Huffington Post – All Eyes Turn to the U.S. Supreme Court

All Eyes Turn to the U.S. Supreme Court
Posted: 09/29/2014 4:37 pm EDT Updated: 11/29/2014 5:59 am EST
Today the United States Supreme Court is scheduled to discuss seven petitions from five different states urging it to decide on the constitutionality of state laws excluding same-sex couples from marriage on a nationwide basis. The Supreme Court has complete discretion over whether or not to take a case. And no one knows if it will decide whether to take any of the cases at this time or defer its decision until a future conference this fall. Indeed, the Supreme Court will have a lot to cover at its first conference, with 53 petitions in other cases on its schedule as well. However, we could learn next week — possibly as early as Tuesday — whether it will take up the issue of the freedom to marry nationwide this term, with a substantive, definitive decision likely in June 2015.

The momentum toward marriage equality in the courts has accelerated at breakneck speed in the just over a year since the Supreme Court’s landmark decision in United States v. Windsor invalidated Section 3 of the misnamed “Defense of Marriage Act” (DOMA), a statute that prohibited the federal government from recognizing the marriages of same-sex couples validly performed in states with marriage equality. Since Windsor, 27 federal courts have found state bans to be unconstitutional, with only one lower federal court upholding such a ban. Significantly, all four federal appellate decisions, from which the seven petitions to the Supreme Court come, favor equality. Judges ruling for the freedom to marry include appointees of Presidents Carter, Reagan, G. H. W. Bush, Clinton, G. W. Bush, and Obama. Federal District Judge Richard Young of Indiana described in his ruling the winning streak as a phenomenon “never” before “witnessed … throughout the federal court system….” Similarly, 13 state courts have ruled in favor of marriage equality, with only one opposed.

The petitions before the Supreme Court arise out of federal appeals court decisions striking down marriage bans in five states: Indiana (Seventh Circuit), Oklahoma (10th Circuit), Utah (10th Circuit), Virginia (Fourth Circuit), and Wisconsin (Seventh Circuit). All the cases present the issue of whether or not a state may prohibit same-sex couples from marrying. However, the cases differ as well, and the justices likely will be considering these differences in determining which case or cases to take. Attorneys for same-sex couples in each of the cases have argued that the particular circumstances of their individual cases make them desirable for review.

One difference in the cases is that the Oklahoma case raises only the issue of whether a state may ban same-sex couples from marrying under its state laws, while the other states’ cases also involve challenges to whether a state must recognize the marriages of same-sex couples who were validly married in other states. If the Supreme Court were to strike down state marriage bans nationwide, it would not need to decide if and when one state must recognize marriages performed in other states. Alternatively, if the Supreme Court declined to decide the issue nationwide or upheld state marriage bans, the issue of recognition of out-of-state marriages could be very important.

The various states’ laws at issue in the petitions also differ. For instance, Wisconsin permits same-sex couples to enter into domestic partnerships, affording them limited legal rights, while the other states with petitions before the Supreme Court do not. The wording of the marriage bans and the history of the political campaigns to pass them vary from state to state. Procedural histories of the cases differ as well. For instance, in Virginia the attorney general, representing the state defendant, agrees that the ban is unconstitutional, and local county clerks are defending the state ban. In the other states, the state has uniformly defended the bans. The attorneys in each case differ too and include lawyers from groups that have been advocating for LGBT equality for decades, such as the National Center for Lesbian Rights, Lambda Legal, Gay and Lesbian Advocates and Defenders, and the ALCU.

The legal bases for striking down the bans also differ between the various federal appellate decisions before the Supreme Court. The appellate courts in the Oklahoma, Utah, and Virginia cases invalidated those state bans on the grounds that that they violated same-sex couples’ “fundamental right to marry,” while the appellate court in the Indiana and Wisconsin cases struck down those states’ bans on the grounds that laws that discriminate on the basis of sexual orientation are entitled to elevated scrutiny under the U.S. Constitution. Windsor held that DOMA violated the Constitution’s guarantees of both liberty and equality. Both issues, and very possibly the question of whether the bans constitute unlawful sex discrimination, will doubtlessly be argued before the Supreme Court regardless of which case or cases it takes. However, the Supreme Court justices may consider the logic or rationale of one or more of the appellate court decisions particularly useful for review.

Two additional federal appellate circuits will likely weigh in this fall as well. The Sixth Circuit heard cases arising out of marriage bans in Kentucky, Michigan, Ohio, and Tennessee in early August, and the Ninth Circuit heard cases from Idaho and Nevada in early September. From relevant circuit court precedent and the questions and comments the judges made at oral argument, most observers believe the Ninth Circuit will very likely rule in favor of equality, but the outcome of the Sixth Circuit cases is much harder to predict.

In remarks last week at the University of Minnesota, Supreme Court Justice Ruth Bader Ginsburg fueled speculation that the court might wait to determine whether or not to take a case until the Sixth Circuit rules. She stated that there would be “no need for [the Supreme Court] to rush” if the Sixth Circuit ruled in favor of the freedom to marry as all the other circuits that have addressed the issue since Windsor have done. However, she said that a Sixth Circuit ruling against equality would create “some urgency” for the Supreme Court to step in. It often takes cases to resolve disputes among the circuits.

Further, the Supreme Court will take a case if four of the nine justices vote to hear it. The Supreme Court has stayed decisions in the Fourth, Seventh, and 10th Circuits from taking effect until final resolution of the cases. If the Sixth and Ninth Circuits were also to rule in favor of equality, most observers believe it unlikely that the four justices who dissented in Windsor would simply let all the petitions be dismissed by voting to deny review — effectively permitting marriage equality in 20 additional states located in those circuits. But if the Supreme Court held the petitions until a circuit court ruled against the freedom to marry, many thousands of LGBT Americans could have to wait even longer for a decision. Regardless of how the Sixth Circuit rules, the issue of marriage equality is in fact “urgent” for LGBT Americans, many of whom have been together for decades without legal recognition and protection.

Many of us would love to be a proverbial “fly on the wall” in the justices’ conference chamber today, but we will of course have to wait until the Supreme Court makes public its decisions from the conference either next week or on October 6, the official beginning of the new term. Federal District Judge John E. Jones III, a George W. Bush appointee, wrote in his opinion invalidating Pennsylvania’s marriage ban, “We are better people than what these laws represent, and it is time to discard them into the ash heap of history.” That time cannot come too soon.

John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. They are leaders in the nationwide grassroots organization Marriage Equality USA.

Huffington Post Gay Voices – Gay Marriage Questions, Cases Weighed By Supreme Court, Decision Delayed

Gay Marriage Questions, Cases Weighed By Supreme Court, Decision Delayed
By MARK SHERMAN 11/30/12 03:46 PM ET EST

 

FOLLOW: Supreme Court, Gay Marriage, Gay Marriage, Video, Gay Marriage Case, Gay Marriage Right, Gay Marriage Supreme Court, Scotus, Supreme Court Gay Marriage, Supreme Court Same-Sex Marriage, Gay Voices News
WASHINGTON — The running fight over gay marriage is shifting from the ballot box to the Supreme Court.

Three weeks after voters backed same-sex marriage in three states and defeated a ban in a fourth, the justices met Friday to discuss whether they should deal sooner rather than later with the claim that the Constitution gives people the right to marry regardless of sexual orientation.

The court also could duck the ultimate question for now and instead focus on a narrower but still important issue: whether Congress can prevent legally married gay Americans from receiving federal benefits otherwise available to married couples.

There was no announcement about the court’s plans on Friday. The next opportunity for word on gay marriage cases is Monday, although the justices also could put off a decision until their next private meeting in a week’s time. That will be their last meeting until January.

Any cases would be argued in March or April, with a decision expected by the end of June.

Gay marriage is legal, or will be soon, in nine states – Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington – and the District of Columbia. Federal courts in California have struck down the state’s constitutional ban on same-sex marriage, but that ruling has not taken effect while the issue is being appealed.

Voters in Maine, Maryland and Washington approved gay marriage earlier this month.

But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example in May. In Minnesota earlier this month, voters defeated a proposal to enshrine a ban on gay marriage in that state’s constitution.

The biggest issue the court could decide to confront comes in the dispute over California’s Proposition 8, the constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. The case could allow the justices to decide whether the U.S. Constitution’s guarantee of equal protection means that the right to marriage cannot be limited to heterosexuals.

A decision in favor of gay marriage could set a national rule and overturn every state constitutional provision and law banning same-sex marriages. A ruling that upheld California’s ban would be a setback for gay marriage proponents in the nation’s largest state, although it would leave open the state-by-state effort to allow gays and lesbians to marry.

In striking down Proposition 8, the 9th U.S. Circuit Court of Appeals crafted a narrow ruling that said because gay Californians already had been given the right to marry, the state could not later take it away. The ruling studiously avoided any sweeping pronouncements.

But if the high court ends up reviewing the case, both sides agree that the larger constitutional issue would be on the table, although the justices would not necessarily have to rule on it.

Throughout U.S. history, the court has tried to avoid getting too far ahead of public opinion and mores. The high court waited until 1967 to strike down laws against interracial marriage in the 16 states that still had them.

Some court observers argue that the same caution will prevail in the California case.

“What do they have to gain by hearing this case? Either they impose same sex marriage on the whole country, which would create a political firestorm, or they say there’s no right to same-sex marriage, in which case they are going to be reversed in 20 years and be badly remembered. They’ll be the villains in the historical narrative,” said Andrew Koppelman, a professor of law and political science at Northwestern University. Koppelman signed onto a legal brief urging the justices not to hear the California case.

Yet some opponents of gay marriage say the issue is too important, and California is too large a state, for the court to take a pass.

“The question is whether there’s a civil right to redefine marriage, as the California Supreme Court did. We don’t think there is,” said Brian Brown, president of the National Organization for Marriage.

Regardless of the decision on hearing the California case, there is widespread agreement that the justices will agree to take up a challenge to a part of the federal Defense of Marriage Act.

The law was passed in 1996 by overwhelming bipartisan majorities in the House and Senate and signed by President Bill Clinton. It defines marriage for all purposes under federal law as between a man and a woman and has been used to justify excluding gay couples from a wide range of benefits that are available to heterosexual couples.

Four federal district courts and two courts of appeal have overturned the provision in various cases on grounds that it unfairly deprives same-sex couples of federal benefits. The justices almost always will hear a case in which a federal law has been struck down.

The Obama administration broke with its predecessors when it announced last year that it no longer would defend the provision. President Barack Obama went further when he endorsed gay marriage in May.

Republicans in the House of Representatives stepped in to take up the defense of the law in court.

Paul Clement, the Washington lawyer representing the House, said the law was intended to make sure that federal benefits would be allocated uniformly, no matter where people live.

“DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage,” Clement said in court papers.

The court has several cases to choose from, including that of 83-year-old Edith Windsor of New York. Windsor faces $363,000 in federal estate taxes after the death of her partner of 44 years in 2009. In two other cases, same-sex couples and surviving spouses of gay marriages in Connecticut, Massachusetts, New Hampshire and Vermont are seeking a range of federal benefits, including Social Security and private pension survivor payments, access to federal employee health insurance and the right to file a joint federal income tax return.

In the only instance in which a gay couple already is receiving federal benefits, federal court employee Karen Golinski in San Francisco has been allowed, under a court order, to add her wife to her health insurance coverage. That could be reversed if the Supreme Court upholds the marriage law provision.

No matter which case the court chooses, the same issue will be front and center – whether legally married gay Americans can be kept from the range of benefits that are otherwise extended to married couples.

Justice Elena Kagan strongly suggested in her Supreme Court confirmation hearings that she would not take part in a gay marriage case from Massachusetts because she worked on it while at the Justice Department. The Massachusetts case is one of only two cases that have been decided by a federal appeals court. Windsor’s is the other.

Another case, from Arizona, has some similarities to the Defense of Marriage Act appeals. The 9th U.S. Circuit Court of Appeals, which invalidated Proposition 8 in California, struck down a state law that said only married state employees were eligible for health benefits and withdrew domestic partner benefits for unmarried state workers. Separately, the Arizona constitution bars same-sex marriage, so gay couples had no way to obtain the state benefits.

Mark Sherman can be reached on Twitter at www.twitter.com/shermancourt

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