Archive for Saturday, December 8, 2012

U.S. Supreme Court agrees to hear same-sex marriage cases

December 8, 2012, 1:40 a.m. Updated December 10, 2012, 5:26 p.m.


Washington — The Supreme Court plunged into the contentious issue of gay marriage Friday when it agreed to take up California’s ban on same-sex unions and a separate dispute about federal benefits for legally married gay couples.

The court’s action gives the justices the chance to say by late June whether gay Americans have the same constitutional right to marry as heterosexuals. Several narrower paths also are open to the justices as they consider both California’s voter-approved Proposition 8 and the provision of the federal Defense of Marriage Act that denies to legally married gay Americans the favorable federal tax treatment and a range of federal health and pension benefits given to heterosexual couples.

The court is embarked on what could be its most significant term involving civil rights in decades. In the area of racial discrimination, the justices already have agreed to decide cases on affirmative action in admission to college and a key part of the Voting Rights Act. The gay marriage cases probably will be argued in March and decisions in all the court’s cases are likely by the end of June.

The order from the court extends a dizzying pace of change regarding gay marriage that includes rapid shifts in public opinion, President Barack Obama’s endorsement in May and votes in Maine, Maryland and Washington in November to allow gay couples to marry. Same-sex couples in Washington began picking up marriage licenses on Thursday.

Yet even as gay marriage is legal, or soon will be, in nine states — Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont are the others — and the District of Columbia, it is banned by the state constitutions of 31 others. Federal courts in California have struck down the state’s constitutional ban on same-sex marriage, but that ruling and thus gay unions remain on hold while the issue is being appealed.

The high court’s decision to hear the federal benefit question was a virtual certainty because several lower courts struck down the provision of the 1996 law and the justices almost always step in when lower courts invalidate a federal law.

There is nothing that compelled a similar response from the court in the case over California’s Proposition 8, the state constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. Indeed, the gay marriage supporters who prevailed in the lower courts urged the Supreme Court to stay out of the case and allow same-sex unions to resume in the nation's most populous state.

Even some gay rights activists worried that it was too soon in the evolution of views toward same-sex marriage to ask the justices to intervene and declare that same-sex couples have the same right to marry as heterosexuals. But Theodore Olson, the Washington lawyer who represents Californians who sued over Proposition 8, said he will argue that there is a “fundamental constitutional right to marry for all citizens.”

Opponents of gay marriage said Friday they are heartened by the Supreme Court’s action.

“We believe that it is significant that the Supreme Court has taken the Prop 8 case. We believe it is a strong signal that the court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect,” said John Eastman, chairman of the National Organization for Marriage and a law professor at Chapman University in Orange, Calif.

On the other side of the issue, advocates for same-sex unions said the court could easily decide in favor of gay marriage in California without issuing a sweeping national ruling to overturn every state prohibition on marriage.

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 overarching pronouncements.

“I think the court can easily affirm the 9th Circuit’s decision and leave for a later day whether broader bans on marriage are unconstitutional as well,” said James Esseks of the American Civil Liberties Union.

The other issue the high court will take on involves a provision of the Defense of Marriage Act, known by its acronym DOMA, which defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.

Four federal district courts and two appeals courts struck down the provision. Last year, the Obama administration abandoned its defense of the law, but continues to enforce it. House Republicans are now defending DOMA in the courts.

The justices chose for their review the case of 83-year-old Edith Windsor, who sued to challenge a $363,000 federal estate tax bill after her partner of 44 years died in 2009.

Windsor, who goes by Edie, married Thea Spyer in 2007 after doctors told them that Spyer would not live much longer. She suffered from multiple sclerosis for many years. Spyer left everything she had to Windsor.

There is no dispute that if Windsor had been married to a man, her estate tax bill would have been zero.

The U.S. 2nd Circuit Court of Appeals in New York agreed with a district judge that the provision of DOMA deprived Windsor of the constitutional guarantee of equal protection of the law.

In both cases, the justices have given themselves a technical way out, involving the legal issue of whether the parties have the required legal standing to bring their challenges, which would allow them to duck all the significant issues raised by opponents and supporters of gay marriage.

An earlier version of this story incorrectly identified California as the nation's largest state, rather than its most populous state.


Maddy Griffin 5 years, 6 months ago

Hopefully, Prop 8 and DOMA will both be history.

Fred Whitehead Jr. 5 years, 6 months ago

But even if the court reles against the discriminatory laws, there will be a legion of religious nutcases who will fight tooth and nail to preserve their paranoia and prejudice.

jhawkinsf 5 years, 6 months ago

So let me get this straight, if a heterosexual couple gets married in the state of Massachusetts and then moves to Kansas, they are still married, but if a gay couple does the same thing, they are not. But all other agreements amongst the states still apply. Extradition requests are honored, all states honor the driver's licenses of all the other states. Everything is honored amongst the states, except this one issue. That's Constitutional? I think not. DOMA is DOOMED.

Brock Masters 5 years, 6 months ago

You would think it would be, but with a SCOTUS that can turn a fine into a tax, you just never know how they will rule.

And, if the ACA ruling is any indication of how this court will rule, they might try to split the baby in half to make both sides happy - you know, it is not a fine, but a tax and the states don't have to expand medicaid.

jafs 5 years, 6 months ago

I think that's what they'll do - strike down DOMA, saying that the feds can't refuse to acknowledge marriages that are valid in states, but also allow the states to decide who gets married and who doesn't.

jhawkinsf 5 years, 6 months ago

That's exactly what they should do. States have always had the power to decide who should and who should not get married.

That said, it has long been the policy of the Supreme Court to rule on the narrowest of points of law. It would not surprise me at all if this Supreme Court ruled that some narrow point is illegal, followed by another narrow interpretation in a few years, followed by another some years more. Broad, sweeping changes do happen, sometimes. But not that often.

jafs 5 years, 6 months ago

Except that in Loving vs. Virginia, the Court found marriage to be a "fundamental" right and disallowed the practice of states forbidding interracial marriage, without which states could still do that.

Should states really be able to decide who gets married? Why, if marriage is a fundamental right?

What if they don't like age differences between couples, or height differences, or non smokers marrying smokers, etc.?

jhawkinsf 5 years, 6 months ago

Or what about if a 40 year old male wants to marry a 12 year old girl? That might make some uncomfortable so how about if two 14 year olds wish to marry? Surely the state might have some interest. Is there a compelling interest in disallowing plural marriage? Or here's the really big question, does the Federal government have a compelling interest in intervening into matters that have been left to the states to decide? Should the Supreme Court be injecting itself into matters that the Kansas legislature should be deciding? And Missouri, and Nebraska, and Oklahoma?

This is where it gets tricky and this is why I think the SC will decide this case piecemeal. If 45 states allowed gay marriage and only 5 didn't, that wouldn't be true.

What are there, 10 states now that allow gay marriage? If in ten years that number is 18, and ten years more that number rises to 26 and then to 32, the courts will take note. If, however, the number remains stagnant, or is lowered for whatever reason, the courts will take note of that as well. I'm not saying I necessarily agree on this issue. I'd like to see a sweeping decision. But that's not usually how it works. That's why affirmative action cases, civil rights cases, abortion cases keep going back to the court for review. They keep tweaking the system. Even freedom of the press cases, freedom of speech, freedom of religion cases keep getting heard. I suspect gay marriage and gay rights cases will be heard over and over again.

jafs 5 years, 6 months ago

Consenting adults solves all of those issues - obviously that's part of my understanding of these things.

If marriage is a fundamental right, as was found in Loving vs. Virginia, then it's not up to the states to decide who can marry (consenting adults).

Before that decision, states were free to deny interracial couples the right to marry, but after that they were not. The idea that things have been left to the states, and so should continue that way is a funny one, and fails to take into account the SC, and our system of guaranteed rights for all citizens.

If you're right about the Court taking into account "public opinion", then that's a serious problem. They're not supposed to do that, they're supposed to rule on constitutional issues.

jhawkinsf 5 years, 6 months ago

If you believe that the Constitution is a living, breathing document, as I do, then things like public opinion should be taken into account. (By public opinion, of course, I assume we're talking about our legislatures, elected by the public). Let me give you an example, capital punishment of those under the age of 18. it was legal for many years. Slowly, though, that changed. State after state outlawed that practice. Eventually, the Supreme Court took note and outlawed the practice.

This despite the fact that every state has the right to make it's own determination about sentencing of felons, including capital punishment.

States can and should retain "some" input on who can and who cannot get married. The reason I put "some" in parenthesis is because exactly what that means may be ruled upon by the courts. But, yes, they should retain "some" control.

jafs 5 years, 6 months ago

It's not a living breathing document - documents don't live or breathe.

And, the SC exists to ensure constitutionality, not to bow to public opinion.


jhawkinsf 5 years, 6 months ago

Oh, jafs, you're really not using your imagination. Of course it lives. Sometimes it shouts at us while at other times it whispers in our ear. It speaks to us all the time. It speaks to us all, not just to those nine. And yes, it listens to us as well. It's like a marriage, we love her most of the time, want to kill her occasionally, but we're tied to each other 'til death do us part. It's a partnership.

Paul R Getto 5 years, 6 months ago

It lives through amendments. If it did not. We would still have slavery and women could not vote.

jafs 5 years, 6 months ago

It doesn't "live" at all.

We can change it through amending it, of course.

beatrice 5 years, 6 months ago

The federal estate tax issue demonstrates why this isn't just a states rights matter.

fiddleback 5 years, 6 months ago

That's some mighty fine trollin', oletimer!

Yeeep, sure was nice back before them queer folk got so uppity, and even better before that when all the women folk and negroes knew their proper place...

It's like my plantation-owning great great great granpappy used to say -- "If it ain't broke, don't fix it!"

If you're headed out tonight, don't forget your hood...

Glenn Reed 5 years, 6 months ago

AGREE WITH THIS MAN! He speaks the truth! Turning you backs on God's word is surely what will cause our great nation to fall!

Judges 21:19-24

Deuteronomy 22:28–29

Genesis 19:30-36

scarlett 5 years, 6 months ago

Religion has no place in legal matters including whether gays have the same rights as heterosexuals. They do and I wish the religious fanatics would keep their unchristian complaints to themselves. You are an embarrassment and you really need to get a grip.

Glenn Reed 5 years, 6 months ago

Did you follow up on the bible verses I referenced? I was intending for them to sound... crazy. Y'know, unbelievably so, as if I was mocking LG40's comment. I think if one relies on the old "bible said this right here" argument in public, they should be prepared to publicly explain or embrace the bad parts of it.

So... did you miss something? Or did I?

Alyosha 5 years, 6 months ago

Prove that it's God's word and we might have the ability to have a reasonable discussion.

Your assertion that it is "God's word," without proof and evidence, is meaningless.

Glenn Reed 5 years, 6 months ago

Apparently Scarlett's not the only one that can't detect sarcasm, or use google.

The Judges reference details a situation where it's (apparently) okay to kidnap and force into marriage women of a neighboring community.

The Deuteronomy reference is the spot where a rape victim is forced to marry her rapist.

The Genesis reference is where Lot knocked up is daughters.

Poe's law is a pain.

In_God_we_trust 5 years, 6 months ago

Romans 6:16-23 "Know you not, that to whom you yield yourselves servants to obey, his servants you are to whom you obey; whether of sin unto death, or of obedience unto righteousness?
But God be thanked, that you were the servants of sin, but you have obeyed from the heart, that form of doctrine which was delivered to you. Being made free from sin, you became the servants of righteousness. I speak in terms easy to understand, because of the weakness of your flesh: for as you have yielded your bodies servants to uncleanness and to iniquity unto iniquity; even so now yield your bodies servants to righteousness unto holiness (pureness). For when you were the servants of sin, you were free from righteousness. What good thing had you then in those things whereof you are now ashamed? For the end result of those things is death. But now being made free from sin, and become servants to God, you have your fruit unto holiness, and the end result of everlasting life. For the wages of sin is death; but the gift of God is eternal life through Jesus Christ our Lord."

Alyosha 5 years, 6 months ago

"Leviticus 18:22 and 20:13 say all that we need to know on this subject" — as far as Judeo-Christian theology goes, sure.

But civic law is not controlled by theology in the United States.

So your comment adds nothing to the discussion of civil rights law in the United States.

Crazy_Larry 5 years, 6 months ago

Which god should we be listening to? We're only doomed if we continue to let the bass ackwards ignoramuses steer the car..."jeeebus, take the wheel!" Break from your slumber, fellow citizens!

deec 5 years, 6 months ago

And everyone old is new again.

Marriage Equality for all!

classclown 5 years, 6 months ago

"Indeed, the gay marriage supporters who prevailed in the lower courts urged the Supreme Court to stay out of the case and allow same-sex unions to resume in the nation’s largest state."


In what world is California the largest state in the nation?

deec 5 years, 6 months ago

And yet another return.,.,.,.

Marriage's a good thing.

classclown 5 years, 6 months ago

There is a difference between being the largest and the most populated deec. Considering that reporters make their living with the written word, then they of all people should get it right.

And don't give me any of that "you know what they mean" crap. If they can't write professionally, then they shouldn't get paid for it.

That's one of my biggest peeves about LJWorld online. Sometimes I feel like the only reason stories have a comment section is so the customers can provide the necessary corrections on all the spelling and grammar errors. As well as to provide facts that tend to be lacking a lot of times.

deec 5 years, 6 months ago

largest population=most populous. I think you are just picking a loose nit. You are assuming largest only applies to geographic area.

Frederic Gutknecht IV 5 years, 6 months ago

Crass clowns become angry about the silliest things!

Alyosha 5 years, 6 months ago

You do realize, Classclown, that the byline for this story is "By Mark Sherman, Associated Press."

Which means that no one from LJWorld online, as you put it, wrote the story.

In case you don't know, the Associated Press provides stories to member organizations, which organizations then run those stories.

One could wonder why a local copy editor (i.e., one who works for the Journal-World) didn't catch the imprecision of "largest state," but your criticism, by not noticing or taking into account that the story was written by an Associated Press staffer, isn't very exact.

One could point out that to err is human — as your comment's lack of precision demonstrates.

So have a little compassion for human foibles, since we are all heir to them, as your comment demonstrates.

flloyd 5 years, 6 months ago

The term "gay marriage" is an oxymoron.

fiddleback 5 years, 6 months ago

Let me guess -- you don't know any homosexuals? Sounds like something Dick Cheney would have muttered before Mary came out...

blindrabbit 5 years, 6 months ago

How the heck did this happen; do you really think the U.S. Supreme Court can be objective in deciding same-sex marriage issues when the religious affiliations are as follows:: Roman Catholics (6) Roberts, Alito, Sotomeyer, Kennedy, Scalia, Thomas Jewish (3) Breyer, Kagan, Ginsburg. Other religions and denominations (0). I am much more confident that the Jewish members can be objective, really question the Catholics, especially Thomas, Alito and Scalia on these issues. Also, all of the justices are law school grads of only the following: Harvard, Yale, and one other.. Hopefully, this will be determined to be a Federal Civil Rights issue and not leave this up to the descrimination and biases of the individual states; if not, talk about a mess.

jhawkinsf 5 years, 6 months ago

Given the six Catholics, you would have expected Roe to have been overturned immediately. Didn't happen. You might have expected the right to birth control to be overturned immediately. Didn't happen. You might have even expected a call from Vatican City telling these justices how to vote. Didn't happen.

The justices on the Supreme Court are deciding cases according to their individual consciences, based on their interpretations of the Constitution. That they happen to be Catholic or Jewish hasn't made any difference, nor do I expect it to in the future.

jhawkinsf 5 years, 6 months ago

The makeup of the court has changed slightly over the years. But in past sessions, there have been opportunities to hear those types of cases and to overturn previous decisions. That hasn't happened. And if this were a group of Catholic activists, as blindrabbit suggests, you could be certain that anti-abortion activists would be working hard to fast track cases so this court could overturn Roe. But that's just not what we're seeing. Rather than Catholic activists, we're seeing Supreme Court justices behaving like Supreme Court justices. That they happen to be 6 Catholics and 3 Jews is beside the point.

jafs 5 years, 6 months ago

Actually, there's some evidence that anti-abortion folks are trying pretty hard to get a case in front of the Court.

Some think that's why they're passing a bunch of restrictive laws, hoping that they'll be challenged, and thus be able to get to the SC, since they think this Court may overturn Roe.

Of course, the recent ACA ruling may throw them a little.

jhawkinsf 5 years, 6 months ago

Anti-abortion activists are always trying to get case before the court. Having lost the biggest battle, they have nothing to lose, really. But are they trying to fast track cases now, specifically because we now have a Catholic activist court? Sorry, I don't see it.

jafs 5 years, 6 months ago

I don't know how they could "fast track" cases.

And, no it's not because it's a "Catholic" court, it's because it's a conservative one, as they perceive it, although as I said, the ACA ruling might make them question that.

lunacydetector 5 years, 6 months ago

i wonder if the obama administration will be pulling whatever they have on john roberts out of the bag, like they did to him on obamacare?

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