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Supreme Court Agrees to Hear Two Cases on Gay Marriage

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Artemisia

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WASHINGTON — The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. Another case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California’s voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.

The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)
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And according to SCOTUS blog:

Arguments in gay marriage cases around Mar 25-27, decision around June 27.
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omg.
 
I would like to be optimistic given the absolute shellacking that the anti-gay marriage case took at trial - and post-trial one of the only "experts" they put up recanted his position - but I can't help be nervous about any case going up to the Supreme Court.
 
Dang son.

So just to be clear, could this court decision legalize gay marriage nationwide or do state governments have control over that? (Sorry, politics gump over here)
 
Mumei said:
I would like to be optimistic given the absolute shellacking that the anti-gay marriage case took at trial - and post-trial one of the only "experts" they put up recanted his position - but I can't help be nervous about any case going up to the Supreme Court.
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Same.
 
Mumei said:
I would like to be optimistic given the absolute shellacking that the anti-gay marriage case took at trial - and post-trial one of the only "experts" they put up recanted his position - but I can't help be nervous about any case going up to the Supreme Court.
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I can't blame you for being cautious. But odds are good at least.
It's quite interesting they took up 2 cases.
 
There is very little doubt in my mind that the Court will rule in favor of gay marriage. How sweeping those ruling may be is the only question.
 
Calling it: This will not end well for supporters of same-sex marriage. I'm expecting total defeat for the supporters, unfortunately.
 
Servbot24 said:
So just to be clear, could this court decision legalize gay marriage nationwide or do state governments have control over that? (Sorry, politics gump over here)
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If SCOTUS finds that the Equal Protection Clause applies to gays, and thus gay marriage, that would make it constitutional law, meaning states would not be able to ban gay marriage.
 
Patryn said:
Calling it: This will not end well for supporters of same-sex marriage. I'm expecting total defeat for the supporters, unfortunately.
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And what makes you say that other than the desire to say "I told you so" on what's basically a 50/50 bet?
 
http://www.supremecourt.gov/orders/courtorders/120712zr_3f14.pdf

p8v0S.png


Note the "In addition to..." parts. In both cases, the Court gave itself potential outs to avoid having to rule on the merits of either case.
 
I'm gonna start making popcorn plans now - Sweet kettle corn to eat while reading the (victorious) outcomes, and salty tear flavored for reading the inevitable meltdowns. Each with its own GIF, of course.
 
Servbot24 said:
Dang son.

So just to be clear, could this court decision legalize gay marriage nationwide or do state governments have control over that? (Sorry, politics gump over here)
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I don't think it would do so, but I think it would finally make unconstitutional the part of DOMA that tries to circumvent the full faith and credit of legal contracts between states that currently allows states without gay marriage to deny benefits of marriage to residents who were married in states with gay marriage.
 
Roberts would not allow this to proceed if he wasn't going to bend over backwards to make sure the court was going to end up on the "right side of history" - the Obamacare ruling signalled his stance on these things.

Still makes me nervous though.
 
I'm a bit scared. We probably have four sure votes. It's essentially up to Kennedy, who has written some really solid pro-equality opinions. Roberts could be a wild card; maybe he'll consider his place in history and decide that he doesn't want to be the dick that stood in the way of the inevitable.

Wow. Me.. a married man. That'd be so great. My eyes moisten thinking about it. I always knew it'd come down to this someday, and now, it could be so close.
 
Mumei said:
I would like to be optimistic given the absolute shellacking that the anti-gay marriage case took at trial - and post-trial one of the only "experts" they put up recanted his position - but I can't help be nervous about any case going up to the Supreme Court.
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I know how you feel, the ACA case really put me on edge. This one is a little more clear cut, but I'm still going to be nervous til the final call.

Stinkles said:
can't wait to read Scalia's tortured dissent.
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That will be the best part, if we thought his dissent on the ACA case was something...
 
Josh7289 said:
And what makes you say that other than the desire to say "I told you so" on what's basically a 50/50 bet?
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4 conservative justices on the court, 4 liberal justices on the court, and Justice Kennedy, the "swing vote." However, unlike Sandra Day O'Connor, who did serve as the swing vote on more than one occasion, Kennedy has mostly kept himself aligned with the conservative wing. There was some thought that he might trend more liberal as he got older, as has happened in the past, but so far this has not happened. Thus, under strict party voting, with Kennedy staying with the conservatives, gay marriage bans will be upheld by a 5-4 margin.
 
Josh7289 said:
And what makes you say that other than the desire to say "I told you so" on what's basically a 50/50 bet?
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The court tends to lean conservative right now. The Circuit Court on the Prop 8 case designed their ruling in such a way as to discourage the Supreme Court from reviewing it.

I view this as the conservative elements taking a chance to roll back the progress advocates for same-sex marriage have made before it's too late.

I hope I'm wrong though, and I very well could be.
 
It's still a majority conservative court. Maybe they're hearing the case now so they can rule against gay marriage before Obama gets a chance to appoint a new SCJ.
 
Am I understanding this right?

One case is challenging the actual ban on gay marriage, while the other is challenging whether or not same sex couples are entitled to the same benefits that heterosexual couples are?
 
"I assume their brief and oral argument will go heavily against standing for the Prop. 8 backers, but also will urge the SCt to affirm the 9th CA on the merits. Since the 9th CA decision is very different from Judge Walker's decision, I doubt that they will be asking the Court to rule as Judge Walker did.
The key point, though, is that if they succeed in challenging the backers on the standing issue, the case is over: Prop. 8 is gone under the 9th CA decision, because there is no one to defend it."

This right here is why I don't expect much. And, I don't think you'd have much of an issue (or as much) pulling in a Scalia or Roberts vote on the standing issue.
 
TangoAlphaLima said:
4 conservative justices on the court, 4 liberal justice on the court, and Justice Kennedy, the "swing vote." However, unlike Sandra Day O'Connor, who did serve as the swing vote on more than one occasion, Kennedy has mostly kept himself aligned with the conservative wing. There was some thought that he might trend more liberal as he got older, as has happened in the past, but so far this has not happened. Thus, under strict party voting, with Kennedy staying with the conservatives, gay marriage bans will be upheld by a 5-4 margin.
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Kennedy has a pretty good record on gay rights votes. He's not generally one to restrict rights, even if they do align with conservative ideology.
 
TangoAlphaLima said:
4 conservative justices on the court, 4 liberal justices on the court, and Justice Kennedy, the "swing vote." However, unlike Sandra Day O'Connor, who did serve as the swing vote on more than one occasion, Kennedy has mostly kept himself aligned with the conservative wing. There was some thought that he might trend more liberal as he got older, as has happened in the past, but so far this has not happened. Thus, under strict party voting, with Kennedy staying with the conservatives, gay marriage bans will be upheld by a 5-4 margin.
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And if they are held up, the U.S. will have enshrined inequality among a minority forever into the future. That's a pretty big problem for any supreme court justice to allow.
 
TangoAlphaLima said:
4 conservative justices on the court, 4 liberal justices on the court, and Justice Kennedy, the "swing vote." However, unlike Sandra Day O'Connor, who did serve as the swing vote on more than one occasion, Kennedy has mostly kept himself aligned with the conservative wing. There was some thought that he might trend more liberal as he got older, as has happened in the past, but so far this has not happened. Thus, under strict party voting, with Kennedy staying with the conservatives, gay marriage bans will be upheld by a 5-4 margin.
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I would bet everything on Roberts voting for it.

He does not want to be remembered as the Chief Justice who said no to gay marriage in the history books.
 
Beat me to it. Here's a couple of tidbits from SCOTUSblog's live blog:

3:13 - Lyle:
We have the orders now. Prop. 8 is grantred. So is Windsor. Those are the only two marriage cases granted.

3:15 - Lyle:
Prop. 8 is granted on the petition question -- whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

3:17 - Lyle:
In Windsor, the government petition (12-307) is the one granted. In addition to the petition question -- whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.


3:21 - Lyle:
Trying to sort this all out, it is clear that the Court has agreed to consider the merits case in Prop. 8, because that is what the petition presented as its question, but that it is also going to address whether the proponents had a right to pursue their case. If the Court were to find that the proponents did not have Art. III standing, that is the end of the matter: there would be no review on the merits of Proposition 8, or of the 9th CA decision striking it down.

3:23 - Lyle:
Trying to sort out DOMA: The case has agreed to consider the merits issue of the constitutionality of DOMA Section 3, it has also given itself the option of not deciding that issue. If it finds that neither the Executive Branch could bring its appeal, and that BLAG lacked Art. III standing, then presumably both of those petitions would be denied. At that point, then, the Court might have to consider whether it wants to hear another DOMA case. But that probably would not be done in time for this term's close.

3:25 - Lyle:
There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

3:26 - Lyle:
BTW Although the Court is ruling on Prop. 8, there is nothing in the order that would lift the 9th CA's stay. So marriage licenses in Calif. will have to wait until this case is decided.

3:29 - Tom:
The arguments very likely will be March 25-27, and a decision is very likely around June 27.

3:40 - Lyle:
Don't bet the farm on it, but I would not be surprised if the Chief Justice allows same-day release of the audiotapes in the marriage case arguments, probably in March. There will be no live-streaming of it, and no TV or radio broadcast.
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Patryn said:
The court tends to lean conservative right now. The Circuit Court on the Prop 8 case designed their ruling in such a way as to discourage the Supreme Court from reviewing it.

I view this as the conservative elements taking a chance to roll back the progress advocates for same-sex marriage have made before it's too late.

I hope I'm wrong though, and I very well could be.
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It's not a conservative court on gay rights cases -- Kennedy has been the author of the biggest gay rights cases in the past decade or so. They can't "roll back" anything besides perserving the status quo.

Ultimately, the court gave themselves an out not to even look at the merits of the cases: Both cases ask if the people that intervened have standing to argue these cases because the governments refused to defend them. If not, then the courts don't even have to argue anything on the merits and can side with equality. They basically gave themselves an out.
 
teiresias said:
Roberts would not allow this to proceed if he wasn't going to bend over backwards to make sure the court was going to end up on the "right side of history" - the Obamacare ruling signalled his stance on these things.

Still makes me nervous though.
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I was thinking the same, this court has been tainted due lto some really bad decisions and Roberts seems bent in correcting its legacy. Wonder how Kennedy will side as it was he who fetl the most betrayed on the Obamacare ruling.
 
Kennedy has already tipped his hand on where he comes down on this issue. If they reach the merits (big if) it will be 6-3 in favor of same sex marriage
 
TangoAlphaLima said:
4 conservative justices on the court, 4 liberal justices on the court, and Justice Kennedy, the "swing vote." However, unlike Sandra Day O'Connor, who did serve as the swing vote on more than one occasion, Kennedy has mostly kept himself aligned with the conservative wing. There was some thought that he might trend more liberal as he got older, as has happened in the past, but so far this has not happened. Thus, under strict party voting, with Kennedy staying with the conservatives, gay marriage bans will be upheld by a 5-4 margin.
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I have to highly disagree with your assertion of Kennedy on gay rights. This quote alone from Lawrence is powerful enough:

"this, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."
 
Artemisia said:
Am I understanding this right?

One case is challenging the actual ban on gay marriage, while the other is challenging whether or not same sex couples are entitled to the same benefits that heterosexual couples are?
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I believe so yes. This way they can pretty much take care of the whole mess with one decision.

Matt said:
Kennedy has a pretty good record on gay rights votes. He's not generally one to restrict rights, even if they do align with conservative ideology.
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Kusagari said:
I would bet everything on Roberts voting for it.

He does not want to be remembered as the Chief Justice who said no to gay marriage in the history books.
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I agree with both of you, but especially Kusagari. Roberts doesn't want to be the guy who was in charge of the court that stood in the way of a big civil rights issue.
 
ivysaur12 said:
It's not a conservative court on gay rights cases -- Kennedy has been the author of the biggest gay rights cases in the past decade or so. They can't "roll back" anything besides perserving the status quo.

Ultimately, the court gave themselves an out not to even look at the merits of the cases: Both cases ask if the people that intervened have standing to argue these cases because the governments refused to defend them. If not, then the courts don't even have to argue anything on the merits and can side with equality. They basically gave themselves an out.
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I could also see the court upholding Prop 8 while overturning DOMA.
 
There's no reason to assume that either case would nationalize same-sex marriage. In the Prop 8 case, the Ninth Circuit's opinion was very narrowly tailored so that it would establish no binding precedent on states other than CA.

It's possible that a SCOTUS majority could ignore that in favor of something closer to Walker's original ruling - that banning same-sex marriage is inherently unconstitutional - but Boies and Olson aren't likely to be making the case for that.

The DOMA case, meanwhile, only concerns Section 3 of DOMA, which bars the federal government from recognizing same-sex marriages. To my knowledge, there has yet to be a serious court challenge to Section 2, which allows states to refuse to recognize same-sex marriages from other states. That'll probably change soon, though.
 
Mumei said:
I would like to be optimistic given the absolute shellacking that the anti-gay marriage case took at trial - and post-trial one of the only "experts" they put up recanted his position - but I can't help be nervous about any case going up to the Supreme Court.
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Yeah this is how I'm feeling as well.
 
Mumei said:
I would like to be optimistic given the absolute shellacking that the anti-gay marriage case took at trial - and post-trial one of the only "experts" they put up recanted his position - but I can't help be nervous about any case going up to the Supreme Court.
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Same. Plus when you look at the idealogical divide on the court, it's easy to figure out who will certainly be opposed (Scalia, Thomas, Alito, Roberts). They'd just need one more vote (Kennedy?)
 
FoneBone said:
I could also see the court upholding Prop 8 while overturning DOMA.
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I think they're much more likely that:

1) They will not grant standing to ProtectMarriage, siding with AFER and resorting marriage equality to California without actually deciding on its merits to leave that for another day.
2) Decide that BLAG does have standing while overturning DOMA in a 5-4 or 6-3 decision.

Based on the questions asked, that's what my gut says.
 
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