ONTD Political

Supreme Court to take up same-sex marriage

3:46 pm - 12/07/2012
The court's decision to hear challenges to both California's Proposition 8 and the federal Defense of Marriage Act could lead to a series of historic rulings.

The Supreme Court agreed Friday to take up the explosive issue of same-sex marriage, thrusting itself into a policy debate that has divided federal and state governments and courts, as well as voters in nearly 40 states.

The high court's long-awaited decisions to hear challenges to the federal Defense of Marriage Act and California's Proposition 8 ban on same-sex marriage move the issue to the top of the national agenda following a year in which advocates scored major legal and political victories.

The court likely will hear the cases in March and rule by late June on a series of questions, potentially including one of the most basic: Can states ban gay marriage? It also will decide whether gay and lesbian married couples can be denied federal benefits received by opposite-sex spouses.

Any decision will make history on an issue that has divided the nation for decades. Nine states and the District of Columbia now permit same-sex marriages, and a decision against California's ban would add the 10th and largest state. A ruling against the 1996 federal law could lead to a spike in gay marriages in all those states. Several more states are likely to consider allowing same-sex marriages in 2013.

By adding gay marriage to its docket, the Supreme Court assured that its 2012-13 term will be as historic as its last one, when it ruled on immigration and upheld President Obama's landmark health care law.

While a ruling in the California case could be confined to that state, it holds the most potential for a sweeping national precedent. If the state's ban is overthrown on constitutional grounds, it could negate some 31 other state bans on gay marriage as well.

Groups on both sides of the issue hailed the court's decision to wade into the same-sex marriage debate.

"It's been our belief all along that the ultimate fate of Proposition 8 will be in the hands of the Supreme Court," said Andrew Pugno, general counsel for the advocacy group ProtectMarriage, which sought the high court's intervention.

"I fully believe that this court's going to come down on the side of freedom and equality," said Chad Griffin, president of the Human Rights Campaign, which fights for gay, lesbian, bisexual and transgender rights.

The state Supreme Court cleared the way for gay marriages in California four years ago, and quickly about 18,000 couples took advantage. The voter initiative that passed several months later, however, has blocked more nuptials pending the completion of court action.

The original lawsuit against Proposition 8, filed by a gay couple and a lesbian couple who seek to marry, has racked up two lower court victories. The district court said the law violated the Constitution's equal protection clause because it was "premised on the belief that same-sex couples simply are not as good as opposite-sex couples." The appeals court ruled more narrowly that voters could not take away a right that gays and lesbians previously enjoyed.

In appealing to the Supreme Court, lawyers for ProtectMarriage went so far as to quote Obama. Even as he endorsed gay marriage earlier this year, the president noted that millions of Americans "feel very strongly" about preserving the traditional definition of marriage because they "care about families."

Even if the court sides with gays and lesbians, opponents of same-sex marriage say it won't end the debate.

"The majority of Americans who have voted to protect marriage as the unity of a man and a woman are never going to go away," said Brian Brown, president of the National Organization for Marriage. A Supreme Court ruling in favor of same-sex marriage, he said, "would launch a national culture war."

In the Defense of Marriage Act challenge, the justices chose from among several overlapping cases, including challenges to the law from New England, New York and California. The plaintiffs in those cases – married couples, widows and widowers in states where gay marriage is or previously was legal – are seeking the same federal benefits accorded opposite-sex couples, from joint tax returns to survivor benefits.

The Defense of Marriage Act (DOMA) passed Congress after the so-called Republican Revolution of 1994 prompted President Clinton to compromise on the issue. His signature didn't have much practical impact until Massachusetts started the same-sex marriage trend in 2004. It was followed by Maine, Vermont, New Hampshire, Connecticut, Iowa, the District of Columbia and, however briefly, California.

The law has two main sections, only one of which — defining marriage in federal laws as between men and women — is being contested. Because of it, benefits and programs enjoyed by opposite-sex couples aren't available to gays and lesbians under federal employment, health, tax and other laws. (The other provision shields states from having to recognize gay marriages from other states.)

Attorney General Eric Holder announced last year that the Obama administration considered DOMA unconstitutional and no longer would defend it in court. Into the breach stepped House Republicans, who argued — to no avail thus far — that the law saves needed federal resources and ensures they are distributed equally among the states.

Other arguments go closer to the difference between gay and straight couples: procreation. A coalition of 15 states filed a brief in one of the New England cases asserting that "the different procreative capacities of same-sex and opposite-sex couples support a constitutionally legitimate distinction for defining marriage and affording special benefits to its participants."

The central issue for advocates of same-sex marriage comes down to questions of due process and equal protection. They say prohibitions serve no governmental objective or legitimate purpose — they don't make life or marriage any better for heterosexuals.

In 10 consecutive lower court cases, federal judges have ruled on the side of gays and lesbians. In Nevada, a district court judge held last month that there is no constitutional right to same-sex marriage.

"That gives us enormous hope that the Supreme Court will swiftly affirm what these courts have all said," said Evan Wolfson, executive director of the advocacy group Freedom to Marry.

Advocates for gay rights applauded the court's agreement to hear a case and said a decision affirming or expanding on the lower court rulings would make history.

"I fully believe that this court's going to come down on the side of freedom and equality," said Chad Griffin, president of the Human Rights Campaign.

Those opposing same-sex marriage argue that it has no home inside the Constitution. They say gay couples can't procreate, so they can be treated differently. They say states and the federal government can't be forced to extend costly benefits to gays and lesbians.

Brian Brown, president of the National Organization for Marriage, said a decision in favor of same-sex marriage would set off "a constitutional revolution."

"The states don't have the right to obligate the federal government," he said. "They're forcing the federal government to obey state law."

The geographic deck remains stacked against gay marriage, but the tide may be turning. Voters in 31 states have banned same-sex marriages, and seven more states have laws barring those unions.

Still, 2012 has been a banner year for the gay rights movement. Obama became the first president to endorse same-sex marriage. Voters in Maine, Maryland and Washington legalized it; Minnesota voters rejected a ban on it.

The past year has been "an extraordinary year of triumph and progress," Wolfson said. "Gays have not used up the marriage licenses. There's still plenty of marriage left, and no one has been hurt."

Several other states, from New Jersey to Hawaii, could join the gay marriage movement as early as next year. But the progress hasn't been without interruption. North Carolina voters banned gay marriage in May with 61% of the vote.

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mollywobbles867 7th-Dec-2012 10:03 pm (UTC)
I'm scared.
crossfire 7th-Dec-2012 10:06 pm (UTC)
alryssa 7th-Dec-2012 10:13 pm (UTC)


twirly 7th-Dec-2012 10:09 pm (UTC)
I am nervous, scared and hopeful.

Also feeling sick after reading some comments on a local news stations post about it, bringing back a lot of bad memories of my coming out, uggh.

Edited at 2012-12-07 10:10 pm (UTC)
coyotesuspect 7th-Dec-2012 10:13 pm (UTC)
I ran through the current justices in my head when I read this, and damn I always forget Breyer.

So I know Kennedy's considered the wild card, but I kind of think Roberts might want to be remembered kindly by history/actually do his job. Or maybe I'm just overly hopeful based on his Obamacare vote. :C
agentsculder 7th-Dec-2012 10:25 pm (UTC)
I think you're right about Roberts. I think he does want to be on right side of history, so there's a good shot there could be a 6-3 ruling on the case. For me, the scary part is that this could be a VERY complex decision. We could get a majority that agrees that the judge's decision is correct, but only as it applies in CA, and then get a majority that also affirms that marriage equality is not a right on the federal level.

But honestly, I think there are five solid votes to uphold the CA judge's decision. It's really the federal question that I'm not so sure about. But the fact that now marriage equality now polls at greater than 50% may help sway Roberts.
kitanabychoice 7th-Dec-2012 10:16 pm (UTC)
Those opposing same-sex marriage argue that it has no home inside the Constitution. They say gay couples can't procreate, so they can be treated differently.

Um, what the fuck is THIS. So what about sterile men and women? They can be treated differently too because they can't procreate? Fucking assholes, man.
amyura 7th-Dec-2012 10:36 pm (UTC)
And old people.
angelus7988 7th-Dec-2012 10:31 pm (UTC)
So why will Kagan recuse herself this time?
brittlesmile 8th-Dec-2012 02:11 am (UTC)
I don't really understand the practical workings of recusal & when exactly someone chooses to recuse themeselves but it seems like it's based on her involvement in a DoMA case while she was Soliciter General?

EDIT: Actually, I checked up on it, and it seems like they decided to hear a DoMA case that Kagan wasn't involved in, so she won't be recusing herself.

Edited at 2012-12-08 02:18 am (UTC)
lizzy_someone 7th-Dec-2012 10:34 pm (UTC)
HOW any judge worth their salt can consider the appealers' (sorry, I don't have a great command of technical legal terms) claim to have standing with a straight face is beyond me. (Also, how does this article not even bring up the standing issue?)

Also, fuck this, we ALREADY WON THIS CASE TWO YEARS AGO. We won it TWICE. The fact that this is still tied up in the courts at all is a victory on the part of the homophobes. Before anyone gets too excited, keep in mind that what's happening right now is exactly what the homophobes want.

Consoling myself with a few thoughts: 1) Kennedy on Romer v. Evans, 2) Roberts on ACA, 3) RIDICULOUSLY BLATANT LACK OF STANDING IMO, and 4) as someone on Prop 8 Trial Tracker pointed out (which is a maddening organization but one I can't seem to give up), it's increasingly obvious which direction this whole issue is headed, and Roberts will have an eye toward how he'll end up looking in the history books.

But I have zero legal credentials, so my two cents might be just WHARBLGARBL to a person with actual, you know, knowledge.
evilgmbethy 8th-Dec-2012 02:05 pm (UTC)
I have all these hopes that Roberts will turn into a Souter
amyura 7th-Dec-2012 10:35 pm (UTC)
Call me cynical, but why don't we just ask Anthony Kennedy and John Roberts NOW how they plan to vote? We already know how the other seven are going to rule.
lizzy_someone 7th-Dec-2012 10:43 pm (UTC)
lol, I wish! I'm tired of waiting!
caterfree10 7th-Dec-2012 10:46 pm (UTC)
WAIT A GODDAMN MINUTE, why aren't BOTH provisions of DOMA being challenged? The latter provision is also unconstitutional because it violates the Full Faith and Trust clause! Why isn't that being challenged alongside the first?

And the whole "They can't procreate, therefore they should be treated differently!" argument continues to baffle me. Like, my aunt on my mom's side was married and had no children and neither has my aunt on my dad's side though she's still married to her husband. What the fuck makes them so damn special over same gender couples? And that's not even touching how there are some same gender couples who *can* reproduce bc transfolk exist too. :V
hllangel 7th-Dec-2012 10:51 pm (UTC)
Actually, it doesn't necessarily: marriage is a status, not a full and final judgment on the merits in court. There's currently a lot of debate about whether or not full faith and credit applies to marriage.
zinnia_rose 7th-Dec-2012 10:54 pm (UTC)
I am really scared about this. :-/ A good result would be amazing, but a bad result will set us back SO far and just be all-around horrible. I feel sick imagining the increased violence and homophobia that a bad ruling could bring.
bushy_brow 8th-Dec-2012 12:32 am (UTC)
I feel sick imagining the increased violence and homophobia that a bad ruling could bring.

Yeah, but a good ruling would probably do the same thing, so. :-/
poetic_pixie_13 7th-Dec-2012 11:17 pm (UTC)
If we're gonna talk about the law of the land and what's implied to be 'real' America standing up for what's right~

crossfire 7th-Dec-2012 11:42 pm (UTC)
I...can't even imagine what it might be like to be not only accepted but considered sacred.
cher_arlequin 7th-Dec-2012 11:42 pm (UTC)
Lord help us.
borderline_mary 8th-Dec-2012 12:05 am (UTC)
I can't with how badly I think this will end.
lovexall 8th-Dec-2012 01:13 am (UTC)
It's about damn time. I'm so anxious right now- I hope this doesn't end badly. It could set us back so far.
tabaqui 8th-Dec-2012 01:49 am (UTC)
It seems to me that there is *precedent* for legalizing/recognizing same sex marriage. Loving v Virginia: "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival...."

How can that be ignored or set aside or, even worse, forgotten? MARRIAGE is a BASIC CIVIL RIGHT of 'man' - used here to include all people, no qualifiers.


I hold out hope.
agentsculder 8th-Dec-2012 02:42 am (UTC)
You should. The fact that marriage is already considered a fundamental Constitutional right means that ANY limitation on it must pass the strict scrutiny test. That means the state must: 1) have a COMPELLING reason to limit it, 2)it must be narrowly tailored, and 3) the law must use the least restrictive means to achieve the government interest.

The judge in CA said in his opinion that since there is no compelling government interest, gay marriage cannot be restricted. I think SCOTUS would have a hard time finding any compelling as well. Protecting traditional marriage is much harder to argue now that marriage equality is the law in several states.
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