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Marriage and Death on Wednesday's Agenda

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Wednesday, June 26, promises to be a big news day, for good or for bad.

First, the U.S. Supreme Court is expected to weigh in on the Defense of Marriage Act (DOMA) and California's Proposition 8, both of which deal with same-sex marriage.

DOMA defines marriage for all federal purposes as a legal union between a man and a woman. The case, United States v. Windsor, was brought on behalf of Edith "Edie" Windsor, who in 2009 lost her spouse of 44 years, Thea Spyer. According to the American Civil Liberties Union (ACLU), Windsor and Spyer had gotten married in Canada in 2007, and "were considered married by their home state of New York." But, because of DOMA, explains the ACLU, "Windsor was not able to claim the estate tax marital deduction that is available when the surviving spouse is of the opposite sex. In her lawsuit, Windsor is seeking to have DOMA declared unconstitutional and to obtain a refund of the federal estate tax that she was forced to pay following Spyer's death."

Proposition 8 was a 2008 California ballot initiative which struck down same-sex marriage in that state. The case now before SCOTUS, Hollingsworth v. Perry, challenges the constitutionality of Prop 8. Two lower courts that heard the case have ruled that Prop 8 is unconstitutional.

After that will come a life-and-death decision from Texas, where Kimberly McCarthy is scheduled to be the 500th prisoner executed in that state since a 1976 Supreme Court ruling that reinstated the death penalty as an option in this country. If a stay is not granted, the lethal injection will begin to flow at 6:00 pm CT.

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McCarthy's attorney has filed an appeal based on racial discrimination and quality of counsel. James Turnage, writing in The Guardian Express, summarizes:

[Maurie Levin, McCarthy's legal counsel since January] claims that the jury in the 2002 trial was selected on a racial basis. McCarthy is an African-American woman, and the neighbor she killed, Dorothy Booth, was a 71-year-old white woman.

Her trial was held in Dallas County. The population is 69% white and 23% black. Only one [African American] was on the jury of 13.

Out of an initial pool of 64 prospective jurors, only four non-whites made it through to the final selection. Of those four, three were ejected from the actual jury through peremptory strikes by prosecution lawyers.

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Texas has a history of excluding black men and women from their juries. In 1963, a Texas training manual instructed prosecutors not to "take Jews, negroes, dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or how well educated". A similar manual published in 1986 carried the memorable advice that it was "not advisable to select potential jurors with multiple gold chains around their necks or those who appear to be 'free thinkers'."

In 2005, three years after McCarthy was placed on death row, [an] investigation revealed that prosecutors were continuing their efforts to exclude non-white jurors.

Levin has also asked two members of the appeals board to recuse themselves because they were assistant district attorneys in Dallas County at the time of Ms. McCarthy's unfair jury selection.

A second part of the appeal centers around a Supreme Court decision that says appeals after conviction must be heard. Levin says McCarthy was given inadequate council after she was placed on death row. Levin said that none of McCarthy's appointed [attorneys] challenged what was obviously a racially biased jury.

On Monday, however, the Texas Court of Criminal Appeals refused to block the execution because, according to the Associated Press, "she should have raised her claims previously."

McCarthy has already seen two prior execution dates come and go. Her lawyer is now considering the remaining options.

My fingers are crossed in hopes that the Supreme Court will decide in favor of marriage equality in both cases, and that Texas will stop the execution (again). But I'm too old and jaded to be totally optimistic.

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Mary Shaw is a Philadelphia-based writer and activist, with a focus on politics, human rights, and social justice. She is a former Philadelphia Area Coordinator for the Nobel-Prize-winning human rights group Amnesty International, and her views (more...)

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