December 6, 2012
By Scottie Thomaston
There were, before last night, already ten petitions in front of the Supreme Court asking them to review several LGBT rights issues. Most dealt with the rights of gay couples who are already married yet still face federal discrimination in the form of the Defense of Marriage Act. One dealt with same-sex domestic partnership benefits and whether it’s constitutional to take those away while leaving in place the ability of opposite-sex couples to have access to those rights (through marriage.) And there is a petition asking the Supreme Court to review the Ninth Circuit’s decision striking down Proposition 8, which relied on the “taking away” of rights after the state acknowledged them.
The Coalition for the Protection of Marriage, a group who sponsored Nevada’s marriage ban and who has intervened in Lambda Legal’s challenge to the ban Sevcik v. Sandoval in its defense, petitioned the Supreme Court to take up the case before judgment at the appeals court (where it was appealed a few days ago.)
The Coalition won its case in district court – the judge upheld the ban. This is the first recent case in which the same-sex plaintiffs lost and the Supreme Court is asked to review their loss.
The petition presents the marriage equality issue squarely in front of the Justices and points out that while some of the other cases before the court are seen as flawed for various reasons – Edith Windsor’s Canadian marriage, the legal standing issues in the Prop 8 case – the Sevcik case is straightforward.
They write that “[w]e do not contend that the Court should grant the Petition in this case to the exclusion of the Petitions in the other marriage cases,” but rather, “[o]ur point is that, whatever happens with the other marriage cases, the Court should grant the Petition in this case because it presents the fundamental marriage issue in the optimal fashion.” And the petitioners suggest that “after 20 years” of debate over same-sex marriage the Court should decide the issue with finality, and they ask the Court to grant their petition before resolution of the others.
The rest of the petition reads like an attempt to defend the institution of heterosexual marriage from any challenge whatsoever. The petitioners warn against radical alterations in the institution of marriage, “[i]n material ways, genderless marriage will be an institution radically different from the man-woman marriage institution” and that the “reality” is that “changing the meaning of marriage to that of “any two persons” will transform the institution profoundly, if not immediately then certainly over time as the new meaning is mandated in texts, in schools, and in many other parts of the public square and voluntarily published by the media and other institutions, with society, especially its children, thereby losing the ability to discern the meanings of the old institution.” They list a variety of claims, that marriage equality will hurt families and erode religious liberties. And these petitioners claim that they will focus on rational defenses of heterosexual marriage that were not relied upon in other cases.
The Court’s conference to decide whether to take up challenges to Section 3 of the Defense of Marriage Act, along with Prop 8 and other issues, is scheduled for tomorrow. It’s unclear whether this additional petition will lead to the Court delaying consideration of the issues yet again. The Court rarely grants petitions for certiorari before judgment and they may simply not be ready to go as far as petitioners want them to go in deciding on marriage equality once and for all.