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View Full Version : Let the games begin....US Supreme Court agrees to hear cases against Prop 8 and DOMA.


Flavia P.
Dec 7th, 2012, 09:01 PM
This is historic, scary, insane, exciting, amusing, shocking........everything rolled into one. Like, this is the big one. The decision SCOTUS agrees to in these cases could mean legal federal marriage equality countrywide. It could mean anti-gay discrimination is not unconstitutional, which would be a huge blow to gay rights countrywide. According to the latest news SCOTUS will also rule on standing regarding Prop 8 and has opened up the fundamental question to the right of gay marriage.

OMG, I have a headache and I'm dizzy. All the fighting could be coming to an end.

SUPREME COURT TO REVIEW PROPOSITION 8 AND WINDSOR DOMA CASE
http://www.towleroad.com/2012/12/supreme-court-to-review-proposition-8-and-windsor-doma-case.html

The Supreme Court announced this afternoon that it will hear the federal challenge to Proposition 8 and the Edie Windsor DOMA case, marking the first time the high court has heard a marriage equality case.

As far as timing goes, arguments in the cases should happen around March 25-27, with a decision coming in late June.

Adds SCOTUSblog:

The Court's two orders on the marriage cases do not include a word about two other issues that lurk in the cases: is Baker v. Nelson still controlling and thus requires dismissal of marriage pleas by gays and lesbians, and what is the constitutional standard of review on gay rights issues. But both almost certainly will be argued in the briefing and at oral argument....It is obvious now why the Court took as much time as it did: the selection process must have been rather challenging, and the compositon of the final orders equally so. The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues.

Lambda Legal Director Jon Davidson's take:

"Perry granted on merits and standing of Prop 8 proponents. So no answers (or CA marriages) likely until June, and Court may ultimately duck merits of Prop 8 and allow order striking it down to stand by finding that Prop 8 proponents had no right to seek Supreme Court (and maybe not 9th Circuit) review."

NCLR Executive Director Kate Kendell, Esq. writes:

“Both the federal DOMA and California’s Proposition 8 serve only one purpose: to harm and stigmatize same-sex couples and their children. Without a doubt, Ted Olson, David Boies, and our colleagues at the ACLU will make the strongest possible case for equality before the Court. We are confident the Supreme Court will strike down DOMA once and for all next year, and, after four long years, will finally erase the stain of Proposition 8 and restore marriage equality to California couples.The day is now clearly in sight when the federal government, the State of California, and every state will recognize that same-sex couples and their children are entitled to the same respect and recognition as every other family.”

Writes the ACLU:

Windsor is represented by attorneys from Paul, Weiss, Rifkind, Wharton & Garrison LLP; the American Civil Liberties Union; the New York Civil Liberties Union and the Stanford Law School Supreme Court Litigation Clinic. While New York and eight other states now give same-sex couples the freedom to marry, DOMA requires otherwise legally married same-sex couples like Edie and Thea to be treated by the federal government as if they had never married,” said New York Civil Liberties Union executive director, Donna Lieberman. “It is time for the Supreme Court to strike down this unconstitutional statute once and for all.”

Protect Marriage writes:

The day we've been waiting for is finally here . . . Today we scored a MAJOR victory for traditional marriage in the Supreme Court of the United States!! Just moments ago, the Supreme Court GRANTED our petition seeking the Court’s review of the Ninth Circuit’s erroneous decision striking down California's Proposition 8. Thankfully, now we finally have a fighting chance at a fair hearing to defend the votes of over 7 million Californians who approved Prop 8 to restore traditional marriage. This is a great relief, after a long and difficult journey through the lower courts where the deck was stacked against us from the start.

GLAD writes:

DOMA creates a gay-only exception to federal recognition of state-licensed marriages, and we believe that the federal government should stop discriminating against same-sex couples legally married by their states. We know from working with legally married same-sex couples since 2004 in Massachusetts that DOMA undermines their security in every aspect of life and death. GLAD has been leading the fight for marriage equality for two decades, including the historic marriage equality breakthroughs in Massachusetts and Connecticut. That the issue will soon be heard by the Supreme Court is a vindication of our work to achieve equal protection under the law for same-sex couples. This day has been long in the making, and we are committed to the success of this case.

Freedom to Marry's reaction:

By agreeing to hear a case against the so-called Defense of Marriage Act, the Court can now move swiftly to affirm what 10 federal rulings have already said: DOMA’s ‘gay exception’ to how the federal government treats married couples violates the Constitution and must fall. When it comes to the whole federal safety net that accompanies marriage – access to Social Security survivorship, health coverage, family leave, fair tax treatment, family immigration, and over 1000 other protections and responsibilities -- couples who are legally married in the states should be treated by the federal government as what they are: married." “Additionally, gay and lesbian couples in California – and indeed, all over the country – now look to the Supreme Court to affirm that the Constitution does not permit states to strip something as important as the freedom to marry away from one group of Americans.

NOM reacts:

"We believe that it is significant that the Supreme Court has taken the Prop 8 case," said John Eastman, NOM's chairman and former Dean (and current professor) at Chapman University School of Law. "We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect."

"Had the Supreme Court agreed with the lower courts' decisions invalidating Proposition 8, it could simply have declined to grant certiorari in the case," Eastman said. "It's a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco at both the trial court and appellate levels. It's worth noting that Judge Reinhart is the most overruled judge in America. I think this case will add to his record."

GLAAD reacts:

“Today is a historic moment for our nation, equality and countless gay and lesbian couples, who simply want an opportunity to marry the person they love,” said GLAAD President Herndon Graddick. “Our momentum is great and our resolve is strong, with the Supreme Court now poised to affirm our Constitution’s core principals of liberty, dignity and equality for all.”

LOG CABIN REPUBLICANS:

"Today's decision by the Supreme Court to review Proposition 8 and hear a challenge to DOMA is another step forward for California couples to marry, with the hope that the federal government will also recognize these marriages," said Executive Director R. Clarke Cooper. "In recent years, many conservative judges have repudiated DOMA, and five of the eight justices who have overturned this anti-federalist and discriminatory statute were appointed by Republicans. Add conservative champions like for former Solicitor General, Ted Olson, and it becomes clear that true conservatism demands respect for the freedom to marry."

Flavia P.
Dec 7th, 2012, 09:07 PM
Here is the SCOTUS decision in text:

http://www.supremecourt.gov/orders/courtorders/120712zr_3f14.pdf

12-144 HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.

The petition for a writ of certiorari is granted. In
addition to the question presented by the petition, the parties
are directed to brief and argue the following question: Whether
petitioners have standing under Article III, §2 of the
Constitution in this case.

12-307 UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted. In
addition to the question presented by the petition, the
parties are directed to brief and argue the following
questions: Whether the Executive Branch’s agreement with the
court below that DOMA is unconstitutional deprives this Court of
jurisdiction to decide this case; and whether the Bipartisan
Legal Advisory Group of the United States House of
Representatives has Article III standing in this case.

Here is expert legal analysis regarding the decision:

SUPREME COURT WILL HEAR DOMA AND PROP 8 CHALLENGES: AN ANALYSIS
http://www.towleroad.com/2012/12/doma-and-prop-8-what-happens-next.html

The Supreme Court issued orders granting hearings in the Prop 8 case, Hollingsworth v. Perry, and one Defense of Marriage Act (DOMA) case, Windsor v. United States. The stage is set for a monumental 2013 at One First Street, with decades-long ramifications for the gay rights movement.

Court watching is humbling, especially when you're (half) wrong. Like almost every commentator, I expected a grant in at least one DOMA case. I thought Windsor was the likeliest choice if the Court took only one: it offers an avenue for addressing scrutiny levels and would not require Justice Kagan to recuse herself. As Towleroad readers know, though, I did not expect the Court to grant the petition in the Prop 8 case, especially because of the narrowness of the Ninth Circuit's decision.

But, being at the Supreme Court has its advantages. It means you can craft the question presented -- the specific legal question the parties have to answer at oral argument and the Court wants to answer in its decision -- pretty much any way you want. The way the Court specified the questions in both cases speaks volumes to the great potential to make remarkable strides toward equal honor and dignity under the law.

One thing is clear: The reason the Court took so long to grant these hearings is the complexity of the orders and myriad options open to the Court. Evidently, there was also a lot of strategy involved. That is, even though the Court gave itself great space to decide every substantive issues, each order includes a jurisdictional question that would allow the Court to avoid the substance if it really wanted to.

Hollingsworth v. Perry, challenging California's Proposition 8

The American Foundation for Equal Rights (AFER) is leading the charge against California's ban on same-sex marriage and achieved extraordinary success. That success reached its zenith when Judge Vaughn Walker issued a sweeping decision declaring that by discriminating against gay couples, Prop 8 violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The Ninth Circuit affirmed the decision, but took a step back from that broad holding, finding only that Prop 8 was unconstitutional because it took away already existing rights.

The Supreme Court is interested in the broader holding. Its order takes as the question presented whether, under the Fourteenth Amendment, California can define marriage as between one man and one woman. It did not limit its consideration of the case to the Ninth Circuit's taking away theory.

Plus, the Court will return to the "standing" question. If you recall, the Ninth Circuit Prop 8 decision took extra time because that court had to determine if the proponents of Prop 8, ProtectMarriage, could stand in the shoes of the state to defend the law when the state government refused to. The Court would like to determine that for themselves, and because jurisdictional issues are determined de novo -- "from the beginning" -- the Supreme Court is more than free to come to a different conclusion than the Ninth Circuit.

Windsor v. United States, challenging the Defense of Marriage Act

The ACLU brought this challenge on behalf of Edie Windsor, who had to pay an exorbitant tax bill upon the death of her partner where every heterosexual widow would not. If you recall, this is the case where a relatively conservative panel of the Second Circuit held that heightened scrutiny is the appropriate level of scrutiny for DOMA and any state action that discriminates on the basis of sexual orientation.

This is the only DOMA case for which the Court granted a hearing. It said nothing about Gill, which was the First Circuit case decided on "rational basis with bite" and included a Tenth Amendment question. But, Gill was also the case in which Justice Kagan would have had to recuse herself, so that was the least likely to be granted.

The Court chose the Government's question presented -- Whether DOMA Section 3 (one-man, one-woman definition of marriage for federal purposes) violates the Fifth Amendment -- but also included two other questions: Does the fact that the Government agreed with the Second Circuit's decision deprive the Court of jurisdiction to hear the case? And, do House Republicans, who took up defense of DOMA when President Obama refused, have standing?

We all understand the main question. The second question is a bit arcane. Normally, a winner cannot appeal a lower court ruling. The Obama Administration argued at the Second Circuit that DOMA is unconstitutional, so a decision declaring DOMA unconstitutional agrees with the Government's position. That decision certainly made the ACLU and Edie Windsor winners, but whether it made the Government a winner -- and thus, incapable of appealing it -- is less clear. The Government argues that the Second Circuit's decision was a decision against a duly enacted Act of Congress that the executive was still obligated to enforce, notably against its will. Therefore, the decision was, theoretically, still against the Government.

By these questions, the Court gave itself space to answer both the underlying merits of the DOMA challenge and the scrutiny question. After all, it may not be possible to decide if DOMA Section 3 is unconstitutional without first deciding how to answer the question, i.e., heightened scrutiny versus rational basis.

Analysis

Without being a fly on the wall in conference, the text of the orders and the decision to grant in certain cases but not others speak volumes about what happened, why it took so long, and what this could all mean down the road.

Each order includes an "opt-out." I mean that metaphorically, of course. The orders on both Hollingsworth and Windsor include jurisdictional questions that could decide the entire matter outright without letting the Court get to the substance of either case. So, if some of the justices feel their position won't get 5 votes, they may be more inclined to live to fight another day by making non-precedential decisions on jurisdiction now. This speaks to one of the main reasons why it might have taken so long to come to these decisions: strategy. The ideological wings of the divided Court may have been looking for ways to have a fall back position if they could not get a swing vote on their side, and sometimes, jurisdictional questions that prevent wide application of a decision beyond the one at hand offer that kind of safe default position.

What about scrutiny? The Windsor order did not specifically mention the appropriate level of scrutiny, but by taking the Windsor case, the Court may have recognized that the hazy scrutiny standard it has left in place since Lawrence v. Texas is no longer tenable. Windsor was the only DOMA case that forced the Government to stake out a scrutiny position; the Second Circuit was unique in that it had no historical precedent on the appropriate level of scrutiny for anti-gay laws. And, the Windsor decision put the level of scrutiny front and center when the court held that heightened scrutiny was necessary. The Court could always continue to muddle through or decide that DOMA is unconstitutional under any level of scrutiny and leave the law an unclear patchwork of scrutinies that varies from circuit to circuit, but the grant and its wording gives the Court the space to make a scrutiny decision.

Baker v. Nelson is nowhere to be found. Baker is a 1971 case where the Supreme Court denied a hearing on a gay marriage case from Minnesota "for want of a federal question." That is, back then, the Court said that Minnesota's decision to deny licenses to gay couples was not a matter for the federal constitution. To this day, almost every brief supporting a marriage ban refers to Baker, arguing that it forecloses any Supreme Court review. That argument ignores 40 years of gay rights law, in general, and Romer v. Evans and Lawrence v. Texas, in particular, which changed the relationship between gay persons and federal law. The Court may indeed address, and likely explain away, Baker, but the wording of its grant suggests that it is not at the forefront of the Court's consideration.

Is this a good or bad result? Granting Windsor gives the Court a unique opportunity to come together to declare DOMA unconstitutional, though it is not clear that the Court is ready to mandate heightened scrutiny. But, there is no doubt that the grant in Hollingsworth took me by surprise. Its framing the case in the broadest way possible offers a chance for a monumental victory or a great loss because the breadth of the case could have ramifications outside California. This is what Ted Olson, David Boies, and the AFER team wanted all along and the country is no much closer to accepting the freedom to marry in great part because of AFER's skillful engagement with the American public on marriage freedom.

What happens next? The Court has set the stage for a March argument and a decision on the last day of the Court's current term in late June 2013. For now, the Ninth Circuit's stay that prevents the implementation of Judge Walker's original order remains in place. Gays cannot marry in California just yet. But, they are oh so much closer to a resolution.

In the coming days, I will parse out more details and discuss some of these and other implications of this development. Please ask questions in the comments section and I will do my best to respond as soon as possible.

Congratulations to the AFER team and its plaintiffs, Kris Perry and Sandy Stier, Jeff Zarrillo and Paul Katami, and to the ACLU LGBT Project team, James Esseks and his attorneys, and Edie Windsor. The sacrifices they are making for all of us should never go unnoticed.

Flavia P.
Dec 7th, 2012, 09:15 PM
People should be really excited and scared about this. I mean that literally. This is going to change the landscape of gay rights globally. If we win, with France and the UK as well looking likely to enact marriage equality soon, expect the dominoes to start falling. That will be the stamp on the death of homophobia in the world. The USA is the most influential country in the world, still. With those three huge countries giving the stamp of approval, and in the US through SCOTUS ruling with a CONSERVATIVE bench, of same-sex marriage, they're giving the stamp of approval of our sexual orientation. In turn, our homosexuality. It will destroy homophobes and their power will become completely obsolete.

But if we lose, it could take decades for things to be reversed. Especially since it appears SCOTUS is going for a broad ruling. That means this is for all the marbles. Either we'll have full marriage equality in all 50 states, we'll have marriage equality in California and essentially get the passway to work for equality in the rest of the states, or we're knocked down several pegs.

What do you all think? And can someone say something to calm me down :lol:

moby
Dec 7th, 2012, 09:44 PM
I mean that's essentially what it is. Kind of an all-in situation.

dybbuk
Dec 7th, 2012, 09:56 PM
I find this terrifying and wish this could have been held off until Obama gets to appoint another Supreme Court justice. The only thing that comforts me is Kennedy had agreed with striking down other homophobic laws before, so I can't see him agreeing to a decision that completely sets back the movement. Kennedy reminds me of Federer with his obsession with his legacy, so he won't be willing to stand up against the tide of public opinion which is moving towards equality. At worst I could see him agreeing to a very middle of the road decision that gives a bit to each side.

Melange
Dec 7th, 2012, 10:21 PM
Dont know anything about this but it was shocking that in the Obamacare case sanity only prevailed because one guy voted with common sense instead of blindly following party lines. So I dont expect anything much better in this case.

Tennisation
Dec 7th, 2012, 11:21 PM
It's showtime on the US Kennedy Court

DeucesAreWild
Dec 8th, 2012, 01:56 AM
Dont know anything about this but it was shocking that in the Obamacare case sanity only prevailed because one guy voted with common sense instead of blindly following party lines. So I dont expect anything much better in this case.

That was not common sense. That was slide of hand. The public was focused on the commerce clause. Justice Kennedy upheld it as a tax levy. The Administration said it was not a tax to the public. They then had their lawyers argue it was a tax in court. Justice Kennedy stuck strictly to the law. He did not side with the four dissenting Justices whom took into account that the public was lied to.

On this issue of gays marrying, I happen to think it is pretty straightforward. Equal Protection. How can their be one set of laws for homosexuals and another for heterosexuals? Consenting adults should be able to marry if they so choose. A gay couple marrying does not impact my future marriage to my girlfriend. Even if I do not agree with gays marrying, it is none of my business. I live my life. They should live theirs.

Expat
Dec 8th, 2012, 02:54 AM
I mean that's essentially what it is. Kind of an all-in situation.

Why? Baker v Nelson is still the controlling opinion. Even if they deny gay marriage (I find it hard to believe that even the liberals on the court would go to overturn Baker v Nelson all over the country. They have been burned badly by all the legislating that happened in the courts in the warren and burger courts) it would still be the same scenario. At best and at worst they will overturn the CA specific law only it only matters how they overturn (mootness, standing , 14th amendment or romer vs evans) . There aren't enough votes for any other outcome.

Morning Morgan
Dec 8th, 2012, 04:29 AM
What I find more scary is it could be a 6-3 decision either way. The moral victory behind a 6-3 decision is HUGE compared to a 5-4 ruling.

Tennisation
Dec 8th, 2012, 04:47 AM
What I find more scary is it could be a 6-3 decision either way. The moral victory behind a 6-3 decision is HUGE compared to a 5-4 ruling.Doubt it, you have 4 liberal and 4 conservative judges that will split the votes. It all comes down to Anthony Kennedy.

Expat
Dec 8th, 2012, 04:54 AM
Doubt it, you have 4 liberal and 4 conservative judges that will split the votes. It all comes down to Anthony Kennedy.
Nope. If it is affirmed you may even see 6-3 with kennedy and roberts. on the other hand it may be thrown out on procedural grounds by the SC to re-argue in the lower courts by a margin bigger than 5-4. i dont see them overturning the decision but they may ask to re-argue if kennedy is unwilling to overrule the will of the majority.

cowsonice
Dec 8th, 2012, 05:31 AM
I find this terrifying and wish this could have been held off until Obama gets to appoint another Supreme Court justice. The only thing that comforts me is Kennedy had agreed with striking down other homophobic laws before, so I can't see him agreeing to a decision that completely sets back the movement. Kennedy reminds me of Federer with his obsession with his legacy, so he won't be willing to stand up against the tide of public opinion which is moving towards equality. At worst I could see him agreeing to a very middle of the road decision that gives a bit to each side.

Who of the conservative side would retire within 4 years? I think Ginsberg is the closest to retiring, and she would've held onto her seat for dear life if Romney were elected. Vice versa with somebody like Scalia.

People should be really excited and scared about this. I mean that literally. This is going to change the landscape of gay rights globally. If we win, with France and the UK as well looking likely to enact marriage equality soon, expect the dominoes to start falling. That will be the stamp on the death of homophobia in the world. The USA is the most influential country in the world, still.


Doubt it. American exceptionalism has made us seem rather backwards compared to the progressive Europe. It took us so long to get some sort of universal health care and that was through a SCOTUS ruling, too. It's not like Europe has vastly improved their health care system because they were inspired by US. So....I just overall doubt that gay rights in the world, Europe mainly, depends on what the US thinks.

Melange
Dec 8th, 2012, 07:37 AM
That was not common sense. That was slide of hand. The public was focused on the commerce clause. Justice Kennedy upheld it as a tax levy. The Administration said it was not a tax to the public. They then had their lawyers argue it was a tax in court. Justice Kennedy stuck strictly to the law. He did not side with the four dissenting Justices whom took into account that the public was lied to.



I thought it came down to whether Congress has the right to govern without constant interference from the SC who were not elected.