ONTD Political

Supreme Court decides this week whether to rule on gay marriage

1:49 am - 11/26/2012
Timing will be at issue as the justices confer. In the past, the court has been faulted for waiting too long or moving too quickly on recognizing constitutional rights.

By David G. Savage, Washington Bureau

November 24, 2012, 9:16 p.m.

WASHINGTON — After two decades in which gay rights moved from the margin to capture the support of most Americans, the Supreme Court justices will go behind closed doors this week to decide whether now is the time to rule on whether gays and lesbians have a constitutional right to marry.

For justices, the issue is not just what to decide, but when to decide it. In times past, the court has been faulted for waiting too long or moving too quickly to recognize constitutional rights.

The justices did not strike down state bans on interracial marriage until 1967, 13 years after they had declared racial segregation unconstitutional. Yet in response to the growing women's rights movement, the court in 1973 struck down all the state laws restricting abortion, triggering a national "right to life" movement and drawing criticism even from some supporters that the Roe vs. Wade ruling had gone too far too fast.

Now, the justices must decide whether to hear an appeal from the defenders of California's Proposition 8, the 2008 voter initiative that limited marriage to a man and a woman.

At the same session Friday, the court will sift through several appeals to decide whether legally married gay couples have a right to equal benefits under federal law. Appeals courts in Boston and New York have struck down the part of the Defense of Marriage Act that denies such a right, and the justices are almost certain to take up a case to resolve that question.

The Proposition 8 case, known as Hollingsworth vs. Perry, presents justices with the more profound "right to marry" question.

Opinion polls now show a majority of Americans favor marriage equality, and support for it has been growing about 4% per year. On Nov. 6, voters in Maine, Maryland and Washington approved same-sex marriage, bringing the total to nine states.

Does the shift in public opinion suggest the court should uphold gay marriage now, or wait for more states, perhaps a majority, to legalize it?

Defenders of Proposition 8 say their case "raises the profoundly important question of whether the ancient and vital institution of marriage should be fundamentally redefined," and in this instance, by federal judges.

A federal judge in San Francisco struck down Proposition 8 as discriminatory and irrational. In February, the U.S. 9th Circuit Court of Appeals affirmed that by a 2-1 vote, ruling the ban on gay marriage violated the Constitution's guarantee of equal protection of the laws. The majority relied heavily on a 1996 opinion by Justice Anthony M. Kennedy that had struck down an anti-gay initiative adopted by Colorado voters.

The decision on whether to hear the case could be a hard call for both the court's conservatives and liberals.

Usually, the justices are inclined to vote to hear a case if they disagree with the lower court ruling. The most conservative justices — Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — almost certainly think the 9th Circuit's ruling was dubious. Scalia, for example, says the "equal protection" clause, added to the Constitution after the Civil War, aimed to stop racial discrimination and nothing more. He often insists the justices are not authorized to give a contemporary interpretation to phrases such as "equal protection."

If Chief Justice John G. Roberts Jr. joins the other three, the conservatives would have the needed four votes to hear the Proposition 8 case.

They may hesitate. To form a majority, they would need Kennedy, the author of the court's two strongest gay rights rulings. His 2003 opinion struck down a Texas anti-sodomy law and said the state could not "demean" gays by treating them as second-class citizens. Five months later, the Massachusetts high court, citing Kennedy's opinion, became the first to rule that gays and lesbians had a right to marry.

If the court were to take up the Proposition 8 case, Kennedy, 76, would likely control the opinion.

"If you care about history and your legacy, that must be pretty tempting, to write the court's opinion that could be the Brown vs. Board of Education of the gay rights movement," said Michael J. Klarman, a Harvard legal historian, referring to the case that ordered school desegregation.

Still, the court's liberals also may hesitate. Justice Ruth Bader Ginsburg, though a leading women's rights legal advocate, has said she thought the court made a mistake in the 1970s by moving too fast to declare a national right to abortion.

If the court votes to hear the California case, it will be decided by late June. If the appeal is turned down, it means gay marriage will become law in California because of the 9th Circuit's decision. The court may also put off a decision until the justices have decided on the constitutionality of the Defense of Marriage Act, also by June. The court is likely to announce whether it intends to hear the cases by Dec. 3.

Many legal experts, including gay-rights advocates, hope the justices will avoid a decision on the right to marry for now.

"The court is probably reluctant to impose same-sex marriage on the entire country right now. So, this is an excellent time for them to shut up and do nothing," said Andrew Koppelman, a Northwestern law professor.

Two Los Angeles law professors — Scott Cummings at UCLA and Douglas NeJaime at the Loyola Law School — said the strong shift of public opinion in favor of gay marriage argues for the high court to stand aside for now. "The tide is flowing only one way. So a wait-and-see approach seems prudent at this stage," Cummings said.

But in the South, the perspective may differ.

"Tennessee and the other deeply red states are not going to [allow gay marriage] on their own, at least for another 25 years," said Suzanna Sherry, a professor at Vanderbilt Law School. "People here sincerely believe it will harm their marriage and offend God if gays are allowed to marry." She says the court has a duty to take up the issue. "If there is no rational basis for denying gays the right to marry, the court should step in and protect gays from the tyranny of the majority," she said.

The defenders of Proposition 8, by contrast, argue the Constitution "leaves the definition of marriage in the hands of the people, to be resolved by the democratic process in each state." Lawyers for Indiana and 14 other states also urged the court to reverse the 9th Circuit's decision, which they called "radical" and "insulting" to the voters of California who sought to restore the "state's traditional definition of marriage."

Ted Olson, the conservative Washington lawyer who joined David Boies to lead the legal attack on Proposition 8, acknowledges he is torn over whether the Supreme Court should hear the case.

"We won the case, and if they don't take it, our clients have won. They will be allowed to marry," Olson said. "But if they take the case, it could lead to a broader victory. We believe gays and lesbians have a constitutional right to be treated equally. And if it is a constitutional right, you shouldn't have to try to win at the ballot box in every state."


As you might guess, the comments are pretty gross. Read at your own risk!
hinoema 26th-Nov-2012 05:49 pm (UTC)
Opinion polls now show a majority of Americans favor marriage equality, and support for it has been growing about 4% per year.

Sooner or later, they'll either need to get with the program or be left behind one state at a time.
little_rachael 26th-Nov-2012 06:11 pm (UTC)
Justice Ruth Bader Ginsburg, though a leading women's rights legal advocate, has said she thought the court made a mistake in the 1970s by moving too fast to declare a national right to abortion.


Seriously, what possible reason could she have for saying that?

Anyway, what will happen if the Supreme Court decides against marriage equality? Will things remain as they are, or will it be a step backward?
maladaptive 26th-Nov-2012 06:45 pm (UTC)
Seriously, what possible reason could she have for saying that?

Possibly because Roe v. Wade was decided on shaky ground and there were better arguments for it than a constitutional guarantee of privacy-- and the shakiness of Roe v. Wade is part of why abortion rights are being eroded the way they are. Because the privacy right is vague and so the courts built this spectrum of when the fetus gets more and more rights later in pregnancy. If it was decided on bodily sovereignty rights (somehow, or some other constitutional guarantee) it would be harder to chip at.
moonshaz 27th-Nov-2012 04:06 pm (UTC)
Good summation!
zinnia_rose 26th-Nov-2012 07:01 pm (UTC)
I really think that a lot of "pro-lifers" would not be so in favor of outlawing abortion if they had been around when it was illegal.

Honestly, I kind of doubt it. :-/

(Edited b/c HTML hates me)

Edited at 2012-11-26 07:02 pm (UTC)
rkt 27th-Nov-2012 05:53 am (UTC)
yaeh my mother became a nurse in the late 60s. she's generally against abortion, but is very much in favor of its legalization...

at least she used to be. she's gotten a bit gun-clutching and "take back our country" lately on facebook. so.
romp 28th-Nov-2012 05:20 am (UTC)
I'd like to think so but I'm sure many DO and just don't know. Not only was the topic taboo (and criminal!) but it had a stigma.
thecityofdis 26th-Nov-2012 06:22 pm (UTC)
fuck, no.

not this court. not now.
lone_concertina 26th-Nov-2012 07:11 pm (UTC)
mte wait for Scalia to retire/DIE
crossfire 26th-Nov-2012 09:03 pm (UTC)
I fear he has a sufficient quantity of Essence of Gelfling to last quite some time, unfortunately.
xylophagous 27th-Nov-2012 12:24 am (UTC)
Ahhhh thanks for that awesome reference lol
bushy_brow 27th-Nov-2012 12:32 am (UTC)
Too depressed about this even to lol, sorry to say. :-/
cellared 26th-Nov-2012 08:39 pm (UTC)

nightmare inducing
shadowwolf1321 26th-Nov-2012 06:45 pm (UTC)
I can't believe that they are having the Supreme court decide this. What do they think their decision is going to change? Things could either remain as they are or set marriage equality back.

More and more people are becoming in favor of marriage equality. States can't keep living in the past forever.

agentsculder 27th-Nov-2012 01:08 am (UTC)
I can't believe that they are having the Supreme court decide this.

Not to get all law school on you, but the US Supreme Court pretty much EXISTS to decide stuff like this. When there is a conflict between state laws and federal law, or when a lower federal court is making decisions about what is Constitutional, they're SUPPOSED to get involved. If it wasn't for the Supreme Court's decision in Brown v. Board of Education in 1954 desegregation would have taken DECADES longer. I know with this more conservative court its hard to remember, but 30 years ago the Court took up issues regarding civil rights all the time. Often deciding in favor of minorities.

If the Court decides that everyone should be allowed to marry who they like, and that states cannot limit the right to marriage as they see fit, all those state constitutional amendments banning gay marriage would be struck down. That is what is at stake if the Court were to take the California case. The DOMA one can be decided on a much narrower ground, which means it's more likely the Court might take that one up. They could strike down DOMA as being unconstitutional, but also manage to say that there's still no federal right to gay marriage and that states can decide that for themselves.
shadowwolf1321 27th-Nov-2012 01:35 am (UTC)
I understand that. I meant it in the way that marriage equality should be a fundamental civil right, and not something that the supreme court decides... (Does that make sense?)
agentsculder 27th-Nov-2012 03:21 am (UTC)
I understand that, but unless the US passed a Constitutional amendment guaranteeing marriage equality, the only way to ensure marriage equality is for the US Supreme Court to decide that right exists based on what the current Constitution says and on stare decisis grounds.

Marriage was determined to be a fundamental tight waaaaay back in 1967 (Loving v. VA), but until the US Supreme Court explicitly states that LGBT people have the same rights that interracial couples do, there will ALWAYS be that question out there. To me, it should be a no brainer (based on Loving). And in general I agree with you, I hate the idea of rights being put up to a vote. That said, I do think that the current Court might issue a more progressive ruling on gay rights than some expect. Kennedy has been pretty consistent in his stance that gay people deserve the same rights as everyone else.
farchivist 27th-Nov-2012 04:39 am (UTC)
I think that if SCOTUS chooses to decide the Prop 8 case, it's going to be a slam-dunk for the plaintiffs. Every single argument that the Prop 8 defenders have put forth, from the get-go, have been some of the most brain-dead, jaw-droppingly stoopid arguments that I've ever seen, with the best one they put forward being the malarkey about how marriage is for procreation of children. Sure, it will probably end up 4-3 with the conservative bloc coming up with some justification for their dissent, but it will be half-hearted at best.

And I think you're completely right on how Kennedy would vote.
thenakedcat 27th-Nov-2012 07:23 pm (UTC)
It's also very likely that SCOTUS could hear the Prop 8 case and put off making a real ruling on DOMA for at least another year. The circumstances around Prop 8 were so convoluted (with same-sex couples first being allowed to marry and then being stopped in their tracks) that even a ruling in favor of the plaintiffs would likely be on "no take-backsies" grounds that wouldn't much affect the status of same-sex marriage elsewhere in the country. It would give the liberal justices a chance to start laying groundwork for marriage equality without having to confront the conservative wing of the court as directly as the DOMA discrimination cases.

I agree that Kennedy is the most likely swing vote on the case, but after the Chief Justice's surpraiz flip on the individual health insurance mandate and most of the pro-marriage equality court decisions in the past couple of years coming from Republican-era appointees, I am starting to wonder if they won't be able to flip one more conservative justice...
tinylegacies 26th-Nov-2012 06:55 pm (UTC)
"The court is probably reluctant to impose same-sex marriage on the entire country right now.

Can someone please explain to me how the FUCK they would be imposing anything on anyone??? No one would be required to get gay married for fuck's sake.
zinnia_rose 26th-Nov-2012 07:03 pm (UTC)
lone_concertina 26th-Nov-2012 07:12 pm (UTC)
Theoretically, it could lead to the downfall of DOMA, which would mean that marriages in a state that allows it would be recognized nationally. So I could go to MA to get married and move back to TX, ~imposing~ my marriage on gross republicans.
palebold 26th-Nov-2012 11:07 pm (UTC)

And considering the number of individual churches around the country that support it, and would be happy to marry same-sex couples if they could, that argument is a far behind it's not even funny anymore.
terra_tenshi 26th-Nov-2012 07:32 pm (UTC)
From a solely legal perspective the idea of ruling "too quickly" on an issue seems impossible. Assuming that both sides were given equally time to prepare and state their arguments then from a purely legal perspective wouldn't the law still be wrong/right next year, the year after, or five years in the future?
lickety_split 26th-Nov-2012 10:19 pm (UTC)
That's a really big assumption.
crossfire 26th-Nov-2012 08:59 pm (UTC)
If this does go before the court, I'm actually pretty sanguine about things going well. Kennedy seems to have a good head on his shoulders on this topic. Scalia and his little entourage will write a snotty, hateful little "you can't sit with us" dissent like they always do but in the end I think even they recognize which way the wind's blowing.

tbh though I'm torn between "fuck yeah, let's do this" and "fuck everyone, my rights shouldn't be up for ~review~." The fact that I should be nervous about what straight people think about my civil rights makes me stabby.
ohmiya_sg 26th-Nov-2012 09:37 pm (UTC)
Does anyone know of a handy dandy chart or site or something of the current justices and when they're likely to retire, along with how they lean? I feel like it'd be helpful for me to look at when posts like these come along.
agentsculder 27th-Nov-2012 12:58 am (UTC)
Current members of the court are:

John Roberts (Chief Justice) - conservative, age 57
Antonin Scalia - very conservative, age 76
Anthony Kennedy - the guy in the middle, more liberal on individual rights, age 76
Clarence Thomas - very conservative (nearly always votes with Scalia), age 64
Ruth Bader Ginsburg - liberal, age 79
Steven Breyer - liberal, age 74
Samuel Alito - very conservative, age 62
Sonia Sotomayor - liberal, age 58
Elena Kagan - liberal, age 52

Most likely to retire next: Breyer or Ginsburg. Personally, I'm hoping Scalia or Kennedy decides to bail in the next four years so Obama can appoint a solid liberal to replace them.
ohmiya_sg 27th-Nov-2012 01:02 am (UTC)
Well, thank you! :D
thesilverymoon 27th-Nov-2012 01:10 am (UTC)
I can see Ginsburg leaving sometime in the next four years, but I'm not worried about who Obama would have replace her (frankly, I doubt she is either).
and oh dear God I hope Scalia leaves soon. He'll stick around four more years if he can help it I'm sure, but I'd love it if he didn't...
ohmiya_sg 27th-Nov-2012 02:21 am (UTC)
Wouldn't it be hilarious if he clung to his seat for four more years only to see another Democrat in office after Obama?
bushy_brow 27th-Nov-2012 08:03 pm (UTC)
Has Scalia ever mentioned retiring? Because to me, he seems like one of those who would have to die in office rather than ever even THINK about stepping down.
rkt 27th-Nov-2012 06:26 am (UTC)
same. i can see her leaving nowish so that it will be obama who replaces her,
moonshaz 27th-Nov-2012 04:14 pm (UTC)
thenakedcat 27th-Nov-2012 07:32 pm (UTC)
Yeah, when Souter left everyone was flat-out STUNNED that he bailed before Ginsburg, since her health issues are getting pretty serious. I'm almost certain that she'll leave within Obama's second term, because he'll make sure to replace her with another liberal female justice, to keep the court from backsliding towards even worse underrepresentation.
hinoema 27th-Nov-2012 12:16 pm (UTC)
We need a mandatory retirement age for all government positions so they don't look like extras from Jurassic park. How the hell can a group whose median age is 70 be even remotely in touch?
ms_maree 27th-Nov-2012 10:58 pm (UTC)
People in that generation aren't aliens. They live in the same world we do too.
hinoema 28th-Nov-2012 04:41 am (UTC)
Do they? What I see is a homogeneous bubble of privilege an insulation.
callmetothejedi 2nd-Dec-2012 03:02 pm (UTC)
Thanks for this info. :) I was annoyed/surprised that the Court decided not to issue a decision this past Friday, but I'm hopeful that they will issue a decision at some point tomorrow.

I could see Ruth Bader Ginsburg retiring at some point over the next four years, given her health issues. My concern is that if Ginsburg (or any of the other Justices) retire during Obama's second term, and he nominates a replacement, then the Republicans in Congress are going to do their damnedest to block his nomination.
thesilverymoon 27th-Nov-2012 01:07 am (UTC)
It's not a chart, but I got this from Wiki Answers (not a legit source I know, but this stuff is all true, so whatever):

Chief Justice John G. Roberts, Jr., appointed by George W. Bush (R) in 2005
Elena Kagan, appointed by Barack Obama (D) in 2011
Sonia Sotomayor, appointed by Barack Obama (D) in 2010 (self-proclaimed Independent)
Samuel Alito, appointed by George W. Bush (R) in 2006
Stephen Breyer, appointed by Bill Clinton (D) in 1994
Ruth Bader Ginsburg, appointed by Bill Clinton (D) in 1993
Clarence Thomas, appointed by George H. W. Bush (R) in 1991
Anthony Kennedy, appointed by Ronald Reagan (R) in 1988
Antonin Scalia, appointed by Ronald Reagan (R) in 1986

So our conservatives here would be Thomas, Scalia, Alito, and Robert. The liberals are Kagan, Sotomayor, Ginsburg, and Breyer. Kennedy, from everything I've read, leans conservative but is considered more of a swing vote than the others.
piratesswoop 27th-Nov-2012 10:25 pm (UTC)
damn scalia has been on the supreme court longer than i've been alive
wrestlingdog 27th-Nov-2012 12:48 am (UTC)
This makes me so nervous. I don't know what to believe.
caterfree10 27th-Nov-2012 01:21 am (UTC)
He often insists the justices are not authorized to give a contemporary interpretation to phrases such as "equal protection."
Call me ignorant as fuck about the judicial system, but last I checked, it was the SCOTUS' JOB to fucking interpret the constitution, and that should include "modern" interpretations. They're probably right in that it was written primarily to prevent racial discrimination. But you know what? The way the law is written, it can and should be more inclusive since the language is not race-specific. There is nothing wrong with looking at laws from a modern viewpoint.

"If there is no rational basis for denying [gay people] the right to marry, the court should step in and protect gays from the tyranny of the majority,"
Oh thank god we have someone with a fucking brain.
lizzy_someone 27th-Nov-2012 03:34 am (UTC)
The Proposition 8 case, known as Hollingsworth vs. Perry, presents justices with the more profound "right to marry" question.

Wait, I thought the Prop 8 case hinged on technicalities by this point -- like, whether the pro-Prop 8 people have legal standing to appeal. And anyway the case has such narrow scope, doesn't it? Since the California situation (gay marriage legalized via court and subsequently de-legalized via popular vote) has never happened in any other state. Which is why I've always heard that SCOTUS won't take this case. Which, frankly, I am grateful for, because I am not at all confident in the court to make the right decision, and fuck it, Prop 8 was already ruled unconstitutional more than two years ago, it's about goddamn time for that ruling to take effect.
thenakedcat 27th-Nov-2012 07:39 pm (UTC)
Yeah, I really don't know where they're getting the idea that Prop 8 is less technical than the DOMA discrimination cases. The last couple rulings on Prop 8 touched on the marriage equality issue but ultimately found it invalid because of the fuckery involved in allowing couples to marry and then taking that right away by referendum. If the Court's more likely to take on Prop 8 than DOMA this year, it's because they're POSTPONING settling the deeper discrimination issue yet again.
noneko 27th-Nov-2012 02:19 pm (UTC)
On one hand, the conservative justices are dicks.

On the other, Ted Olson spent years stacking the court, I'm sure they owe him some favors.
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