based his opinion on a 2012 change to Wilton Manors’ city charter, which the city’s attorneys say allows officials to abide by the state’s less restrictive regulations governing the conduct of elected and appointed politicians. Resnick supported the city charter change.

The Broward County Inspector General, John Scott, suggested in a statement that his office may use the county’s charter to trump changes to local charters.

“Soon the [Office of Inspector General] will be conducting a countywide compliance review of outside employment disclosures, including lobbying by elected officials. Once we determine the results, we will proceed accordingly,” the inspector general wrote.

“We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate,” the President declared.

“If we are truly created equal, then surely the love we commit to one another must be equal as well,” Obama, 51, told the assembled estimated crowd of 600,000 that had gathered on the National Mall in front of the Capitol.

The President said that “our generation’s task” is to establish true “life and liberty” for every American. He also acknowledged the still-remaining deep divides in national politics.

“Being true to our founding documents does not require us to agree on every contour of life,” he offered. “It does not mean we all define liberty in exactly the same way or follow the same precise path to happiness.”

“Progress does not compel us to settle centuries-long debates about the role of government for all time, but it does require us to act in our time,” added Obama, who took the oath of office for a second time on Monday, after fulfilling his constitutionally-mandated requirement that he be sworn in by noon on January 20.

After that first swearing in ceremony, the President trumpeted the shift in America towards a more progressive outlook, and said of those who stand for antiquated ideas that “the ground has shifted beneath them, that the stale political arguments that have consumed us for so long no longer apply.”

The president took his second inaugural oath on January 21, which this year also commemorated the day Americans honor the late civil rights leader Rev. Dr. Martin Luther King Jr.

To mark the day and the occasion, Obama’s oath was administered by Chief Justice John Roberts while the President’s hand was placed on two Bibles: one that belonged to Dr. King and another formerly owned by President Abraham Lincoln.

To drive home his support for LGBT rights, the President selected as his inaugural poet openly-gay Cuban-American Richard Blanco, who was born in Cuba and raised in Miami, graduating with a master’s degree in Fine Arts from Florida International University.

Blanco, 44, delivered a 550 word poem entitled “One Today,” in which he described everyday American life as something greater than the sum of its parts, invoking images such as “silver trucks heavy with oil or paper—bricks or milk, teeming over highways alongside us, on our way to clean tables, read ledgers, or save lives.”

Trantalis and Rodstrom finished ahead of Chuck Black and Lester Zalewski in a special election that drew fewer than 2,500 voters.

The road to the runoff between Rodstrom and Trantalis began when the latter, an LGBT rights advocate and attorney with a practice based in Wilton Manors, left the District 2 seat after serving a single term from 2003 to 2006.

Rodstrom succeeded Trantalis as District 2 commissioner, and won two additional terms, the last one in January 2012.  Weeks later, she announced that she would run for the Broward County Commission seat being vacated by her term-limited husband, former Broward Mayor John Rodstrom, a move that drew sharp criticism and accusations of careerism.

Because of Florida’s resign-to-run law, passed in 1970, Rodstrom was required to give up her city commission seat in November, having already lost the race county commission seat in August.

In Tuesday’s matchup, the results with all precincts reporting showed Rodstrom with 1,154 votes (47 percent) and Trantalis with 1,026 votes (42 percent). Black in third and Zalewski in fourth place, respectively, garnered a total of 291 votes, or 12 percent combined.

Because no candidate netted a required 50 percent of the vote-plus-one, the runoff between Trantalis and Rodstrom will be held on March 12.

“The results from yesterday have shown that we can win this race,” Trantalis told the Agenda.

He also blamed lackluster media coverage of the District 2 race for apathy at the polls. “The lack of attention given to the election by the gay press is reflected in the poor turnout of LGBT voters. We should be ashamed of ourselves for being so complacent.

“At a time when our rights are continually being challenged, our failure to support candidates in high profile positions will only lead to our personal defeat,” Trantalis added. “We seemed obsessed with national figures and their personal lives and personal tastes. A lot of good that will do us. We cannot let down our guard in our struggle for equal rights. Our success lies right here at home.”