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Friday, December 7, 2012

Supreme Court Will Hear Gay Marriage

Posted by on Fri, Dec 7, 2012 at 12:40 PM

New York Times:

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

In other words, these are the challenges to Prop 8 and DOMA. The ACLU breaks down what's at stake in the two cases over here.

 

Comments (36) RSS

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36
@12 You wrote: "It also seems to me that if they overturn Prop 8 on equal protection grounds, that would render most of DOMA moot. But I am certainly no legal scholar, so I may be missing something there."

I must be missing something too. This makes me not very hopeful about what they will say about prop 8.
Posted by limbomonkey on December 9, 2012 at 6:36 AM · Report this
35
@33, many parts of the country weren't 'ready' for Brown v Board of Education, yet there it went.
Posted by clashfan on December 8, 2012 at 3:19 PM · Report this
34
@33 I think we're more ready than we were for Loving.
http://themoderatevoice.com/25108/gay-ma…

That shows that interracial marriage was at 70% opposed the year AFTER Loving, and didn't get to more supporters than opposed until around 1990. Gay marriage is WAY ahead of that, but the same generational shift will happen.
Posted by Hanoumatoi on December 8, 2012 at 10:47 AM · Report this
33
@31 I think a pretty good legal argument can be made that same-sex marriage is a constitutional right. Politically and culturally I don't think the country is ready for that.
Posted by Ken Mehlman on December 7, 2012 at 7:24 PM · Report this
32
I'm also not optimistic. This is a Court with an axe to grind versus civil rights and federal protections, and it's not based on any reasoned argument, only immutable ideological conviction. Even worse, Scalia and Thomas (and Kennedy, really) are bratty, spoiled children. Don't believe me? Look at how the Affordable Care Act thing played out, with someone very, very, very close to the Court (ahem) anonymously sniping about the other judges to the press.

And Kennedy, for his part, seems really sore that he didn't get to play emperor with his vote and opinion on the Affordable Care Act. He is not a swing, moderate voter and he hasn't been since Bush v. Gore. (WiS is right and Phoebe is wrong.) He has gone over to the looney edge with Scalia and Thomas.

They don't seem to be getting along, is what I'm saying. The judges have taken sides and it's gotten personal. I actually have more hope for Roberts and (incredibly) Alito than I do for Kennedy, Scalia, and Thomas. And they all seem healthy enough right now. I don't think Obama will be appointing their replacements. But we sure can dream.
Posted by floater on December 7, 2012 at 7:13 PM · Report this
thelyamhound 31
@29 - . . . the net effect of which was a judicial finding of marriage as a fundamental right.

What I'm getting at is that, one way or another, if DOMA is struck down, the recognition (some may say invention, which I don't object to because I believe rather fervently that rights do not exist in nature; ask a lion if she recognizes the gazelle's right to life) of a more universal right to marriage on the part of same-sex couples will follow in a few steps.
Posted by thelyamhound http://thebayinghound.blogspot.com on December 7, 2012 at 6:28 PM · Report this
Reverse Polarity 30
Many married military couples live in housing on base. That housing would be considered federal property (I think), and therefore exempt from state restrictions. If DOMA gets tossed, gay-married military families living on base should theoretically stay married, even if that base is in Texas. Likewise, if DOMA gets passed, gays in the military could probably get married on any military base, regardless of the prevailing state laws.

When I was in the military in the early 1980s, we could drink on base at age 18, regardless of the drinking age off base in whatever state we were in (the drinking age varied from state to state back then). We only had to comply with the state drinking age if we left the base. As a result, the enlisted club on base was packed with 18-20 year olds on weekends. Good times! :-)
Posted by Reverse Polarity on December 7, 2012 at 5:45 PM · Report this
29
@28 I wonder how military families were treated when interracial marriage was legal in some states but not in others? Before Loving vs Virginia states didn't have the right to refuse to recognize interracial marriages, but they could make it a crime for married interracial couples to live within their borders. Hence, the marriage certificate issued to Richard and Mildred Loving by the District of Columbia, was presented as evidence of their violation of Virginia's "Racial Integrity Act."
Posted by Ken Mehlman on December 7, 2012 at 5:26 PM · Report this
thelyamhound 28
@27 - But what if we're talking about, say, military families, who are moved from state to state against their own will? Would military families be granted special exemptions?

My guess is that you may be right regarding the rulings (basically, that the SCOTUS will uphold Windsor and strike down Hollingsworth/Perry), but that the distinction will become moot--that there will be so many loopholes by which marital recognition can be achieved that it will actually be less expensive, and less hassle, for states that don't currently recognize gay marriage to do so.
Posted by thelyamhound http://thebayinghound.blogspot.com on December 7, 2012 at 5:01 PM · Report this
27
@25 Yeah, or what happens if a same-sex couple gets married in New York and then moves to Texas? Would the federal government still view them as married for tax purposes? To build a working compromise the court might rule that states aren't required to recognize the marriages of gay couples and that the federal government only recognizes the marriages of same sex couples who reside in states where gay marriage is legal.
Posted by Ken Mehlman on December 7, 2012 at 4:40 PM · Report this
Phoebe in Wallingford 26
@1: It's not the same. There are two more liberal women on the court, a more liberal leaning Justice Kennedy, and the Chief Justice whom upheld Obama care appointed by George W. Bush.
Posted by Phoebe in Wallingford on December 7, 2012 at 4:08 PM · Report this
thelyamhound 25
@24 - I think that's a reasonable prediction, but here's what I wonder: How long would Prop 8 survive if, in the absence of DOMA, some couple successfully sued for recognition of their marriage by way of Full Faith & Credit?
Posted by thelyamhound http://thebayinghound.blogspot.com on December 7, 2012 at 4:05 PM · Report this
24
@24 I'm guessing the court will declare DOMA unconstitutional but let the Prop 8 referendum result stand. You can defend Prop 8 on states rights grounds, DOMA not so much.
Posted by Ken Mehlman on December 7, 2012 at 3:43 PM · Report this
Pope Peabrain 23
Majority of papists. But Roberts and Kennedy show some semblance of reason.
Posted by Pope Peabrain on December 7, 2012 at 3:39 PM · Report this
Some Old Nobodaddy Logged In 22
@18 Tell me about it. I've been hoping that shit-for-brains Thomas drops dead of a heart attack for decades.

But then, silly me, it won't happen. He doesn't have a heart.
Posted by Some Old Nobodaddy Logged In on December 7, 2012 at 2:58 PM · Report this
Bauhaus I 21
...and you defend your marriage; I'll defend mine.
Posted by Bauhaus I on December 7, 2012 at 2:40 PM · Report this
Bauhaus I 20
Thrilled! And it's about fucking time. Wish we were dealing with some different people than some of the nine who currently reside on the bench, but hopefully it'll put an end to initiatives that try to deny civil rights to gay and lesbians because without a Supreme Court ruling every gain will be challenged by those who want to keep things just the way they are.
Posted by Bauhaus I on December 7, 2012 at 2:39 PM · Report this
19
@11, if the court had decided not to hear it, the lower court cases would have stood, and we would have won. Now the issue is up in the air.
Posted by GermanSausage on December 7, 2012 at 2:33 PM · Report this
18
@8 "If Kennedy, Ginsberg and Breyer all retired over the next couple of years, and we got a bunch of young folk on the bench...well, it would be like the 1960's all over again."

Why stop with Kennedy, Ginsberg and Breyer? Why can't Thomas and Scalia retire, too?

A gay can dream.
Posted by Clayton on December 7, 2012 at 1:56 PM · Report this
17
@11, I'm nervous we will lose because of the conservative composition of the Court. If we lose on Equal Protection grounds, then we're worse off than if the Court didn't take the case--gays and lesbians will not be a suspect or quasi-suspect class and laws affecting gays and lesbians will be presumptively constitutional and there will be no fundamental right to same-sex marriage.

It likely all comes down to Kennedy, which is why the District Court's opinion, some say, was written as a "love letter" to Kennedy.
Posted by California on December 7, 2012 at 1:47 PM · Report this
Original Andrew 16
After this past November, you can bet that Scalia, Alito, Roberts, and Thomas are gonna be feeling bored and vengeful, and you can also take it to the bank Kennedy definitely is not a sure ally.

They're free to rule on the merits of lower court decisions, or anything at all. These twisted psychopaths will set the clock back 30 years by the time they're through.

Fuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuck!!!
Posted by Original Andrew on December 7, 2012 at 1:46 PM · Report this
15
We're nervous about THIS court hearing the cases because Scalia & Co. have made it clear they have no actual "judicial principles" beyond "we want to do what we want to do." Supposed principles like states' rights, the 10th Amendment, or "original intent" all get thrown out the window if Scalia wants to, say, install a president, allow torture, or decree that corporations are people. It's all a game of Calvinball to them, where the rules get made up as you go along.
Posted by Pope Buck I on December 7, 2012 at 1:45 PM · Report this
14
@6 The other side doesn't have to convince the court that gay marriage is bad, only that marriage equality is not a fundamental civil right enshrined in the US constitution. A conservative would say that protecting sodamites wasn't what Thomas Jefferson and his homies had in mind when they wrote the bill of rights. Hence the high court has no business striking down anti-gay marriage laws.
Posted by Ken Mehlman on December 7, 2012 at 1:38 PM · Report this
Posted by rob! http://www.youtube.com/watch?v=QZBdUceCL5U on December 7, 2012 at 1:33 PM · Report this
bleedingheartlibertarian 12
@6--I suppose one could argue on federalist/10th Amendment grounds that states, not the federal government, retain the right to determine their own marriage laws. In that case, it would seem to me that the Court could uphold Prop 8 while overturning the portions of DOMA that allow the federal government to not recognize same-sex marriages in the states that have them.

It also seems to me that if they overturn Prop 8 on equal protection grounds, that would render most of DOMA moot. But I am certainly no legal scholar, so I may be missing something there.
Posted by bleedingheartlibertarian on December 7, 2012 at 1:33 PM · Report this
Pick1 11
Can someone explain to me why some pro-equality groups are little nervous by them taking the prop 8 case?

Is it just because they wanted the state ruling to stand and let the DOMA challenges move forward?

Or are they actually nervous that this means we might lose?
Posted by Pick1 on December 7, 2012 at 1:32 PM · Report this
10
@6, here are the briefs from the Ninth Circuit. The bad guys are the "Supporters" at this link:

http://prop8.berkeleylawblogs.org/2010/1…

There are two issues before the Supreme Court: whether the Equal Protection clause prohibits California from defining marriage as between a man and woman (from the petition), and whether the bad guys have standing (from the Court's order). Many of the arguments in the linked briefs will be made again--there's no fundamental right to marry someone of the same sex, gays and lesbians are not a suspect or quasi-suspect class deserving of heightened scrutiny, etc.
Posted by California on December 7, 2012 at 1:25 PM · Report this
Sargon Bighorn 9
Ms Forka, the argument will be "THINK of the CHILDREN!"
Posted by Sargon Bighorn on December 7, 2012 at 1:19 PM · Report this
michaelp 8
@5 - It would be Roberts. He's a conservative, but he knows that this is a history making decision, and it's going to happen. For his own personal legacy, I can see him being the 6th.

But yes. If Kennedy, Ginsberg and Breyer all retired over the next couple of years, and we got a bunch of young folk on the bench...well, it would be like the 1960's all over again.
Posted by michaelp on December 7, 2012 at 1:16 PM · Report this
7
Women went to the Supremes for suffrage in 1875. Took another 50 years for the amendment!
Posted by DannyG on December 7, 2012 at 1:13 PM · Report this
Urgutha Forka 6
So, does anyone know what legal arguments the opposition will have (i.e., the people against gay marriage)?

I haven't heard anything that isn't religious or emotional, and the Supreme Court isn't going to listen to emotional or religious arguments, so I'm truly interested if anyone knows what actual legal, constitutional-based arguments the opposition will make.
Posted by Urgutha Forka on December 7, 2012 at 1:12 PM · Report this
5
@2, who would be the 6th vote in your 6-3 scenario? I just don't see Scalia, Alito, Roberts, or Thomas siding with the gays.

But man, if Kennedy retired during Obama's second term, that would be awesome.
Posted by JenV on December 7, 2012 at 1:11 PM · Report this
4
It's on now.
Posted by Clayton on December 7, 2012 at 1:08 PM · Report this
3
OMG!

I'm popping the pop corn.

(Okay, in 6 months I'm popping the pop corn.)
Posted by judybrowni on December 7, 2012 at 1:06 PM · Report this
michaelp 2
I am thrilled that they took on the Windsor case. Being the first Appellate decision to state that laws regarding gays are subject to intermediate scrutiny, and being the strongest of the DOMA opinions (also written by a conservative judge), I think the Court choosing to review this specific DOMA challenge bodes well for the gays.

Now, I'm not saying I'm one who would put money on a case, but I'm guessing this goes 5-4 or 6-3 for the gays, and Kennedy gets the opinion. And then retires at the end of this term.
Posted by michaelp on December 7, 2012 at 12:48 PM · Report this
Will in Seattle 1
It's great to have the input of the Deciders of Bush v Gore weigh in on this.

....
Posted by Will in Seattle http://www.facebook.com/WillSeattle on December 7, 2012 at 12:45 PM · Report this

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