As the end of the Supreme Court term and the release of its final opinions gets closer, more legal experts are weighing in with predictions and thoughts on which outcome in the marriage cases seems the most likely. As EqualityOnTrial has reported, there are lots of complicated options with different outcomes (ranging from good to relatively bad) and just looking at Hollingsworth v. Perry, the Prop 8 case, there’s no consensus on what will happen, though most people who have commented on the case believe the result will be narrow.
Two others recently offered their own thoughts and predictions: Laurence Tribe, who has done LGBT rights work before (most notably arguing before the Supreme Court in Bowers v. Hardwick, but also arguing National Gay Task Force v. Board of Education a year prior to Bowers) wrote commentary on the cases, while former Justice John Paul Stevens made his predictions while speaking at an event in Arlington.
Tribe, a Harvard Law professor, believes the decisions in both the Prop 8 and DOMA cases will be narrow, but he suggested that the result of the Court’s decisions would be that neither law will remain standing.
Expectations are high as the wait continues for two decisions expected in June on marriage cases before the U.S. Supreme Court, just as they were 10 years ago when gay rights supporters awaited what amounted to landmark rulings in two other cases.
In 2003, two cases reshaped the landscape for gay rights: the U.S. Supreme Court decision in Lawrence v. Texas, which struck down state sodomy laws throughout the country, and the Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, which for the first time led to the legalization of marriage equality in a U.S. jurisdiction.
The two cases currently before the court — Hollingsworth v. Perry, which aims to strike down California’s Proposition 8, and United States v. Windsor, which is challenging the Defense of Marriage Act — are different in many respects from the cases 10 years ago. Lawrence was related to sodomy laws and Goodridge was a state lawsuit that resulted in a change only in Massachusetts. Still, they’re similar in terms of their potential significance.
The U.S. Supreme Court fight over California’s Proposition 8, viewed by gay-rights advocates as a historic opportunity to establish same-sex marriage nationwide, may not even settle the issue in the state.
The justices, who probably will rule next month, signaled during the March 26 argument that they might sidestep the underlying constitutional questions and decide that the defenders of the 2008 gay-marriage ban lacked “standing,” or legal eligibility, to bring the case. That could leave the status of gay marriage in California in doubt, spawn new litigation and perhaps even prompt another ballot initiative.
A standing ruling might mean “a quick death for Prop 8,” said Vikram Amar, a constitutional law professor at the University of California Davis School of Law. “But it’s also quite possible — maybe more likely — that it will take some time before we know which couples, beyond the two couples who sued, would be able to get their licenses.”
The US Supreme Court will rule on the Prop 8 case sometime between now and the start of July. AFER has a flow chart of how the decision might go:
The Supreme Court is expected to rule by the end of its term in June on whether Proposition 8, California’s ban on marriage for gay and lesbian couples, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Here’s what could happen:
The United States Conference of Catholic Bishops wants Catholics across the country to pray to God to let them continue discriminating. SDGLN reports:
Proposition 8, the 2008 California referendum defining marriage as a union of a man and a woman, “was challenged as being unconstitutional and is now under review by the U.S. Supreme Court, with a ruling expected in June,” a USCCB flyer notes. “The USCCB urges the Supreme Court to uphold Proposition 8. A negative ruling could mean that marriage would be redefined nationwide.” The bishops’ conference has asked Catholics to fast and abstain from meat on all Fridays until the conclusion of the Year of Faith.
As we mentioned yesterday, 62% of rank and file Catholics in the US support marriage equality.
Supreme Court Oral Arguments to Defeat Prop 8 and DOMA, March 26-27, 2013
At the Martin Luther King Jr. memorial, there is a granite wall with some of his inspiring statements. After two days of oral arguments at the Supreme Court alongside two days of communing with fellow equality supporters at the steps of the Court, tears welled up in my eyes as I read:
On that final day, I also paid a visit to the White House where I stood for a long time with my sign to thank President Obama. I carried that sign at our local LGBT Pride march last May when the President said he was “evolving” on his views of marriage equality.
Each day, I arrived at 6:30am with my signs to stand with fellow supporters. Members of the press were intrigued by my signs and my work as a Massachusetts Justice of the Peace, and it was touching how gently they approached me and other activists as they participated in the profundity of the moment.
I ran into Rea Carey, one of the most prominent leaders of our movement. She is the executive director of the National Gay and Lesbian Task Force. For the events, she opted not to speak and to simply be amongst us as the spotlight belonged to couples, families, faith leaders and others. We had met at the NGLTF annual conference in 2012, and we connected immediately, so running into her was like seeing an old friend.
As plaintiffs and participants and attorneys walked in and out of the Supreme Courthouse, we cheered and watched and celebrated our communities.
What an incredible honor to be present for these landmark cases! The oral arguments took place in the morning, so each day I had time to wander about in DC. I wore my red t-shirt that proclaimed that it is time for marriage equality. It also happened to be spring break week for public schools, so many families were in town for vacation.
An unexpected side effect happened over and over again during those two days. Average-looking mothers and fathers approached me and asked, “How did it go today?” They explained to their children that this was a momentous week to be in our nation’s Capital to fight for civil rights. I was in awe.
At Union Station the morning after oral arguments, I noticed a large contingent of young high schoolers. Their teachers told me they came from Hartford, CT and that many of these kids had never left the city or state before this trip. They were mostly African-American kids from impoverished families. Money was raised for the trip. The teachers took them to Howard University and monuments and museums. When I explained my reason for being there, the two teachers told me that they brought the kids to the Supreme Court even though it was not on their original agenda. They did not want them to miss history in the making and a fight for justice and equality. My eyes welled up.
When we hear that the tide is turning in our favor on the media, we hear from politicians and other famous people who have come forward to support full equality for lesbians and gay men. This is merely a reflection of what is happening on a deeper level: average people of all ages and backgrounds understand this as an issue of fairness.
Contemporary times are difficult on many levels. Love is no small thing. Allies are everything.
J.M. Sorrell is a 52 year old lesbian, Justice of the Peace, Massachusetts resident and global citizen.
More Prop 8 / Defense of Marriage Act news and analysis.
First off, at the Washington Blade, Jon Davidson, Legal Director at Lambda Legal, draws three lessons from the Supreme Court hearings:
First: We’ve come a very long way in a very short period of time. The Prop 8 argument took place exactly 10 years after arguments were heard in Lambda Legal’s Lawrence v. Texas case, which held the country’s remaining state sodomy laws unconstitutional. In 10 short years, we have moved from having 13 states that criminalized our sexual intimacy and none that provided our relationships any form of legal recognition to now having nine states and the District Columbia that allow same-sex couples to marry and nine more that provide same-sex couples virtually all the state law rights and responsibilities of marriage.
Second: This particular fight is not yet over. Notwithstanding Time magazine’s recent cover proclaiming “Gay Marriage Already Won,” at least with respect to these lawsuits, the arguments made clear that some justices whose votes are likely to be critical have not fully made up their minds.
Finally: Even a sweeping victory in these cases will not end our work. While ending bans on same-sex couples marrying has been an important goal for the movement, we need to continue fighting for the full civil rights of all people, married or not, as well as for the rights of transgender people, people living with HIV, LGBT parents and workers, those who are incarcerated or poor and our youth and elders.
Click the link above for the details.
Next, The Washington Blade reports on the flap HRC finds itself in after reportedly telling someone holding a transgender flag to put it down at the Supreme Court Rally:
LGBT rights advocates have criticized the Human Rights Campaign after a staffer reportedly asked a man not to waive a transgender flag during a pro-gay marriage rally outside the U.S. Supreme Court on March 27. Former National Stonewall Democrats Executive Director Jerame Davis wrote on Bilerico that he witnessed an HRC staffer and another person “having a less-than-friendly discussion.” Jerssay Arredondo of United We Dream’s Queer Undocumented Immigrant Project also claimed the organization removed references to his immigration status from the speech he gave at the same rally.
HRC has since apologized. At the vigil we attended in San Francisco, the transgender community was openly welcomed and praised for everything they’ve done for the movement, from Stonewall to today.
The Blade also talks about a forum on the hearings to be held in DC this month:
Former Acting U.S. Solicitor General Walter Dellinger and nationally recognized LGBT rights attorney Paul M. Smith are scheduled to speak at a forum in D.C. on April 15 titled, “After the Arguments: DOMA and Prop 8.” The D.C. chapter of the National Lesbian and Gay Journalists Association and the Human Rights Campaign are hosting the event, which will take place from 8 a.m. to 10 a.m. at the HRC building at 1640 Rhode Island Ave., N.W. Commentator Jonathan Capehart of the Washington Post, who’s gay, will serve as moderator.
And finally, also at the Blade, Chris Johnson speculates on how each of the Justices might rule individually:
In addition to examining their comments during the arguments, the Blade has looked at how they ruled in other high-profile gay rights cases. One is the 1996 case of Romer v. Evans in which the Supreme Court struck down Colorado’s Amendment 2, which would have prohibited municipalities from passing non-discrimination ordinances protecting LGBT people. Another is the 2003 case of Lawrence v. Texas in which the Supreme Court struck down state sodomy laws. The Blade also looked at the court ruling in the 2010 case of Christian Legal Society v. Martinez. In that case, the court upheld the Hastings College of Law’s non-discrimination policy against a challenge from Hastings Christian Fellowship, which sought to overturn the policy to maintain its status as an official school group while prohibiting LGBT people from holding positions as officers.
Lisa Keen at Keen News Service focuses on Kennedy’s questions:
In the Proposition 8 argument, Kennedy asked three questions concerning legal standing and five concerning constitutional issues. On legal standing, he sent mixed signals. He expressed discomfort with the idea that the governor or attorney general of California could seemingly “thwart the initiative process” by refusing to defend a voter-approved initiative all the way through the appellate process. He also rebuffed a statement by Chief Justice John Roberts–who said a state “can’t authorize anyone” to press an appeal. Kennedy said the Yes on 8 proponents were “different from saying any citizen.” Those two points seemed to support allowing Yes on 8 standing to appeal. And yet, he acknowledged there is a “substantial question on standing.”
So what happens if the case is decided on a technicality? keen notes:
If the court finds a problem with legal standing or jurisdiction on either of these cases, it will likely issue that decision in the near future. Discussions of legal standing do not generally require a great deal of rumination. If it decides on the merits, the decision or decisions will most likely come out–as they have with past major gay-related opinions–in the final week of the session–the last week in June.
Interesting. So there’s at least a small possibility that we might have a decision in these cases before June.
In a new video, AFER goes behind the scenes on the Prop 8 lawsuit to bring marriage equality back to California. Towleroad.com reports:
The American Foundation for Equal Rights has released a poignant behind-the-scenes video about the days before and after the Supreme Court’s hearing on the Prop 8 case. Among those interviewed in this clip are of the several plaintiffs and their families, David Boies, Cleve Jones as well as Dustin Lance Black, who ends the video with the following quote: “We’re not done in this movement for LGBT equality. Next is, let’s get back to work and keep fighting to make sure the next generation’s lives are better than ours.”
Yes, more prop 8 / Defense of Marriage Act news. One of these days things will quiet down a bit. But for now, did you know that today was the day when the Supreme Court justices were to vote on the outcomes in the two cases? SDGLN reports:
Today, the nine justices of the U.S. Supreme Court will vote in private on two momentous cases involving gay rights. These nine people hold our futures in their hands and they have the power to right the terrible wrongs of two centuries of discrimination against LGBT Americans. Today, the justices will vote on the Proposition 8 appeal… Today, the justices will also vote on the Defense of Marriage Act (DOMA). At Wednesday’s oral hearings, the justices seem to indicate that there are at least five votes in favor of striking down the discriminatory law that prohibits legally married gay and lesbian couples from more than 1,200 benefits that are afforded to legally married straight couples.
At the Chicago Tribune, Bill Press accuses the Supremes of waffling on Prop 8 and marriage equality:
How disappointing, then, to see nine Supreme Court justices waffle on the issue. Sure, they were uniformly strong in questioning the constitutionality of the Defense of Marriage Act, or DOMA, signed into law by President Bill Clinton in 1996. But that’s easy… It was on the second marriage equality case before them, California’s Proposition 8, that the justices signaled a lack of moral courage. In their oral arguments, rather than focus on the merits of the issue before them, six justices spent most of their time complaining about why the case was before them at all. Why do we have to deal with this issue now? What’s the rush? After all, cried Justice Alito, gay marriage is “newer than cellphones or the Internet.” Oh, stop whining and do your job.
Business Week looks at Justice Ginsberg’s role in the hearings:
Justice Ruth Bader Ginsburg is sometimes barely audible when she speaks at the U.S. Supreme Court. That doesn’t mean she isn’t heard loud and clear… Ginsburg delivered one of the most memorable lines of the two days of arguments when she said yesterday that a federal law limiting benefits to married gay couples would create “two kinds of marriage — the full marriage, and then this sort of skim-milk marriage.”… “It is clear that she is respected and even somewhat feared by her adversaries on the bench,” said Garrett Epps, a University of Baltimore law professor who attended the argument.
Equality on Trial looks at another Justice – Justice Alito – and wonders if he could be the sixth vote for repealing DOMA despite his conservative pedigree:
My read of this question is that it’s as if he’s asking whether it’s even rational for Congress to define marriage as such, instead of creating benefits under a (nondiscriminatory) label unrelated to marriage, and using whatever definition it chooses, because avoiding defining marriage when states could and are changing the definition now, may make more sense. It could be that he was just asking a question that another Justice had, as a way to get a definite response to someone else’s worry, but in light of the rest of his questions during the argument, it came off as more skeptical of defining marriage in the way that DOMA does, across so many statutes.
At The Washington Blade, Chris Johnson reviews the U.S. solicitor general’s performance at the hearings:
Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender and Sexuality Law, said she was “uncomfortable” with Verrilli’s assertion that states may have justification to ban couples from marrying. “He seemed to suggest that they might actually have a legitimate reason for maintaining the exclusion, and that did not seem necessary to me, given the arguments that he was making,” Goldberg said. “It did not feel right for the government’s attorney to suggest that their might actually be a plausible reason for a state to exclude same-sex couples from marriage.”
Who decided to take the cases in the first place? The New York Times thinks they have the answer:
As it turns out, it would seem that the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject. The aha moment came on Tuesday. After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand. “It’s too late for that now, isn’t it?” he said, a note of glee in his voice. “We have crossed that river,” he said. That was a signal that it was a conservative grant.
Dot429 speculates what the repeal of the Defense of Marriage Act would mean. For example:
Another issue is inheritance; in states without any kind of legal recognition for them, a domestic partner only gets what their late partner’s will grants them–which can mean nothing, if there is none. A change in federal law could result in inheritance equality, with or without marriage equality; a surviving partner could potentially inherit like any other spouse, automatically upon the death of the other and no taxes owed.
On Tuesday, March 26, I preached at the annual Chrism Mass for the clergy of the Episcopal Diocese of California. The appointed text was from Luke’s gospel and deals with the need for repentance. In this sermon, I challenge the notion that the text was a call to individual repentance and instead suggested that in it my brother Jesus calls for group repentance. At the conclusion of this mass, I blessed oils that will be used in congregations throughout the Bay Area for healing… Overturning Proposition 8 and DOMA would provide a beginning for the United States and California to repent for the collective harm that has been done to LGBT people legally; the harms of which have in turn led to violence in a multitude of forms.
Queerty thinks that the Supreme Court overturning DOMA won’t help republicans all that much:
But if the Supreme Court decides to take the weasel road by striking down DOMA and leaving marriage up to the states, the GOP may have the worst of all possible worlds. Here’s why: Statewide ballot measures to approve marriage equality will multiply, which means the religious right will be out in force. If the party is wishy washy, they’ll be very angry, which will affect turnout for other races. If the party forsakes them altogether, there will be a gigantic rift in the party (which is bound to come anyway).
Erin Fuchs at Business insider frets that the two cases could work against one-another:
The tension between the two legal theories was evident when Roberta Kaplan was arguing the case against DOMA for her client, 83-year-old lesbian widow Edith Windsor. Kaplan argued that DOMA violates the Equal Protection Clause of the Constitution, rather than stressing that it infringes on states’ rights under the principles of federalism. Chief Justice John Roberts asked Kaplan whether it would violate states’ rights if the federal government “went the other way” and said gay couples explicitly had the right to marry.
And over at HRC, they’ve posted a couple Best-Of Videos, as Joe.My.God reports.