Monday Morning Quarterbacking the Supreme Court

01 July 2013
Published in Blog

 By Seema Iyer, Esq.

July 1, 2013

DOMA lost. Love won. Holy matrimony – it’s been one hell of a Supreme Court post-season!

The last month has certainly felt like a January. Every week with playoff games (decision days) that left us with some crushing defeats (Shelby v. Holder), hollow victories (Fisher v. University of TX), an out of pocket play that rewrote history (Hollingsworth v. Perry) and the mother of all games between the undefeated champions, the United States of America, and the underdogs, Windsor – a Superbowl for the books.

In full post-rainbow parade hangover haze, no analogy here folks; there were actually several parades yesterday (think Edith Windsor as the Gay Pride version of Peyton Manning)….. here are your SCOTUS Superbowl 2013 highlights:

A struggling offense led the Supremes to punt Fisher v. University of TX back to the 5th Circuit Court which will likely punt down to the lower district Court. The reasoning, in this affirmative action case, was that the lower court didn’t apply the correct formula, the strict scrutiny test. The test is whether the University demonstrated that there was no other way to achieve diversity unless they use race as a factor in admissions.

So why the punt? Because the lower court didn’t find enough facts to support a decision either way. The good news is that SCOTUS did not overturn prior cases (Grutter v. Bollinger, Regents of the University of California v. Bakke) that upheld affirmative action in college admissions. Bottom line, diversity in education remains a compelling state interest and affirmative action lives to fight another day.

Next up, a rivalry as storied as the Giants and the Cowboys. Shelby v. Holder reconsidered the constitutionality of the Voting Rights Act of 1965, specifically Section 5 and pit Southern conservatives against the NAACP. Section 5 gives the feds the right to “preclear” any proposed changes to voting procedure, practice or location. The Act only applies to certain states and municipalities, mostly, but not exclusively, in the South. Its purpose was to get rid of discrimination at the polls. Think back to Jim Crow South when qualified black voters were turned away for not passing literacy tests.

So what did the Supremes do? In the most unpredicted move since Tim Tebow signed with the Jets, SCOTUS doesn’t rule on Section 5 at all. Instead they rule that Section 4, the formula that decides which jurisdictions are subject to Section 5, is unconstitutional. When Section 4 falls it knocks down Section 5; our safeguard that protects voting equality has been tackled.

By the time final decision day of the term rolls around my tailgating ritual is tight. Beginning with a few dozen cups of coffee, I pre-game with Amy Howe heads the show giving color commentary better than Terry Bradshaw and Jimmy Johnson combined. Rapid fire analysis and projections on which way what Justice will go from inside the high Court. Kickoff is 10am; the offensive line, CJ Roberts, Alito, Thomas, Scalia on the right and the defensive line, Kagan, Sotomayor, Breyer, Ginsburg on the left of the line of scrimmage…….we wait…….hoping for one of the Supremes to go offsides. The one to watch is Kennedy, a la Michael Vick, will he pass right or run the ball left?

At 10:02am the decision in U.S. v. Windsor is out. The 1996 Defense of Marriage Act (DOMA) has been ruled unconstitutional. A touchdown right out of the gate! Same-sex marriages will be entitled to the same federal benefits that heterosexual marriages have; however, this only pertains to states where same-sex marriage is legal.  

If a same-sex couple gets married in a state where the union is legal, then move to a state where it is not, what happens to their benefits? That question remains unresolved and the Supreme Court did not rule on whether there is a federal constitutional right to gay marriage. Clearly a reminder that we are still in the first quarter of the game.

The other big play of the day was Hollingsworth v. Perry which considered Proposition 8, an initiative that would withdraw California’s right to gay marriage. The Court, in fascinating only-for-us-law-geeks language, found that the party who brought the case did so improperly. So, the ruling from the lower court stands. No Prop 8. Fire up the Cher playlist and let the wedding bells resume.

By 11:35AM the game is over. Time to pack up the foam finger and wash off the face-paint. An historic triumph brings hope for next season. Will the champions hold onto their title? Expect more bench-gripping action in the fall…….on the field and in the Court.


Seema Iyer is an attorney in New York City with her own practice that specializes in Criminal Defense, Civil Rights and Constitutional Law. Seema is also a Legal Contributor at Arise News and frequent guest on MSNBC. Follow her on Twitter @seemaiyeresq


Are You a Bigot if You Oppose Same Sex Marriage?

03 April 2013
Published in Blog

(CNN) -- If someone today argued for laws to legally bar interracial marriage that person would universally be labeled a bigot.

But in 1967 when the U.S. Supreme Court in Loving v. Virginia struck down state laws prohibiting interracial marriage, 73% of Americans still supported them. Did that mean that more than 70% of Americans at that time were bigots? No. But there certainly came a time that you were one if you continued advocating for such discriminatory laws.

Are we at that point yet with gay marriage? Is it fair to label a person a bigot simply for arguing that marriage should only be between a man and a woman?

That's the first issue we discussed in Episode 2 of the new weekly CNN Radio podcast "The Big Three," co-hosted by CNN opinion contributors Margaret Hoover, John Avlon and myself. Each week we look at three big issues making news. (For those catching up, our first episode is here.)

To listen to this episode of "The Big Three," click on the Soundcloud audio player on this page. Or you can find us on iTunes.

In the new episode, here are the three topics we chose to discuss/fight/yell/joke about:

1. Are you a bigot if you oppose gay marriage? Margaret Hoover raised the issue of whether we throw the word "bigot" around too quickly. She also posed the thought-provoking question: Would we would have called President Obama a bigot a year ago before he embraced marriage equality?

My response is "Yes" with an asterisk. The asterisk being that I won't yet call anyone who opposes marriage equality a bigot simply because they believe marriage should be between a man and woman. (If you demonize gays, than I will call you one now.) But in time, that label will be accurate for those who continue to advocate discrimination. John Avlon, being the centrist that he is, made a very fair point that this is a process and it will take time.

To continue reading or to hear the podcast please click HERE to go to 

Why are Gay People less American than Straight People?

09 May 2012
Published in Blog

Why do you support discrimination against a group of Americans? This is just one of the questions that I ask myself when I encounter people opposed to gay marriage. Other questions that pop into my head include: What makes Americans who are gay less American than you? Why are they not entitled to the same protections under our system of laws that you are?

The issue of marriage equality to me is not a nuanced legal issue. It’s not a moral issue. It’s simply a question of: Do you think all Americans should be treated equally?

I have long supported marriage equality simply because I oppose discrimination against any American, whether it’s based on race, gender, religion, ethnicity, sexual orientation or for other reason people on the right can think of to try and divide us. There is nothing more un-American and inconsistent with the values and ideals of this nation than discrimination.

Why should a couple in love be precluded from being married - and enjoying all the legal and emotional benefits that it provides-solely because of their sexual orientation?  Opponents to marriage equality should be required to meet with gay couples and tell them to their face that they are not entitled to the same rights as other American couples. I want to hear them explain to the gay couple if one of them is sick in the hospital, why the other can't visit the person like any other spouse? Why should a gay couple not have the same rights when it comes to inheritance and tax laws? 

I truly believe in the words famously set forth in our Declaration of Independence which provide: “We hold these truths to be self-evident, that all men are created equal…” If we are all created equal, should we not all be treated equally? In fact, equal protection under the law is guaranteed to all Americans – even gay ones- by the 14th amendment to the Constitution.

Opposing gay marriage is no different than opposing the civil rights movement. Indeed, much of the language used by opponents to gay marriage sounds eerily similar to the language used by those who opposed interracial marriage. Opponents to interracial marriage typically cited religious reasons claiming God didn't want people of different races to mix because it was against the laws of nature. Sound familiar?

Up until the landmark 1967 Supreme Court decision in “Loving vs. Virginia,” there were 16 States which still made it a crime for Blacks and Whites to marry. (The 16 States which banned interracial marriage at that time are also among the States which ban gay marriage- coincidence?)

The interracial couple in the Loving case had actually been sentenced to one year in jail for their “crime” of simply wanting to be married to each other. But the Supreme Court struck down those laws, linking the right to marry with civil rights and the basic liberties promised to all Americans by our Constitution: “Marriage is one of the basic civil rights of man…The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

Many who oppose gay marriage - such as former Republican presidential candidate Rick Santorum - have cited religious scripture as the reason. But religious text can not be the basis for our civil laws.  There must be a legitimate policy reason to enact a law which discriminates against Americans and, to date, none has been articulated. As Thomas Jefferson stated and numerous courts have quoted:  "...the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state." 

To those who support marriage equality, its time is near. President Obama’s statement on Wednesday that he now personally favors gay marriage is reminiscent of when President Lyndon Johnson stood up for the Civil Rights Act of 1964 and The Voting Rights Act of 1965 during the civil rights struggle. 

Recent public opinion polls indicate that approximately 50% of Americans support gay marriage and only 45% oppose it. These numbers are actually amazing when you contrast them with public opinion polls in the late 1960’s which found that only about 20% of Americans approved of interracial marriages. It wasn't until over 20 years later before a majority of Americans accepted interracial marriage -- now over 86% of Americans support it. Thus, indicating that the attitudes of Americans do evolve for the better given sufficient time and exposure.

But the increasing acceptance of gay marriage and President Obama’s statement alone will not end the struggle for marriage equality. It will take the US Supreme Court – just as in Loving vs. Virginia- to end this State sanctioned discrimination. This is the likely result since the Supreme Courts of Iowa and Connecticut as well as the US Court of Appeals for the Ninth Circuit have already found laws barring gay marriage as unconstitutional discrimination.

And to those who favor discrimination against their fellow Americans, there is no doubt they will be looked at like those who opposed the civil rights movement. They will simply find themselves on the wrong side of history.