First off, they’re already lining up outside the Supreme Court to get into the hearings. The Miami Herald reports:
A line has begun forming at the Supreme Court for people who want to attend next week’s arguments in two gay marriage cases. Lines frequently form in advance for the free tickets to high-profile arguments, but five days before a case is particularly early. For last year’s three days of arguments over the Affordable Care Act, the line began about three days early.
Over at SDGLN, they’re talking about Prop 8 and the upcoming Supreme Court hearing:
San Francisco City Attorney Dennis Herrera, who has filed numerous briefs in support of AFER’s case, said he expected the Supreme Court will side with the lower court ruling. “We have confidence of the court knocking down Prop 8,” Herrera said, going so far as thinking the high court will make a 50-state solution on marriage equality. The AFER attorneys talked about the 14th Amendment and the Equal Protection Clause, key arguments they have used in litigating the case. They also addressed the issue of legal standing, which many experts believe gives the justices an escape clause in case they do not want a 50-state solution a la Loving v. Virginia in 1967 that knocked down the law that banned interracial marriage.
Over at GayUSA, our friend Melanie Nathan takes a look at the amicus brief from Howard University and Americans United for Separation of Church and State against Prop 8:
The anti-gay National Organization for Marriage (NOM) says in its talking points against marriage equality that if one of its supporters is asked ” Isn’t the ban on gay marriage like bans on interracial marriage,” then the answer should be: “Bans on interracial marriage were about keeping two races apart so that one race could oppress the other. Marriage is about bringing two sexes together, so that children get the love of their own mom and a dad, and women don’t get stuck with the enormous disadvantages of parenting alone.” “Having a parent of two different races is just not the same as being deprived of your mother–or your father.”
The Washington Blade warns that the Supreme Court could send the Prop 8 case back to the California Supreme Court for another standing ruling:
The California Supreme Court has already certified in November 2011 that anti-gay groups have standing to defend Prop 8 in court. After being posed the question by the U.S. Ninth Circuit Court of Appeals, the state court determined anti-gay groups had standing to defend the ballot initiative in the wake of the decision from California officials — Gov. Jerry Brown and Attorney General Kamala Harris — to decline to defend Prop 8 in court. But in the reply brief this week, proponents of Prop 8 assert that neither the California Supreme Court nor the Ninth Circuit addressed the issue of whether anti-gay groups have suffered “personal injury” — a quality that is used to determine standing — and suggest justices may want to return the case to state court to address the issue.
Wich would, of course, delay the ultimate decision.
Over at Towleroad.com, Ari Ezra Walden gives us some tips on what to look for as the Supreme Court discusses the standing issue:
This will be the first question the justices will address on Tuesday. And, they will start from the beginning. They don’t have to agree with the Ninth Circuit. Nor do they have to even agree that the Ninth Circuit went about answering the question the correct way. The Court could say, along the lines of some discussion in a recent Supreme Court case called Arizonans for Official English v. Arizona, that regardless of what state law says, initiative proponents still have to show their own “direct injury.” Notably, an amicus brief submitted by two former Republican Attorneys-General, John Ashcroft and Edwin Meese, argues that the Court could even ask the California Supreme Court about whether ProtectMarriage experienced “direct injury.”
Equality on Trial reports that marriage equality opponents are grasping at straws in their final brief, hoping the Court will leave gay marriage to the political process:
They also attempt to dissuade the Court from considering that laws classifying people on the basis of sexual orientation are “suspect”: Nor is there any basis for this Court to make sexual orientation the first new suspect class in forty years. Treating a group as a suspect class for equal protection purposes is, at bottom, a determination that by dint of a long history of official disenfranchisement or other obstacle, a group cannot protect its interests through the ordinary political processes. But gays and lesbians have made more progress through the ordinary political processes more quickly than any other group in recent memory, both on the issue of marriage and more generally. The impressive array of amici supporting affirmance provides powerful testimony to the political clout of a group that has been remarkably and increasingly successful in accomplishing its goals through the political process.
The New York Times has a profile of NOM’s Brian Brown, the outspoken leader of National Organization for Marriage:
As gay couples fight for the right to wed, a little-known but determined force is working to stop them: Brian S. Brown, a 39-year-old father of eight who has raised millions of dollars from religious conservatives — especially his fellow Roman Catholics — to become the nation’s leading opponent of same-sex marriage. Mr. Brown, president of the nonprofit National Organization for Marriage here, was instrumental in passing Proposition 8, California’s same-sex marriage ban, and is working in a host of states (and recently in France) to defeat gay-friendly candidates and outlaw what he calls “the redefinition of marriage.” Now his views are facing the ultimate American test: a hearing before the Supreme Court, which is considering whether to overturn Proposition 8 and perhaps declare it unconstitutional.
At the Advocate, Kerry Eleveld is wondering if the Justices will take the middle ground in the marriage equality cases:
An intermediate option, applying to nine states, would mirror what was ultimately advanced by the U.S. Solicitor General on the behalf of the Obama administration: that in California and eight other states that already recognize civil unions or domestic partnerships, it’s impossible to argue that government has a legitimate interest in withholding actual marital rights from same-sex couples since it is already granting those rights under a different name. This ruling would likely legalize same-sex marriage in California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
And finally, Zack Ford at Think Progress sees a bigger issue at stake in the hearings:
Next week, the Supreme Court will hear the oral arguments on two legal challenges to laws that limit the government’s recognition of same-sex marriage. While there are various legal nuances to how both the Defense of Marriage Act and Proposition 8 cases might be decided, the Justices will actually be weighing a more fundamental question: Do gay people exist?
At the core of conservatives’ argument against marriage equality in both cases is the idea that gay people actually do not exist — only “homosexual behavior” does. In House Republicans’ final reply brief filed this week against DOMA, attorney Paul Clement argued that “sexual orientation is defined by a tendency to engage in a particular kind of conduct.”
Four more days.