Supreme Court to Hear Marriage Equality Cases

[JockBoy87]

The Supreme Court will hear two marriage equality cases on March 26 & 27, next Tuesday and Wednesday. A final decision is expected by June.

There is an awful lot of news, opinion, and activity buzzing around, and I'm sure more will file in this thread in coming days. Below is some basic information about dates and times, some of the events that are going on, followed by a brief analysis of cases and the possible outcomes.

• United for Marriage will be holding a rally on March 26 @ 8:30 a.m. It is scheduled to go on until 11:30 or 12:00 noon, according to the HRC.

• There are 150 local events in most major cities, with links to individual Facebook pages on the UFM website.

• Oral arguments are public, and the court begins seating at 9 a.m. See the Supreme Court visitor website for more details. There are reports of lines already forming, possibly the earliest ever for a public hearing at the Supreme Court.

The two court cases concern the federal Defense of Marriage Act (DOMA) and the ban on same sex marriage in California, also known as Proposition 8. Married couples in the nine states that provide same sex marriage still cannot access federal rights because of DOMA.

The March 26th hearing will focus on Proposition 8, while the March 27th hearing will focus on DOMA.

Outcomes for these cases are uncertain, but much expert opinion on the blogosphere predicts that DOMA will be overturned, and there will be at least a minimally good outcome for the Proposition 8 case, also known as Hollingsworth v. Perry. The most current and popular theory for Proposition 8 is that the Supreme Court will mandate same sex marriage in nine states with civil unions and full partnership rights. Read more about the nine-state solution here.

This is just the most basic information for the original post, and I encourage my fellow Jubbers to share more.

[rareboy]

I am on the edge of my seat with all of this. It is making me crazy to have to wait through all of this, particularly from the perspective of a Canadian with these rights.

I think that the Prop 8 decision is going to be as narrow and focussed on the points of law as it can get instead of being about whether homos can get married. This could make it a wild card ruling.

DOMA? I can't see how the SC could help but tell the Feds that they have no justification for this law.

[AstareGod]

Thanks for all the info, JB! I knew the hearings for the cases were starting soon. I'll be following all this very closely and will be sure to stick to this thread and update it as necessary. Let's make this a repeat of November!!!

[bike10]

Will be landmark case and hope and pray the vote goes for our community.

[JockBoy87]

Will be landmark case and hope and pray the vote goes for our community.

10 years to the day since Lawrence v. Texas was heard.

Also a week before you became a founding Jubber

[CowboyBob]

Foamy the Squirrel explains it all.

[Rolyo85]

The weird part is:

1. Both sides - ours and the haters - talk about these two cases as if they're the new Roe V Wade. They expect historic decisions, not just narrow ones.

2. Hate groups already have the preemptive sadz, as if they've already lost. Their entire rhetoric is "even if the court overrules it, we will never stop!" (which they will, because they're broke) instead of "the court will never overrule it".

It's kinda funny to see how hard the blow from November 6 was to their bigoted cause.

[Ninja108]

Gay marriage will be settled long before abortion is IMO.

[JockBoy87]

By the way, there could be no ruling at all in either case if the court rules that appellants have no standing to appeal.

http://www.lgbtqnation.com/2013/03/s...marriage-case/

[bankside]

I am on the edge of my seat with all of this. It is making me crazy to have to wait through all of this, particularly from the perspective of a Canadian with these rights.

I know, eh? First healthcare, now equality….they just need to do something about guns and we can basically start calling them the United Provinces of America!

[Ninja108]

By the way, there could be no ruling at all in either case if the court rules that appellants have no standing to appeal.

http://www.lgbtqnation.com/2013/03/s...marriage-case/

Very well could be the case but I don't see that happening only because they know it would simply be kicking the can down the road.

[JockBoy87]

Very well could be the case but I don't see that happening only because they know it would simply be kicking the can down the road.

That reminds me of the Vermont decision in 1999 that forced the legislature to have a tumultuous and bitter fight over civil unions. When courts kick the can, things get ugly.

[Ninja108]

John Roberts is a hard core conservative but he knows that the scenario above would reach his court again,something many say he loathes.

[JockBoy87]

One of the biggest outcomes of this challenge, if successful, could be the eventual cracking of the GOP over this issue.

There is already evidence that their resolve is weakening: http://www.timesfreepress.com/news/2...-gay-marriage/

[Sausy]

The best outcome, a narrower one than any outright legalization of marriage equality, is one that overturns DOMA by stating those who live in states where civil unions or marriage equality outright have been legalized have full federal recognition under the law. My view of the court is that except in the most extreme cases it should not determine policy, but create the conditions that the actual law and spirit of the Constitution be fully applied to all. Narrow but important victories in the process is far more important than sweeping dictates that instead of deciding things create nothing but bitterness...it's the court's role to interpret legality of constitutional issues, not legislate from upon high. It irritates me no end to see every court vacancy used by right(yes, Benvolio... judicial activism is NOT limited o the left)or left to push social engineering agendas... the only thing a justice on the Court owes is trying to do what is right under the law, and striking down what goes beyond the scope of the law.

The outcome I hope for and think will happen will go a long way in fracturing the hold of the hard religious right on the GOP...No elitist decisions from on high for them to rally conservatives around, but hard cold matter of fact.

[JockBoy87]

Narrow but important victories in the process is far more important than sweeping dictates that instead of deciding things create nothing but bitterness...it's the court's role to interpret legality of constitutional issues, not legislate from upon high.

Let's test this theory.

When the Supreme Court desegregated schools in 1954, should they have limited it to Kansas?

How about Mildred Loving? Should her marriage have been legal only in Virginia?

Don't you think freedom and equality are worth risking injury to the pride of prejudicial people?

And why is it that people continually compare the abortion debate to same sex marriage? They are not comparable in any way. One is a medical procedure; the other is a lifelong commitment between two adults. One concerns the definition of life, the other unequal treatment of same sex couples. They are apples and oranges.

It should be proof enough that there is no debate or outrage over the Loving v. Virginia (1967) decision, when just 17% of people approved of interracial marriage.

[RazorzEdge88]

Narrow but important victories in the process is far more important than sweeping dictates that instead of deciding things create nothing but bitterness

...

Please tell me you're joking...

[Ninja108]

I sadly think there will be the nine state solution. WHich is dumb for several reasons including the fact there really would be no way to spin the fact a couple is married in one state but not another. The lawsuits will fly and the Supreme Court knows that.

[JockBoy87]

...

Please tell me you're joking...

After all the civil rights cases that have gone before the court in decades past, I'm absolutely floored by that.

[rareboy]

Doesn't surprise me at all, given the source.

Sadly though, I believe the decision will be so narrow on Prop 8 as to not even seem to deal with the issue of homo marriage at all, while the DOMA case will embolden Scalia and Thomas to trample all over the constitution in order to deliver a hate filled diatribe against homos.

[JockBoy87]

Doesn't surprise me at all, given the source.

To whom are you referring?

Sadly though, I believe the decision will be so narrow on Prop 8 as to not even seem to deal with the issue of homo marriage at all, while the DOMA case will embolden Scalia and Thomas to trample all over the constitution in order to deliver a hate filled diatribe against homos.

You will definitely see it from Scalia, not sure about Thomas.

[JockBoy87]

The direct Facebook links to a rally in your city.

http://purpleunions.com/blog/2013/03...medium=twitter

[AstareGod]

The direct Facebook links to a rally in your city.

http://purpleunions.com/blog/2013/03...medium=twitter

Thank you, thank you, thank you JB for posting this!!! I'll be going to the one in Gulfport, MS tomorrow night and I will try to remember to take lots of pictures and post some of them to this thread. I'm surprised at the number of events there are around the nation.

[scream4ever]

I tried to organize one for Duluth, but we're swamped with it being spring break for the legislature so we need to concentrate our efforts on lobbying!

[JockBoy87]

Editor of lawyers.com thinks the ruling will strike down all bans.

Regardless of what is said in the oral arguments, a reading of the merits briefs makes it clear that the Court will have to rule in favor of gay marriage, and will improve the lives of 130,000 legally-married couples in same-sex marriages.

http://www.lgbtqnation.com/2013/03/w...-sex-marriage/

[JockBoy87]

The market price for ticket seats is running $6000 a pop.

http://www.huffingtonpost.com/2013/0...r=Gay%20Voices

[RazorzEdge88]

After all the civil rights cases that have gone before the court in decades past, I'm absolutely floored by that.

It's so wrong on so many levels.

But just to squash this notion of a possible "backlash of bitterness" - most people don't care anymore. There would be a very small minority of Americans who will get worked up over this, but most people will get on with their lives.

There are two reasons I reach this conclusion:

1. The bevy of recent polls showing majority support for marriage equality across the United States
2. The fact that most Repubs seem to be giving up/in on this issue; an apples-to-apples comparison of values voters polling at CPAC in recent years has shown that ssm is now a low priority issue even for the conservative base

People just don't care these days. Sitting and biting one's nails over some huge "backlash" seems laughably pointless.

[GiancarloC]

Even if there were tens or even hundreds of thousands marching in the streets like in France, that shouldn't stop equality. France has a majority that supports same sex marriage... I'm not concerned about backlash... really I'm not. But I am not going to get my hopes about the SCOTUS.

[Ninja108]

The only reason I could see a broader ruling is because there will be more lawsuits against state's marriage laws and the Supreme Court knows it.

[loki81]

if I were a betting man, I'd say Prop 8 gets upheld and DOMA stricken down.

[GiancarloC]

Well that would be horrible for California. I sure hope its get stricken down.

[loki81]

Well that would be horrible for California. I sure hope its get stricken down.

I agree and hope the same.

but I could see the current Supreme Court turning this into a states rights issue (ruling that the Federal government doesn't have the authority to define marriage, but states do)

[JockBoy87]

Well that would be horrible for California. I sure hope its get stricken down.

In that case we would have the organization to get it on the 2014 ballot.

Prop 8 doesn't stand a chance either way, and Brian Brownshirt knows it.

[GiancarloC]

Brian Brownshirt? Huh?

I don't think they'll make this into a states right issue... there are too many federal rights and entitlements tied to marriage for it to be a state rights issue.

[bankside]

What would stop a state from reinstating the provision in its own constitution that a black person is 3/5ths of a human for government purposes?

[JockBoy87]

Brian Brownshirt? Huh?

I don't think they'll make this into a states right issue... there are too many federal rights and entitlements tied to marriage for it to be a state rights issue.

Federal rights of marriage are only persuasive when scrutinizing the right to get a state license, because federal rights statutes are not mandatory authority. DOMA and Prop 8 are separate issues that are being reviewed side by side under the Constitution, not one over each other.

What would stop a state from reinstating the provision in its own constitution that a black person is 3/5ths of a human for government purposes?

A state can pass any language it wants to. The 14th Amendment would make it unenforceable though.

[GiancarloC]

I never said they were being considered one over the other. But I don't see a split happening here, it's either both being repealed, or none.

[loki81]

What would stop a state from reinstating the provision in its own constitution that a black person is 3/5ths of a human for government purposes?

er, who would even benefit from that? it would destroy southern states congressional representation. (one of the great misconceptions of the three-fifths compromise... abolitionists didn't want to count slaves at all, while southerns wanted to count them as individuals to boost their power in Congress)

in any event, slavery is illegal so that could never happen (Article 1, Section 2, Paragraph 3 defines them as slaves, not "black people")

[bankside]

A state can pass any language it wants to. The 14th Amendment would make it unenforceable though.

Ahh! Excellent. Thank you for that. This is where I was trying to go the other day corresponding with you about how this could play out. It's been a long time since my US Government class.

Okay, so Equal Protection Clause - that really does limit what a state can declare to be "constitutional" within the provisions of its own constitution" Or at least what it can make operative.

If that is the case, then equal marriage really can't be subject to different interpretations of "what is a right?" from one state to another; the Supreme Court will have to find whether marriage is a right under the national constitution, and thus whether each state will have to implement it pursuant to the Equal Protection Clause. I don't think it matters that marriage is performed under state jurisdiction when the issue gets raised to the level of "rights" because then equality matters.

The other day I was arguing that if homophobic states had just had the good sense to shut up and make their arguments about procedure, they might have been able to withstand a challenge. But by naming marriage as a right to which gay people are not entitled, they open themselves to Equal Protection arguments, which I think are likely to be the strongest arguments against their position.

[RazorzEdge88]

er, who would even benefit from that? it would destroy southern states congressional representation. (one of the great misconceptions of the three-fifths compromise... abolitionists didn't want to count slaves at all, while southerns wanted to count them as individuals to boost their power in Congress)

in any event, slavery is illegal so that could never happen (Article 1, Section 2, Paragraph 3 defines them as slaves, not "black people")

That has more to do with the equal protection clause than slavery itself, which is what the Supreme Court would be flouting if you're right about their upcoming ruling.

[JockBoy87]

I never said they were being considered one over the other. But I don't see a split happening here, it's either both being repealed, or none.

I agree. Constitutional equality is too obvious. Neither the federal government nor states may discriminate based on sexual orientation.

Although, a ruling on states' rights will not depend on whether couples can get federal benefits.

[bankside]

er, who would even benefit from that? it would destroy southern states congressional representation. (one of the great misconceptions of the three-fifths compromise... abolitionists didn't want to count slaves at all, while southerns wanted to count them as individuals to boost their power in Congress)

in any event, slavery is illegal so that could never happen (Article 1, Section 2, Paragraph 3 defines them as slaves, not "black people")

I don' think anyone would, either for ruthless political interests or for any other reason. I just wanted to pick a horrifying outcome in law to understand whether states had sufficient sovereignty to bring it about for all purposes of law within that state, if they were so inclined. They cannot. I think that is useful to know for our own legal fight.

[JockBoy87]

Ahh! Excellent. Thank you for that. This is where I was trying to go the other day corresponding with you about how this could play out. It's been a long time since my US Government class.

Okay, so Equal Protection Clause - that really does limit what a state can declare to be "constitutional" within the provisions of its own constitution" Or at least what it can make operative.

If that is the case, then equal marriage really can't be subject to different interpretations of "what is a right?" from one state to another; the Supreme Court will have to find whether marriage is a right under the national constitution, and thus whether each state will have to implement it pursuant to the Equal Protection Clause. I don't think it matters that marriage is performed under state jurisdiction when the issue gets raised to the level of "rights" because then equality matters.

The other day I was arguing that if homophobic states had just had the good sense to shut up and make their arguments about procedure, they might have been able to withstand a challenge. But by naming marriage as a right to which gay people are not entitled, they open themselves to Equal Protection arguments, which I think are likely to be the strongest arguments against their position.

Okay hold on, I think you are confusing the jurisdiction of state and federal constitutions, and the concept of federal question.

State courts get to decide what is permissible under their own constitutions, and no federal court can decide otherwise, because it is not federal question unless it violates the US Constitution. How this applies is that states are allowed to decide which marriage laws are constitutional under its own constitution, until the federal courts intervene under the federal one.

Still, an unconstitutional state's decision remains relevant within state common law. In fact, if a federal decision is later overturned, then the state's formerly unconstitutional decision is reactivated. We could actually see this happen in Alaska, if its constitutional amendment is overturned, because that would reactivate a dormant state court case that became moot in 1998.

A matter of nuance that can complicate things, some state courts do decide matters of federal question, as Minnesota did in 1971, and in that case the federal courts may want to intervene and make an even standard.

[opinterph]

Neither the federal government nor states may discriminate based on sexual orientation.

Can you explain the context/meaning of this statement in a little more detail?

[JockBoy87]

Can you explain the context/meaning of this statement in a little more detail?

In addition to the obvious equality and due process protections in the US Constitution, the idea of heightened scrutiny, used to protect classes with a history of persecution, which hopefully will be established in these two cases, means that the government must have a better reason than a simply plausible explanation for a discriminatory law that targets gays and lesbians.

[opinterph]

In addition to the obvious equality and due process protections in the US Constitution, the idea of heightened scrutiny, used to protect classes with a history of persecution, which hopefully will be established in these two cases, means that the government must have a better reason than a simply plausible explanation for a discriminatory law that targets gays and lesbians.

So you are speculating that the Court will apply heightened scrutiny in this week's cases and that will limit discrimination by the federal government or states by subjecting new laws to the test of heightened scrutiny?

[maxpowr9]

I agree. Constitutional equality is too obvious. Neither the federal government nor states may discriminate based on sexual orientation.

Although, a ruling on states' rights will not depend on whether couples can get federal benefits.

That's the real kicker to that and it would fuck up the tax code completely if they made DOMA a "state's rights issue". I think that is something the court has to take into consideration. That's kind of why it's an "all-or-nothing" situation for DOMA but Prop 8 could just as easily be upheld.

[bankside]

Okay hold on, I think you are confusing the jurisdiction of state and federal constitutions, and the concept of federal question.

State courts get to decide what is permissible under their own constitutions, and no federal court can decide otherwise, because it is not federal question unless it violates the US Constitution. How this applies is that states are allowed to decide which marriage laws are constitutional under its own constitution, until the federal courts intervene under the federal one.

Still, an unconstitutional state's decision remains relevant within state common law. In fact, if a federal decision is later overturned, then the state's formerly unconstitutional decision is reactivated. We could actually see this happen in Alaska, if its constitutional amendment is overturned, because that would reactivate a dormant state court case that became moot in 1998.

A matter of nuance that can complicate things, some state courts do decide matters of federal question, as Minnesota did in 1971, and in that case the federal courts may want to intervene and make an even standard.

I think I follow all that but the part I'm emphasizing is the "unless it violates the US Constitution" bit. I don't see how a state law, or provision of any state constitution, that makes marriage unequal can be found to be compliant with the US Constitution.

I mean I'm almost not even saying anything novel here. It is obvious the US Supreme Court has standing to review whether California has made an acceptable amendment to its state constitution; it did not say "Sorry; this matter concerns Californians and therefore we say nothing."

SCOTUS has the authority to determine whether California's constitutional provisions are permissible, and it will use the US Constitution as its measuring stick. I don't see how it can avoid measuring Proposition 8 against the Equal Protection Clause; if so Prop 8 is doomed.

[bankside]

Once SCOTUS makes a determination that California's constitution fails by the standard of the Equal Protection Clause, they're also making a statement about the meaning of the Equal Protection Clause which will be applicable to all states and the national government. If the US Constitution obliges California to provide equal marriage then it obliges everyone.

That's how an "expansive" ruling would work, is it not?

[JockBoy87]

So you are speculating that the Court will apply heightened scrutiny in this week's cases and that will limit discrimination by the federal government or states by subjecting new laws to the test of heightened scrutiny?

I am hoping at the very least that heightened scrutiny disarms all state constitutional amendments.