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BREAKING: Supreme Court decides to review Prop 8, DOMA cases
December 7, 2012
Marriage equality Prop 8 trial Supreme Court
By Jacob Combs, Scottie Thomaston and Adam Bink
UPDATE 2: Order list here. h/t Kathleen.
UPDATE 1: In Prop 8 case the Court added an additional question: Whether the backers of Prop. 8 have standing in the case under Article III.
In the DOMA cases, the Government’s petition in USA v. Windsor was granted. According to SCOTUSBlog these questions were added:
2d CA [Second Circuit Court of Appeals] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.
Big news: The Supreme Court has just announced in an order that it will take up the Prop 8 and the Defense of Marriage Act cases for further review. The next step in the review process for both cases is a scheduling order, which should come soon, laying out the date for oral arguments at the Supreme Court, although the case will likely not be heard until the spring of 2013. The Court’s term lasts until June, so we should have final news by then on the fate of Proposition 8, the constitutional amendment banning marriage equality in California. This decision means that the Ninth Circuit’s ruling striking down Prop 8 as unconstitutional continues to be stayed, and couples cannot wed in California.
In the cases involving DOMA, which prohibits same-sex couples’ legal marriages from being recognized by the federal government and therefore denies 1,138 federal rights and benefits due to those couples, the Court specifically chose to hear the Windsor challenge, and will likely make no public announcement regarding the other cases until after it rules on DOMA’s constitutionality.
This is a developing story and updates will be included at the top of this post
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
210 Comments Leave a Comment
1.
Anthony | December 7, 2012 at 12:15 pm
Oh. My. God.
2.
_BK_ | December 7, 2012 at 12:18 pm
http://www.scotusblog.com/case-files/cases/hollin…
3.
Jackie | December 7, 2012 at 12:18 pm
I can't believe they're hearing Prop 8.. this is awful news.
4.
Luke | December 7, 2012 at 12:19 pm
It's also really exciting news, Jackie. We could set a precedent nationwide for marriage equality.
5.
_BK_ | December 7, 2012 at 12:19 pm
Wrong link… sorry. But this is incredible! At least we now know what the next few months will have in store: more waiting. But this stage of the game is over! So glad.
6.
Jude | December 7, 2012 at 12:21 pm
I don't know whether to be happy or sad (especially about Prop 8). I wish I understood all this stuff more…. I suppose I'm glad that at least they've decided to do something!
7.
Kelly | December 7, 2012 at 12:21 pm
Justice delayed is justice denied
8.
Brian | December 7, 2012 at 12:22 pm
Bad news.
9.
Zak | December 7, 2012 at 12:22 pm
You can never know their reasoning but it is possible they want to make a broader ruling…at least 4 of them do, and they cannot let the 9th circuit decision stand if they want a broader ruling. For those of us married folks in Tennessee that married in Iowa etc…we would like a broader ruling because currently we're treated as roommates
10.
Anthony | December 7, 2012 at 12:23 pm
Sucks for me in CA, but if it can be legalized everywhere, then I'm all for it.
11.
RepublicanLutz | December 7, 2012 at 12:23 pm
Note that they are also deciding questions related to standing in both cases. For those worried that the Court is not ready to "go there" yet with regard to state bans, that is actually good news as it provides an unsure justice an out.
Personally, I am not going to get all doom and gloom and think of this as bad news. This Court has been willing to issue landmark decisions in many areas and Kennedy has authored several of them.
12.
Luke | December 7, 2012 at 12:24 pm
Better delay only California & win nationwide than delay nationwide for another 5 years.
13.
Seth from Maryland | December 7, 2012 at 12:25 pm
we know from the very start that it may come to this , i have faith in these 2 guys, we been together on here since the day this case went before judge walker and now we are going to DC, stay strong
14.
José Merentes | December 7, 2012 at 12:25 pm
Sad, sad news on Prop 8.
15.
MightyAcorn | December 7, 2012 at 12:25 pm
I had a feeling they'd be interested in ruling on the standing issue. Not that I'm glad…I HATE that we now all have to wait agonizingly long months for a ruling, but I'm glad the merits of my gay friends' civil rights will be heard, and will be argued for by some of the brightest, most compelling legal eagles in the country.
I'm not a praying gal, but I'm sending up every hope I have that AFER will carry the day and move our human and national history forward this year. GO GET 'EM, AFER!!!!
16.
Phillip K | December 7, 2012 at 12:26 pm
Tell that to the couples who are directly involved in the case. :/
I hope it goes nationwide but I can't be the only one who is worried that they decided to take up Prop 8.
17.
Robert West | December 7, 2012 at 12:26 pm
For Prop 8, they granted cert on two questions – the substantive issue and the question of whether the official proponents actually had the legal right to appeal when CA's attorney general refused to.
my read is that the conservatives think they can get kennedy's vote to overturn the ninth circuit, and the liberals are worried enough about this that they pushed for the standing issue under the theory that they can use that to prevent a ruling on the merits.
i'm therefore cautiously pessimistic.
18.
Jon | December 7, 2012 at 12:27 pm
My partner and I need both Prop 8 and DOMA to come out positive for gays. I live in California and he lives in Mexico. All we want is the chance to be together as a couple. We can wait a few more months as we will have the rest of our lives together.
19.
Zak | December 7, 2012 at 12:28 pm
Think of the couples that can't get married in 41 states…or may have moved to a non-marriage equality state (me.) We matter too.
20.
bythesea | December 7, 2012 at 12:30 pm
Sorry I accidently rated you down when I meant thumbs up. Can't seem to change it now.
21.
Keith | December 7, 2012 at 12:31 pm
Regardless of how this turns out, at least we will have, for the first time, the US Supreme Court hear our arguments for full marriage equality. It will make it very difficult for them to deny us such equality, since the arguments on the other side are filled with illogical and non-empiracally defensible suppositions. Keep the hope alive. P.S. This is just an uninformed opinion, but I doubt they'll put full marriage equality upon the nation, but instead will rule that when a right is given such as in the Prop H8 case, that such a right can't just be voted away without a more significant justification than just "ick, we don't like gay people." I don't think Prop H8 will stand, but they will make it legal in California and ensure that no more propositions can be proposed to overturn it. I also think they'll strike down Article 3 of DOMA for those who are already legally married. No rational argument has been made to defend it.
22.
Zak | December 7, 2012 at 12:31 pm
You're fine
I was hoping I wasn't being negative 
23.
Jude | December 7, 2012 at 12:33 pm
And all the bi-national couples waiting for immigration rights…
24.
palerobber | December 7, 2012 at 12:34 pm
SCOTUSblog live blogger says "Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way" — does this mean they're brushing the narrow question ruled on by the 9th aside?
25.
Reformed | December 7, 2012 at 12:34 pm
Maybe they want to strike down prop 8 without setting precendents based solely on how the case was argued. For example, maybe the precedent that you can't withdraw rights has implications for other matters and the court would rather strike down prop 8 based on its own reasoning, whether it be on a narrow basis for California or broad basis affecting everyone. Im my understanding, they would certainly would not issue a ruling that marriage equality itself was unconstitutional, there by negating all of the gains in other states. I think the perception that marriage equality laws are unconsitutional benefits the equality side, If the court upholds Prop 8 or DOMA, then I think the pace that things move in our favor could slow. Afterall, if the supreme court doesnt have a problem with discrimination . . .
So, we know that at least 4 justice voted to hear the case. That simplifies the equation. What does that tell us about how they might rule?
26.
palerobber | December 7, 2012 at 12:35 pm
iow, does this mean they're not going to rule on the CA special case (rights given then taken away)?
27.
paulo Katz | December 7, 2012 at 12:35 pm
Far from being sad news these are amazing news!, stay strong people.
28.
Zak | December 7, 2012 at 12:35 pm
Exactly…letting Prop 8 stand under 9th circuit reasoning would not have granted national marriage rights to same-sex couples…The DOMA case had to happen, but if we get national affirmation of marriage equality DOMA dies and we are in a great new day.
29.
Anne | December 7, 2012 at 12:36 pm
Just donated some money to AFER; I want them to be able to do a fantastic job arguing against prop 8!
30.
Robert | December 7, 2012 at 12:36 pm
I disagree, this is wonderful news. Worse comes to worse California can go back to the polls and vote to reverse Prop 8 in 2014 or 2016 as it clearly will. But there is a chance that the SCOTUS might use this case to legalize marriage equality nationwide, so it is worth the wait for California.
31.
Seth from Maryland | December 7, 2012 at 12:38 pm
its interesting about the standing issue ,does anyone think the supreme court think they dont have standing to appeal?
32.
Gregory in SLC | December 7, 2012 at 12:40 pm
I feel sad for California : ( On the other hand, like Zak, living in UT (with ZERO chance of marriage equality if up to state) Scotus hearing prop 8 gives me hope.
33.
Kevin | December 7, 2012 at 12:40 pm
Their addition of the standing question for certiorari indicates the opposite; the merits might *not* be considered at all. As I have suspected all along, this will be a landmark Supreme Court decision … about standing.
34.
Gregory in SLC | December 7, 2012 at 12:42 pm
thx Anthony. Gregory living in Utah
35. SCOTUS Grants Cert Prop 8&hellip | December 7, 2012 at 12:42 pm
[...] official confirmation from the U.S. Supreme Court, the National Center for Lesbian Rights and the Prop 8 Trial Tracker are reporting that SCOTUS has granted cert in both Perry v. Hollingsworth (the federal challenge [...]
36. Supreme Court To Hear Bot&hellip | December 7, 2012 at 12:43 pm
[...] just breaking that the United States Supreme Court will hear both the DOMA (Defense Of Marriage Act) and [...]
37.
Jeff | December 7, 2012 at 12:43 pm
Yes, I do. I think its likely they will find that in Prop 8 they do not. I think in the WIndsor case they will find BLAG does have standing and will rule on its merits. But then again Im no lawyer:)
38.
Seth from Maryland | December 7, 2012 at 12:44 pm
has afer made a responce yet?
39.
Str8Grandmother | December 7, 2012 at 12:44 pm
We are ALL CALIFORNIANS NOW!!!
We are all in this together, this unites us.
And we're gonna WIN!
40.
Steve | December 7, 2012 at 12:44 pm
They can still issue a ruling that only applies to CA
41.
James | December 7, 2012 at 12:44 pm
I think she has a right to be disappointed. As a Californian waiting for the right to marry my partner I too am nervous about this decision.
42.
Eric | December 7, 2012 at 12:44 pm
Standing requires harm, what is the harm to proponents that is beyond any harm to any other California citizen?
43.
bythesea | December 7, 2012 at 12:45 pm
Sounds like they are.
44.
Seth from Maryland | December 7, 2012 at 12:46 pm
me too
45.
Str8Grandmother | December 7, 2012 at 12:48 pm
That is my question also.
46.
Gregory in SLC | December 7, 2012 at 12:48 pm
from scotusblog:
3:46 Lyle: If anyone were to be recused from Prop. 8 or DOMA, it would have been noted. There is no recusal in either
47.
jamie | December 7, 2012 at 12:49 pm
yes. the proponents don't likely have standing.
48.
nightshayde | December 7, 2012 at 12:52 pm
I'm now hoping for Scalia and or Thomas to pull a DeMint, abruptly stepping down to accept a leadership role in a conservative thinktank somewhere… preferably both of them!
Lightning strike would work, too. I'm not picky.
49.
Steven | December 7, 2012 at 12:53 pm
Please be positive for next 6 montths… I was kinda expecting this last night. Standing issue is big one because I didn't like it what 9th Circuit did..
50.
Fr. Bill | December 7, 2012 at 12:53 pm
A retired lawyer here – Who knows but that might be a good guess
51.
Jon | December 7, 2012 at 12:53 pm
Rejecting the Prop 8 appeal on standing does a number of convenient things for the court:
1. Neither accepts nor rules on the 9th circuit's "taking away rights" finding, which potentially opens up a bunch of unrelated cans of worms regarding law reversals.
2. If they want to let Prop 8 die without setting national precedent, or letting the "taking away rights" thing become stronger precedent, they can.
3. Shuts down appeals by authors of voter initiatives, if they want a vehicle to do so.
52.
Dom | December 7, 2012 at 12:55 pm
One of the main reasons why the Supreme Court grants certiorari is when it sees that lower courts are ruling inconsistently with each other on a federal issue. Remember that the argument is that Prop 8 and DOMA violate the constitution.
In the Perry (Prop 8) case, the 9th Circuit made a ruling that was California specific, but since then, lower courts in Hawaii and Nevada have ruled against marriage equality. I think that the Supreme Court saw this, and decided that it needed to weigh in sooner rather than later because the potential for inconsistent rulings is huge. There already is a ruling in the 8th circuit stating that there is no federal right to same-sex marriage.
Even as a lawyer, I cannot predict how the Court will rule, and anyone who says that they can is not being realistic. The Court is too closely divided, and the decision will likely be 5-4 either way (possibly 6-3).
But for me, the fact that they decided to hear the case is not necessarily good or bad news. And I take comfort in the fact that we have 2 of the best constitutional lawyers in American history on our side!
53.
Seth from Maryland | December 7, 2012 at 12:57 pm
i dont think the supreme court did either
54.
Str8Grandmother | December 7, 2012 at 12:58 pm
Now which Grandmother do you 'spose Lyle is writing to? he-he-he
55.
davep | December 7, 2012 at 1:00 pm
… and the fact that they will be examining the question of whether the defendant intervenors even have standing may result in the case being decided not on the 9th circuit ruling, but on JUDGE WALKERS ruling, which would be MUCH better.
56.
Stefan | December 7, 2012 at 1:01 pm
Agreed, in which case Walker's original ruling would stand and same-sex marriage would still resume in California. This would provide the court a great opportunity to wait a couple more years and let public opinion shift more in our favor.
57.
Jon | December 7, 2012 at 1:02 pm
It occurs to me that some of France, UK, Colombia, Uruguay, Mexico, and 1-2 more states may legalize marriage equality between now and a ruling in June. I wonder how much effect that will have on the swing votes in the USSC?
58.
Seth from Maryland | December 7, 2012 at 1:03 pm
the bs the 9th circuit did with the standing issue was just a mess an wasted time on the issue, aren't those judges the same ones who had a similar standing issue overturned by the supreme court ?
59.
Phillip K | December 7, 2012 at 1:04 pm
Those couples aren't the ones involved in this particular suit though.
60.
Str8Grandmother | December 7, 2012 at 1:05 pm
My mind is a jumble right now. In Windsor, I am so I guess shocked that finally we know that I can't think straight. Did Windsor get through Appeal? Didn't the Manhattan District Judge rule for heightened Scrutiny?
61.
Eric | December 7, 2012 at 1:10 pm
Windsor was decided by the 2nd Circuit and called for heightened scrutiny.
62.
Stefan | December 7, 2012 at 1:15 pm
There are currently 5-6 states which are poised to legalize it this year (Illinois, Rhode Island, Deleware, New Jersey, Hawaii, Minnesota). It can only help.
63.
Str8Grandmother | December 7, 2012 at 1:16 pm
YES!!!! ERIC, thank you for being clear headed. It was straight out Heightened Scrutiny. We could all benefit of a link to the Windsor decisions. Prop 8 I think most of us have memorized what they said.
64.
Tyler O. | December 7, 2012 at 1:17 pm
If Walker's ruling is allowed to stand, wouldn't that then be the law of the land and marriage equality would be the law of the land across the country?
65.
RAJ | December 7, 2012 at 1:20 pm
From SCOTUSblog:
"Lyle:
Thanks to David Codell for a pithy, compelling response on what would happen to Judge Walker's opinion if 9th CA decision is vacated for lack of Art. III standing for the backers. He says Walker's ruling would remain binding, but only on the parties. That means someone else could litigate it again, if they could show Art III standng. "
So, is this guy suggesting a FLOOD of litigation would follow?
66.
MightyAcorn | December 7, 2012 at 1:23 pm
True–though having a final determination on initiative-proponent standing is important, especially here in CA where the initiative system is corrupt and driven by corporate dollars.
That said–having the marriage equality case bound up with standing might result, inadvertently, in a big win for marriage in California, if not the whole circuit.
Or, is it possible it could get booted back to the Ninth and delayed for another year on the standing issue, while marriage equality never gets heard? I'm wondering what worst case scenario is (other than a ruling in the Proponents' favor, of course.) Anyone with a law degree care to comment?
67.
Anthony from SoCal | December 7, 2012 at 1:25 pm
Even though waiting is tough, I KNOW this will be for the best outcome for marriage equality. NOM and all the other haters wanted to go to SCOTUS? Fine. I'm sure some of the Justices won't have a problem ripping them a new one… I can almost hear the Justices questioning their logic on:
1. Standing
2. Lack of Evidence
3. Lack of "Experts"
4. Overall merits of the case.
I would love to read those transcripts and listen to the audio at the same time. Grab some popcorn because this is going to be EPIC!
68. Reasons for Living | The &hellip | December 7, 2012 at 1:25 pm
[...] official: The U.S. Supreme Court will consider challenges to Prop 8 (California’s marriage ban) and DOMA (so-called Defense of Marriage Act). [...]
69.
Stefan | December 7, 2012 at 1:25 pm
I remember reading such an opinion when the standing question was a big issue and it was shot down.
70.
Matt N | December 7, 2012 at 1:25 pm
There is a lot of confusion in my mind about what happens if the Supreme Court says
a) Prop8 opponents have no standing
and/or
b) BLAG has no standing
Let's say BLAG has no standing and no one else has standing to defend DOMA. What then?
71.
Robert West | December 7, 2012 at 1:27 pm
no.
if the case is tossed on the standing issue, then it's as if the case never went beyond the district court, which means it's only binding on the parties. and only the parties can appeal, and California won't do that.
since one of the parties is California, it would be binding throughout California, but not elsewhere.
72.
Bill S. | December 7, 2012 at 1:27 pm
I think that this may have an effect on Chief Justice Roberts. Surely they know where the wind is blowing on this issue and Roberts, whose name will be attached to the "Roberts Court" in the history books, will be more mindful of how he will be viewed in history.
73.
Bill S. | December 7, 2012 at 1:29 pm
QUESTION: If the Supreme Court vacates the 9th Circuit ruling on standing grounds, what then will become of Proposition 8? District Court decisions set no binding precedent. Couldn't a county clerk in California refuse to grant a same-sex marriage license, be sued by that couple, and then win under a different judge?
74.
Javier Menlo | December 7, 2012 at 1:35 pm
Though I agree and am in a similar situation (partner and I waiting to marry), we all knew from the beginning of this lawsuit that our side was aiming for SCOTUS.
I attended the town hall discussion in San Diego debating whether we wanted to take a shot at the 2012 election to overturn prop 8. Just before the town vote was called, a young man stood up and reminded everyone of the stakes involved and summed things up quite nicely…paraphrasing of course (and my apologies if he's reading this): "THIS CASE IS NOT JUST ABOUT US [californians]. This is about our brothers, sisters, parents and children who live in parts of the country where they would have NO CHANCE IN THEIR LIFETIME for a popular vote on equality. We've been patient and have thus far scored key victories that may very well pave the way for nationwide marriage equality… we owe those people our continued patience."
Basically, he was saying that a successful 2012 proposition could restore californians rights but would essentially pull the plug on our prop 8 lawsuit… which would, by proxy, kill a potential score with SCOTUS. He also made a good point that we might also subsequently see EXPENSIVE back-and-forth ballot initiative over the next decade from both sides.
Basically, a victory at SCOTUS would preclude future ballot initiatives. And there is no doubt in my mind that if we lose SCOTUS, we have the poll #'s now to overturn prop 8. I guess I would just rather wait a few more months for possible state AND federal benefits……..and the ability to travel FREELY in the united states and still be "married." We're not free if our freedom is limited to a small handful of states (no matter how wonderful those few states are)!
75.
Eric | December 7, 2012 at 1:35 pm
It was an Arizona case, Roberts isn't a big fan of extending standing to intervenors.
76.
Eric | December 7, 2012 at 1:37 pm
No, because the state of California is a party to the suit and the county clerk is an agent of the state when issuing marriage licenses.
77.
MightyAcorn | December 7, 2012 at 1:37 pm
This is when I wished there was a live-stream at SCOTUS. Still, there's a rumor they may release audio the same day, along with the transcripts. I'll have to cancel everything else that day, I'll be pretty useless until I've read/heard/digested it all.
78.
Str8Grandmother | December 7, 2012 at 1:37 pm
I need help here but I remember that in their Petition to the Walker Court Olson and Boies asked for the ruling to be binding for the 4 petitioners, and also binding on the head guy in California who regulates Marriage Licenses. He directs all the County Clerks etc, on when to issue Marriage Licenses.
I remember reading about that and it was a strategy they used. So if the 9th Circuit Court of Appeals gets vacated and Walkers Ruling Stands the ruling is for the 4 Plaintiffs but ALSO on this guy who heads up State Wide Marriage Licenses.
Does anybody else remember this point?
79.
Stefan | December 7, 2012 at 1:40 pm
District Court decisions very much set binding precedent. Remember that same sex marriages would've resumed through all of California had the 9th Circuit not granted the stay.
80.
MightyAcorn | December 7, 2012 at 1:43 pm
Yeah….I'd like to see Imperial and Kern Counties try to buck the order to issue to same-sex couples this time. I bet they'll make noise but have to comply. GOOD.
81.
RAJ | December 7, 2012 at 1:43 pm
I remember a particular conversation where David Boise explained why the effect would be generalized in California and would NOT just apply to the specific plaintiffs in Perry. But I don't remember any of the legal details.
82.
Stephen | December 7, 2012 at 1:43 pm
Is it possible that the Supreme Court could apply the Ninth Circuit's ruling to all the states and territories for Prop 8? The ruling was something along the lines that once the rights were granted, taking them away was in violation. This kind of ruling will protect states like Iowa from overturning same-sex marriage through ballot measures and any other states with marriage equality from a future and hateful Republican Majorities.
I could see Section 3 of DOMA being shot down in flames with a 6-3, maybe even a 7-2 majority. They could argue both conservative and liberal principles, like States Rights, Due Process, Liberty, and Equal Protection.
83.
Alan | December 7, 2012 at 1:46 pm
Also disappointed here. Given how narrowly construed the issue on the Prop 8 case is, I think chances are very slim the justices will choose to broaden it and apply it to other states.
84.
Miguel & Steve | December 7, 2012 at 1:49 pm
No….your partner and you, really, only need DOMA to be stricken. As you can then move to another State, get re-married, or get married in DF (Mexico City), and move to NY State – where your marriage will be recognized. You will need to move only for 181 days…enough time to claim "residency" in that State.
I am in the same boat as you are.
Let's hope that this boat doesn't sink…..but that it arrives at its intended port !
Abrazos desde Merida, Yucatan !
85.
MightyAcorn | December 7, 2012 at 1:49 pm
Boies did get a bit of a reproach from the CASC (I think?) about that strategy during the hearing, but we weren't punished for it. In fact, I think CASC saw that it was a smart way to get the case litigated but wanted to show that they thought it was kinda sneaky.
86.
Keith | December 7, 2012 at 1:50 pm
I don't think it's awful, but it's definitely historic. I believe they will strike down Prop 8 in very broad terms that will effectively sweep away all state amendments barring marriage equality. I think it will be a huge win for equality. I think this is their way of saying ENOUGH!
We will know the end of June, but if they uphold DOMA and Prop 8, I'm sure we will see huge protests and probably a mass exodus of gay American's to Canada.
87.
Keith | December 7, 2012 at 1:56 pm
I wish they had lifted the 9th Courts stay and allow same sex marriages to resume in California. That would have showed their hand on how they're going to rule in June, but just not how broadly.
88.
Keith | December 7, 2012 at 1:59 pm
That's the way I see it. If they uphold Prop 8 and DOMA, our country has some really big problems going forward because that will be a new era of religious ideology being supported in law and that's a slippery slope no free nation wants to be on.
89.
Str8Grandmother | December 7, 2012 at 2:01 pm
MightyAcorn, yes that was it. Now that you said that, that is what I remember also.
90.
Robin | December 7, 2012 at 2:02 pm
A vanishingly slim chance, surely, given the narrow scope of the Prop 8 case and the uniqueness of California's situation (no other state has ever legalized marriage equality via the court and subsequently delegalized it via ballot initiative). Meanwhile, every year, every month, every day this gets delayed, someone doesn't make it to the finish line with us. Someone who's been waiting decades for this dies without ever getting to marry their partner. They shouldn't have to wait another two or four years for a case we already won two years ago. Every day it drags on is a victory on the part of the homophobes' efforts to slow it down.
91.
Tyler O. | December 7, 2012 at 2:03 pm
Thanks!
92.
Straight Ally #3008 | December 7, 2012 at 2:06 pm
Curious – which additional states could have marriage equality by June? Illinois hopefully, maybe Delaware? It technically shouldn't matter, but it would be nice if we had a few more states in our corner.
93.
Bill S. | December 7, 2012 at 2:07 pm
District Court decisions set no precedent. See Fishman v. Tropical Shipping (11th Cir.): " As a result, the district court cannot be said to be bound by a decision of one of its brother or sister judges. Based on this, as well as the lack of precedent to conclude that intra-court comity applies between courts on the district court level, we find that this issue has no merit."
94.
Bill S. | December 7, 2012 at 2:07 pm
Technically, it was the Governor of California who was sued in his official capacity. Should an anti-gay governor come into power and refuse to enforce the order, presumably the case could be re-opened then, no?
95.
Robin | December 7, 2012 at 2:08 pm
This case is not just about young people, either (and I say this as a young person). It's about LGBT seniors who have lived through much worse than we have and who have been waiting for this for fifty+ years and who might not live long enough for everything to get through the red tape of the legal system. The Prop 8 case is not the only — or the most likely — way to achieve marriage equality via SCOTUS. There are DOMA cases out there with much broader scope.
96.
fiona64 | December 7, 2012 at 2:11 pm
I think it's much more likely that they'll say proponents have no Article III standing (they would have to be able to show particularized harm — in other words, how they would personally be negatively impacted by marriage equality) and not touch the merits at all. Remember, the SCOTUS *added* that issue to their order. They clearly have a reason for doing so.
97.
Keith | December 7, 2012 at 2:13 pm
This could end up being a very ugly mark on our legislative and executive branch's of government. If they strike down DOMA as unconstitutional, that means that President Clinton and the Congress violated their oaths of office of defending the constitution, the sole reason they're sent to Washington in the first place.
That should have consequences. Why? Because in a just society, people's actions have consequences. Could it spur further legal action? I believe it could. Could we haul those who voted and signed this into law into court for criminal trials? I believe we should be able to. That is what will prevent this from happening in the future. We must demand consequences for their actions. It's a double edged sword.
Or am I just crazy? lol
98.
Stefan | December 7, 2012 at 2:15 pm
The two you mentioned, plus Rhode Island, Minnesota, Hawaii, and New Jersey.
99.
MightyAcorn | December 7, 2012 at 2:16 pm
Or was it the 9th? I can't remember…it was the three-man panel, so I think the Ninth. Brrr, we need a timeline here.
100.
Stefan | December 7, 2012 at 2:16 pm
See below you for the correct response. This decision would carry binding precedent for California.
101.
Str8Grandmother | December 7, 2012 at 2:23 pm
Well since you asked, I'm going for "just crazy" (smile)
102.
Str8Grandmother | December 7, 2012 at 2:24 pm
New Jersey? You think New Jersey is in play? Enough republicans who would vote to override Christie?
103.
Seth from Maryland | December 7, 2012 at 2:31 pm
the nj senate may already be there , its just getting the nj house
104.
ebohlman | December 7, 2012 at 2:31 pm
Except in that case, the ruling wouldn't set any precedent since it would be purely at the district court level
105.
Stefan | December 7, 2012 at 2:33 pm
Though if it does happen it likely won't be until their lame duck session, so Dec/Jan of 2013/2014.
106.
Rich | December 7, 2012 at 2:34 pm
Chris Matthews (Hardball) is all over this news tonight with Chad Griffin and Elizabeth Burch (sp) and it's exciting to listen. Matthews point is that, in light of the lightening speed with which the tide is turning on gay rights/marriage and the result election results, it's time to go national. Sounds as if there are many reasons to celebrate that SCOTUS has taken up Prop 8 and DOMA. What a wild ride this will be.
107.
dong90806 | December 7, 2012 at 2:35 pm
The lawyers out there should check out the case of Raines v. Byrd, 521 U.S. 811 (1997) in which the US Supreme Court held that members of the House of Representatives did NOT have standing since they had not suffered a particularized injury and a favorable judgment would not remedy their injury.
Of course, because of the case of Ariozonans for Official English v. Arizona, there is NO way the US SCt will let the 9th Circuit decision stand. How they deal with it is up in the air, but there is NO way the 9th Circuit decision stands because of the "standing" issue.
108.
Str8Grandmother | December 7, 2012 at 2:36 pm
Here is the link to the District Court Decision in Windsor http://www.scribd.com/doc/96212507/1-10-cv-08435-…
wow this was decided just Oct 18th – Here is the link to the 2nd Circuit Court of Appeals Ruling http://www.scribd.com/doc/110431508/12-2335-447
Here is the link to the Dissent in the 2nd Circuit http://www.scribd.com/doc/110433273/12-2335-448
And the Prop8TrialTracker story on the Second Circuits Ruling http://www.prop8trialtracker.com/2012/10/18/break…
109.
J. Sanchez | December 7, 2012 at 2:45 pm
I agree Alan. I think the court's decision to take prop 8 is indicative of an unfavorable outcome. I also think it is interesting that the court took the Windsor case as opposed to any other DOMA case because only WIndsor held that sexual orientation is a protected class that warrants intermediate review of scrutiny. I have a gut feeling the court will strike down section 3 of DOMA using rational basis as the standard of review and it will uphold Prop 8. and use the recent gay marriage victories at the polls to support its holding. Obviously, I hope I am wrong and the court strikes down Prop 8. and that it elevates sexual orientation to intermediate scrutiny.
110.
Anthony | December 7, 2012 at 2:47 pm
Just because we win in a few states doesn't mean we aren't still discriminated against. Bad argument there.
111.
Mike in Baltimore | December 7, 2012 at 2:50 pm
Bad news for nom and the other bigots but not necessarily bad news for the GLBT community.
SCOTUS is looking to see if anyone had standing, which is the worst news for nom and the other bigots (like BLAG).
112.
Eric | December 7, 2012 at 2:53 pm
Laws are found unconstitutional all the time, it doesn't mean there was criminal intent.
113.
J. Sanchez | December 7, 2012 at 2:54 pm
I thought Windsor was heard and a decision was rendered in the 2nd Cir. Here is wikipedia says: "On September 27, Chief Judge Dennis Jacobs and Judges Chester J. Straub, and Christopher F. Droney heard arguments in the case.[22] On October 18, the Second Circuit Court of Appeals upheld the lower court's ruling that Section 3 of DOMA is unconstitutional.[23][24] It was the first federal court of appeals decision to hold that laws that classify people based on sexual orientation should be subject to intermediate scrutiny.[25]"
114.
Mike in Baltimore | December 7, 2012 at 2:57 pm
So if they rule only on standing and otherwise toss the DoMA cases, that means some people living in some states are not ruled by DoMA, but everyone else is (in effect, DoMA is unConstitutional in three-six states, but Constitutional in all the rest). And you don't think SCOTUS recognizes that?
115.
Str8Grandmother | December 7, 2012 at 3:04 pm
You are right J Sanchez. I was editing my comment when yours got posted. I think they kind of "crossed in the mail"
116.
Chris in Lathrop | December 7, 2012 at 3:08 pm
Six more months of pins and needles. Again! I'm married, leaving me no direct stake in this ruling, but I still can't take the suspense!
I am optimistic, though. My sisters and brothers will regain the rights they should have had all along in California, and we have a chance that the whole country will be freed much like it was with Lawrence.
117.
Stefan | December 7, 2012 at 3:18 pm
We need just 3 votes in the senate and 9 in the house (not including 3 legislators who were absent from the vote who would've vote in our favor). I'd say given the progress we will make next year that's very much do-able.
118.
Glen | December 7, 2012 at 3:57 pm
Indeed, there are States that voted in anti-gay marriage amendments to their constitutions that were upwards of 80% in favor.
The Supreme Court would have to look at them and realize gay people will continue to be discriminated against in those states for MANY decades to come.
This is their opportunity to say Nope you have less than a year to continue such discrimination.
119.
Glen | December 7, 2012 at 4:02 pm
I really can't see the Supreme Court, knowing FULL well the direction the country has been steadily moving in on this topic (and religious arguments for things in general), would choose to go against that trend, with the knowledge that more-and-more states will include marriage equality (including those that have previously passed anti-gay amendments), and within a decade find themselves being overturned and admonished by a newer Supreme Court that proclaims they ruled incorrectly.
120.
Glen | December 7, 2012 at 4:13 pm
The Supreme Court seems to regularly toss cases due to what they deem to be lack of standing, so… this seems a VERY strong possibility on how they intend to rule.
Still it would be fantastic to see them broadly rule and bring marriage equality to the entire nation.
121.
Glen | December 7, 2012 at 4:16 pm
Somebody PLEASE offer them multimillion dollar salaries.
If there is one thing that rules above all else for most right wingers it's greed.
122.
Glen | December 7, 2012 at 4:20 pm
This is a good point, and it should be noted that Kennedy is certainly not adverse to looking at international trends and standards when it comes to his rulings.
Here's hoping at least France and the UK have passed their marriage equality laws early in 2013.
123.
Glen | December 7, 2012 at 4:21 pm
I am very hopeful that John Roberts will yet again blow the minds of the far right and vote to strike down DOMA and Prop-8.
I have a fairly good feeling that he just might.
124.
Bob | December 7, 2012 at 4:25 pm
There are like 5 ways this could get decided and 4 favor marriage equality.
125.
Glen | December 7, 2012 at 4:29 pm
I wonder if Christie could still change his mind.
Not that he would given his hopes of winning the Republican primary for 2016, but then if he's shooting for broader appeal and thinks the Republican base will eschew the far right sociocons in order to get back in the game for 2016, perhaps he just might change his mind and override his own veto (if that's even possible).
126.
Rich | December 7, 2012 at 4:34 pm
Yes Chris, those of us in the states that allow gay marriage (my state of Maine included) must join in unity with all our brothers and sisters nationwide and worldwide to stay strong and fight the good fight. As Str8Grandmother said, "we are all Californians now"…and we are members of every state in this great union that does not, yet, recognize the right to marriage equality. Every indication that I have seen today is that the movement to equality is powerful and growing exponentially….national news, blogs, water cooler talk is all about the excitement that blossomed today with the news that the Supreme Court of the United States sees this issue as worthy of consideration. We all know that the arguments are on our side (beautifully presented by worthy counselors) and it's only a matter of time (months) before the right to celebrate the responsibilities and gifts of marriage are available to every committed gay couple in the United States of America. Let us stay positive, let us stay strong and let us never back down in the face of oppression. This is our national victory to win. Our country will be the better for it and the world will know that the Constitution of the United States guarantees and even demands, truth, equality and freedom for all. We started at the doorsteps of the Stonewall Inn; we finish at the doorsteps of the Supreme Court. I will see you there!
127.
Glen | December 7, 2012 at 4:35 pm
Yep, just crazy.
The three branches of government are technically independent of one another and together provide the checks-and-balances upon one another. The Congress and Executive branch are perfectly within their rights to pass laws that are unconstitutional (whether they are aware they are or not).
It is then the Court's role to shoot down those laws as violating the Constitution. (Sadly this can take a long time, but then DOMA wasn't challenged to the Supreme Court until recently)
To keep check on the Court, the Congress can then begin the process of amending the Constitution to override the court. (That would also require ratification by 3/4 of the States).
128.
Straight Dave | December 7, 2012 at 6:25 pm
The fact that DOMA exists is already a very ugly mark. It's not gonna get any worse for them, but might raise the stauts of the judicial branch (at least in some people's view).
I remember seeing some interviews in print a few years ago where legislators were openly admitting that they knew DOMA was unconstitutional, but expected SCOTUS to bail them out so they didn't have to feel too guilty about the impact they had. It was passed partly for raw political reasons. No conscience whatsoever. I think it took a lot longer to repair the damage than was expected. Can't recall exactly where I read that or who the perpetrators were. Will post if I find it again.
129.
Bill S. | December 7, 2012 at 6:26 pm
The decision *applies* to all of California (because it contains an order against the Governor that all persons under his authority cannot enforce Prop 8) but this decision is not binding on any other federal court.
130.
W. Kevin Vicklund | December 7, 2012 at 6:39 pm
No, but they do have the option, since challenges on rights are reviewed de novo (meaning they can review the case as new, without having to find a clear error on the part of the lower courts). They can simply rule on the narrow question, but they could also go broad. But the standing hurdle must be cleared first. No standing, case dismissed, Walker's ruling stands.
131.
SHOES THROWER | December 7, 2012 at 6:48 pm
On the other hand, they did not vacate the 9th Circuit's ruling, meaning that if the Supremes rejects Brewer v. Diaz, 12-23 (O.T./ 2012), the case goes back to the district court where the 9th Circuit's ruling will resolve that case in favor of the plaintiffs.
132.
SHOES THROWER | December 7, 2012 at 7:11 pm
It is significant that the Supreme Court did not simply vacate and remand in Hollingsworth. this means Perry v. Brown, 671 F.3d 1052 (9th Cir. Feb. 5, 2012) is still binding precedent. This will be significant in Brewer v. Diaz, 12-23 (O.T. 2012)
If the Supreme Court denies cert to Brewer, the case goes back to the district court, which must decide due process and equal protection challenges against a law that stripped same-sex domestic partners, but not opposite-sex spouses, of domestic partner benefits.The law must, at a minimum, have "a rational relation to some legitimate end". Romer v. Evans, 517 U.S. 620 at 631 (1996)
Any end that could be rationally related to this law would also be rationally related to Proposition 8. But Perry forecloses arguments based upon Proposition 8 having a rational relation to a legitimate end. 671 F.3d at 1086-1092. It therefore follows that the selective withdrawal of the health benefits at issue can not have a rational relation to a legitimate end, and can not survive an equal protection challenge in the district court.
In one way, the Arizona law even goes further, as it stripped benefits from existing state employees, not just for those hired after the law went into effect, while Proposition 8 did not disturb existing marriages.
133.
grod | December 7, 2012 at 7:33 pm
In my opinion, cases cannot be determined/declared on their merit, and the decisions below the Supremes therefore stand. I read something on today's Live Blog that the Supremes do not compartmentalize the oral hearing,so the arguments on standing and on merit in both cases would be heard. But when it comes to declaring a decision, the Court's only public written opinion is on the matter of being without-standing – for these reasons. G
134.
Mike in Baltimore | December 7, 2012 at 7:39 pm
Only somewhat tangentially related, but recently I was reading an article on the Supreme Court review of certain death penalty laws. A comment in the article caught my eye.
The writer stated that SCOTUS started interrupting the attorneys against the laws allowing prohibition of DNA evidence to be introduced after the trial within 30 seconds after they began speaking, and waited quite a while before interrupting the other side. The writer, who had observed many court proceedings, took that as a very bad sign – normally when the court takes sides, it interrupts the side it doesn't want early, and waits until at least 90 seconds before interrupting the side it 'favors'. The author stated that the timing of the interruptions, in his opinion, was a better indication of final outcome than the questions asked.
Anyone who is an in person eyewitness to the SCOTUS arguments, please let us know if the Court interrupts early or late, and which side they interrupt quickest.
135.
Keith | December 7, 2012 at 8:14 pm
Then our system is ass backwards. Shouldn't laws be reviewed for constitutionality by the SCOTUS before being made law? That makes more sense than allowing unjust laws to be enacted, for people to be harmed, and then be overturned.
Seems like it's all self inflicted. Shouldn't we be a little smarter than this by now?
136.
Keith | December 7, 2012 at 8:33 pm
Dave, this is how I see it. When someone breaks the law they suffer the consequence if/when they're caught. They suffer that consequence as a way to deter them from doing it again. When a kid is caught breaking their parents rules they are usually grounded to deter them from such behavior.
But our elected officials, who are sworn to defend our constitution and uphold our laws can pass unjust laws with no recourse whatsoever? If there is no consequence for their actions, there is nothing to deter them from such behavior in the future. Hell, I wish I had a job like that. They are in positions of such power and authority that not having consequences for their actions just seems ludicrous to me.
137.
Reformed | December 7, 2012 at 8:37 pm
opps, sorry down thumbs dowed your comment. I like seeing the perspectives on what they might be thinking.
138.
Keith | December 7, 2012 at 8:39 pm
Hell, at this rate, Iran will allow gays to marry before the SCOTUS acts.
139. Scottie Thomaston: Suprem&hellip | December 7, 2012 at 9:06 pm
[...] This piece first appeared at Prop 8 Trial Tracker. [...]
140.
Jamie | December 7, 2012 at 9:15 pm
Hi Michael Ejercito. Copying and pasting the same comment over and over on different boards must be boring. Nothing else to do other than harass gay people?
141.
Landon | December 7, 2012 at 9:16 pm
Should have been on the ballot in California this year. I live here and I assure you it would have passed and LGBT in California would have full marriage equality for a month now. Our leaders here did not have much faith in us and our progress.
142. Scottie Thomaston: Suprem&hellip | December 7, 2012 at 9:31 pm
[...] This piece first appeared at Prop 8 Trial Tracker. [...]
143. Scottie Thomaston: Suprem&hellip | December 7, 2012 at 9:40 pm
[...] This piece first appeared at Prop 8 Trial Tracker. [...]
144. Scottie Thomaston: Suprem&hellip | December 7, 2012 at 9:57 pm
[...] This piece first appeared at Prop 8 Trial Tracker. [...]
145.
J. Sanchez | December 7, 2012 at 10:59 pm
@Shoes I don't see how Diaz can survive a favorable outcome unless the Sup. Ct. elevates sexual orientation to intermediate scrutiny as the 2nd Circuit has or unless the court creates a more stringent rational basis review for sexual orientation as did the First Circuit and as SCOTUS has done in Romer and Lawrence. There is something significant to be said about taking a right away once it is granted.
146. Scottie Thomaston: Suprem&hellip | December 7, 2012 at 11:06 pm
[...] This piece first appeared at Prop 8 Trial Tracker. [...]
147.
J. Sanchez | December 7, 2012 at 11:10 pm
@Dom I hear where you are coming from and with regard to Prop. 8 and I am 110% with you. But with regard to Windsor, do you really think SCOTUS is going to tell an 80 year-old that she has to pay $300k in taxes because she married a woman and not a man. I am dubious 5 members of the SCOTUS will agree that sexual orientation warrants intermediate scrutiny, but I do believe that 5 or 6 members of the SCOTUS will agree with that section 3 of DOMA is unconstitutional and thereby make sure Ms. Windsor receives a refund plus interest. I suspect some justices will use intermediate scrutiny and others will use rational basis. So worse case scenario we have a plurality opinion striking down DOMA.
148.
J. Sanchez | December 7, 2012 at 11:15 pm
I can see how all this is confusing and why you'd think Windsor was not heard at the appellate level. From what I have read there was some rambling and going back and forth with trying to bypass the appeals court and have the trial court decision directly appealed to SCOTUS. LUCKILY the 2nd did hear the appeal because it, thus far, has been the only court to elevate sexual orientation to intermediate scrutiny.
149.
Stefan | December 8, 2012 at 12:04 am
He could rescind the veto. I predict he really wants the issue to go away, and will be working behind the scenes to ensure his veto is overriden.
150.
Stefan | December 8, 2012 at 12:05 am
Well no, but other cases could draw from Walker's ruling.
151. Scottie Thomaston: Suprem&hellip | December 8, 2012 at 1:46 am
[...] This piece first appeared at Prop 8 Trial Tracker. [...]
152.
Str8Grandmother | December 8, 2012 at 2:32 am
Ted Olson:
“In short, the record is so complete that we have always felt that if the issue of marriage equality was going to be before the Supreme Court, the Proposition 8 Perry case should be a part of it because it has vastly more developed evidentiary record and specific thoughtful findings by a district judge who listened to all the evidence, and there was no evidence of any persuasive effect on the other side,” Olson said.
http://www.washingtonblade.com/2012/12/07/prop-8-…
This is what I have always felt. In Hawaii and in Nevada no Witnesses Testified. The opposing sides submitted Briefs to the Court. The Trial Record in Prop 8 is very strong, very strong. I believe in the Prop 8 Trial Record. Particularly the Testimony of Dr. Nancy Cott about the History of Marriage in America and how over the years the States and even the Federal Government has discriminated against other disfavored groups. Remember her testimony that is an American woman married a Chinese man (the influx of Chinese brought in to build the railroads) if an American woman married a Chinese man she lost her American Citizenship.
The Trial record is so strong and the other side had nothing, nothing other than Pro-Creation, Pro-Creation, Pro-Creation and the Deinstitutionalization of Marrige (and with that they answered that they simply didn't know but were assuming it), the Trial Record in Perry is so strong that I did want the Supreme Court to rule on THIS CASE. The Justices are now going to have to go back and read that Trial Record and I do NOT see how we will loose. I think we will get a sweeping ruling based on the Fourteenth Amendment that will provide Civil Marriage for Sexual Minorities nationwide. I have Faith in the Trial record in Perry. Sure they could decide narrowly, but I don't think they will. One thing is for sure I do NOT think we will loose.
153.
Dr. Brent Zenobia | December 8, 2012 at 3:00 am
Perhaps SCOTUS was originally going to deny cert in Perry, but the more they looked at it the more they found that the Ninth Circuit's convoluted "California-only" reasoning was unworkable and arbitrary: why should gays/lesbians have the right to get married in California, but not in Hawaii or Nevada?
This case is going to attract such monumental attention and interest that SCOTUS will find itself unable to issue a lame, anticlimatic ruling that relies on inside-baseball stuff like standing. The reaction to that would likely be "You nine clowns need to stop stalling and do your jobs!"
The SCOTUS is boxed in, and it's time for a showdown. It's been twenty years since Hawaii started this off. I feel good that we're going to win at SCOTUS, and win big. Stay strong.
154.
Todd | December 8, 2012 at 6:14 am
OK, the shock has worn off and I’ve had a chance to sleep on it and woke up with a new perspective. Like most, I figured SCOTUS would reject certiorari on the Prop 8 case because it was so narrow and just easy for them to do so, while definitely expecting at least one DOMA case to be taken up. Now that we know that Prop 8 has been taken up, at least one thing has changed – SCOTUS could at least theoretically rule on a broad, national right to same sex marriage, something that wouldn’t have been possible if they hadn’t taken it up. I may have my rose colored glasses on but I’m thinking maybe SCOTUS is really looking to get a broader definitive, once and for all ruling on this. They clearly know that the trend is in our favor, with polls and cultural attitudes. Combined with the fact that in the court cases so far, the other side hasn’t been able to come up with much more than “I’m just not comfortable with it, so there!” I also think the conservatives on the court know that more and more republicans are coming over to our side while at the same time, a broad right to same-sex marriage would be a strong and highly motivating reaction from their fringe extremists in the conservative base. Even the conservatives in SCOTUS have got to know that no matter what they do, they won’t reverse the trend of continued acceptance of same-sex marriage. In a general sense, it seems like SCOTUS could either rule against same-sex marriage, rule for it narrowly, or rule for it broadly. With the latest wins in Maine, Washington, Maryland, Minnesota and international wins in Mexico, Argentina, Brazil and now moving into Asia, why would they want to go down in history ruling against something they know will eventually be overturned? Or why would they want to bend over backwards to fine a narrow ruling ‘for’ same-sex marriage if they know that there will just be court case after court case coming down the pipeline trying to reach a final, broad, definitive ruling? Again, with the public opinion trends, recent gains at the ballot boxes, growing cultural acceptance and not much of a legal argument against it, I’m thinking SCOTUS is ready to get it over with once and for all. Does anyone else agree?
155.
MightyAcorn | December 8, 2012 at 8:42 am
I wish I could agree, and I think we need to make loud demands for the universal right and recognition of marriage by the Court, but realistically I think we're going to get a combo of federal-recognition-but-State's-rights out of this one. It would be wonderful and helpful if Obama would show strong leadership in our favor–especially now that he's in his "lame duck" term–so that Congress would be motivated to improve on whatever the Supremes decide.
My prediction is that, although the merits will be argued at the same time as standing (so at least those arguments will be presented), SCOTUS will deny standing and therefore the marriage equality effects will be limited. They've been itching to rule on initiative proponent standing for a long time I think, and the Prop 8 case provides the perfect out on two counts: finalizing their wishes on proponent standing, and keeping marriage equality a state-by-state determination.
I hope I'm wrong, of course. We need to start working now to get a Democratic majority in the House at the midterm election so we don't have to keep suing on a case-by-case and state-by-state basis. Congress can cure some of our issues faster than the court system if we can get the votes happening….
156.
NancyH | December 8, 2012 at 11:03 am
At first I was a little upset that marriage equality would not be determined in California until at least June.
But then I realized this case could be used to grant marriage equality nation wide effectively ending this bigoted bullcrap.
Now I’m not so disappointed with the outcome.
157.
Keith | December 8, 2012 at 11:16 am
I agree. I think it will be a broad ruling on the 14th Amendment question of equal protection. It will be a thunderclap ruling of historic proportion. They see where this is heading and they want the court to be viewed by history as somewhat in front of it, and not as being dragged behind it. DADT is already gone and marriage equality is now legal in nine states, and more nations each day around the world….they see the writing on the wall.
Now put that with the 10 cases on marriage equality during this session alone and it doesn't take a genius to see that they have no stomach for this nonsense to continue year after year, especially since they've ruled on 14 separate occasions that marriage is a fundamental right.
I believe they will give a broad ruling that the 14th Amendment protects gay couples. That ruling will not only give gay couples in California the right to marriage, but it will also sweep away every anti-gay marriage amendment in the states that have passed them, and then they will strike down DOMA and effectively end marriage discrimination in America, for good!
158.
Keith | December 8, 2012 at 11:23 am
I'm with you Brent. I'm sure it's bothering them that more nations around the world are ushering in marriage equality with each passing day, while gay couples in the oldest and most advanced democracy is still fighting for it. If that isn't bothering them, they have no business on that bench.
159.
Glen | December 8, 2012 at 12:21 pm
All very good points being made here.
Furthermore I think from a political perspective they may want to finally shut up the SocioCons before they literally kill the Republican party with this nonsense over the ensuing years. The longer the GOP has to be beholden to the far right on same-gender marriage equality, the harder it's going to become for them to win elections.
A broad ruling from the court affirming the equal rights of same-gender couples in marriage law, would give Republican lawmakers an easy out. They could continue to court the sociocons with empty promises directly to that constituency of amending the U.S. Constitution to overturn the ruling, but otherwise knowing such an Amendment will never happen, and then they can say their hands are tied without 2/3 majority in both houses that support it. Then for the most part they can ignore it and make no other efforts, and not turn off those in the middle by being overtly anti-gay.
Hence, the GOP STILL gets the far right religious nuts who will hope for an Amendment, without doing much of anything, and by virtue of not being so hostile to gay people, they will be more attractive to the middle.
Really any way you slice it, the BEST course of action left and right, is to rule broadly to strike down both DOMA and Proposition 8 and apply their ruling on a national basis.
I don't think the court (particularly those on the right) are adverse to taking into consideration the political ramifications of their ruling.
160.
Glen | December 8, 2012 at 12:33 pm
It is a bit backwards, however perhaps for efficiency reasons that's the way it works.
It's much easier to just pass a law, than it is to go through the often long and deliberative process of determining if it passes Constitutional muster first.
161.
bythesea | December 8, 2012 at 1:04 pm
I think so too, but of course worry about being excessively optimistic. I just feel like the cultural momentum is on our side.
162.
sneaks911 | December 8, 2012 at 1:05 pm
Since they are taking both cases, and both are arguing the equal rights/discrimination, is it/will it be possible for them to look at the trial fact finding in Perry as they rule on Windsor as well?
163.
Lance - Sacramento | December 8, 2012 at 1:05 pm
I have NEVER thought that SCOTUS would SOON force all 50 states to provide marriage equality, but consider this: If SCOTUS upheld Prop. 8, it would almost certainly have something to do with the claim that "it took no rights away from same-sex couples; it only took away the title of 'marriage.'" But if the Court simultaneously is striking down DOMA (or part of it), it would become painfully obvious to them that the title of "civil union" or "domestic partnership" in ANY state still provides very little "equality" if the term "marriage" has to be bestowed by a State in order to get the 1,138 Federal Benefits that come along with being in a legally recognized relationship! How then could they possibly justify letting civil unions or domestic partnerships be "enough?" It seems like they would have no choice but to go all the way to actual "marriage" for us. And requiring only the states with civil unions/domestic partnerships to convert them to Marriage is Constitutionally questionable. They would have to require Marriage Equality nationally, right? Thoughts???
164.
sneaks911 | December 8, 2012 at 1:10 pm
[youtube Q-XD2n74qHs&list=UUsCaL8IzdefyPDwp8JJm3mw&index=2 http://www.youtube.com/watch?v=Q-XD2n74qHs&list=UUsCaL8IzdefyPDwp8JJm3mw&index=2 youtube] This is a good discussion.
165.
Lymis | December 8, 2012 at 2:29 pm
Not a lawyer. They wouldn't have to if they rule on the merits, but they could choose to. Seem to me that if they declare that there is a fundamental constitutional right to marriage that includes same sex couples and/or that all laws in the nation regarding sexual orientation are subject to heightened scrutiny, they could strike down Prop 8 without discussing that aspect.
I don't know whether the Circuit Court's ruling would be binding on other states in the Circuit if the Court doesn't address the issue at all, but I would assume it would, but that if they don't address that now-you-see-it, now-you-don't aspect it wouldn't automatically bind other states in other circuits.
166.
Lymis | December 8, 2012 at 2:32 pm
But at the same time, a federal court would still have ruled that denying marriage equality is federally unconstitutional, and that could be the basis of a subsequent case. elsewhere.
167.
Anthony | December 8, 2012 at 3:44 pm
I'm thinking they will rely heavily on Loving v Virginia as a comparison in their opinion if they do legalize it. Holy crap I am so nervous. Eeek!!!!!!
168.
Anthony | December 8, 2012 at 4:05 pm
It's still pretty unbelivable that they chose the two biggest cases that would have the greatest effect on us – The Prop 8 case and the Windsor case. I swear I won't be able to sleep the night before they release the decision.
169.
Str8Grandmother | December 8, 2012 at 5:57 pm
Lance, that is an excellent point. Since they will be hearing these cases virtually back to back they will recognize that point also.
170.
Mike in Baltimore | December 8, 2012 at 6:18 pm
"I don't think the court (particularly those on the right) are adverse to taking into consideration the political ramifications of their ruling."
Taking anything into consideration means thinking. I have serious doubts that any of the far-right on SCOTUS even know how to, let alone participate in, thinking.
171.
Christie | December 8, 2012 at 6:53 pm
Me neither my friend
172.
Keith | December 8, 2012 at 7:12 pm
Thanks for the chuckle. I like the lightning idea. I will keep my fingers crossed.
173.
Carpool_Cookie | December 9, 2012 at 6:12 am
Jiminy CHRISTMAS!
174.
Carpool_Cookie | December 9, 2012 at 6:20 am
"…a new era of religious ideology…"
I've always known that was a possibility….but seeing it in PRINT like that just gave me the heebie-jeebies. Bleeeech.
I mean, actually, it's more serious than "bleeeech" could ever be, no matter how many e's I could add. It's a terrifying possibility that makes me want to cry : (
175.
Carpool_Cookie | December 9, 2012 at 6:23 am
Mmmmmmmm…….it's gets difficult when we begin to make blanket statements and generalizations. Are you saying you want to do away with our American court system, and the appeal process? Because speaking as an LGBT, that possibility scares me a hell of a lot more than not being able to MARRY.
176.
Carpool_Cookie | December 9, 2012 at 6:25 am
I hope you're right.
As a legal secretary, I find it very hard to place bets on which way a verdict or ruling will go. You simply never know. BUT, it seems pretty ridiculous in this day and age that they would formally begin crafting further discrimination into rulings. It would just be very DARK AGES!!!
177.
Carpool_Cookie | December 9, 2012 at 6:27 am
I think I understand the issues pretty well, myself….and I have to agree with you. I don't know whether to he happy or sad. It's all very…..momentous.
178.
sneaks911 | December 9, 2012 at 8:27 am
What's going on with the other DOMA cases? Were they denied? I have been looking for information on what happens next for them.
179.
Jacob Combs | December 9, 2012 at 9:25 am
Essentially, nothing happens with the other cases–they simply remain on the docket and the Court will likely take no action on them until ruling in Windsor. Then, perhaps, the Court will remand those other cases to the circuit courts to take care of in light of whatever the ruling is in Windsor.
180.
Eric | December 9, 2012 at 9:47 am
When Prop 8 was challenged after it passed, the California Supreme Court did rule that Prop 8 took away the right of same-sex couples to marry. It would be a little hard for proponents to claim otherwise.
181.
Mike in Baltimore | December 9, 2012 at 10:53 am
So Hawai'i doesn't count as a state?
Remember, DoMA was a direct response to the victory for marriage equality, as a result of a court ruling, then that court ruling was overturned by the voters when they passed an amendment to the state Constitution allowing the state legislature to outlaw marriage equality.
Want to stick with that "no other state has ever legalized marriage equality via the court and subsequently delegalized it via ballot initiative" comment?
The ONLY major differences between the two states is that in California, many thousands were able to marry, but none in Hawai'i; and in Hawai'i, action taken by the state legislature can overturn the statute, or a state court can overturn it, or a Federal court can overturn it, but in California's case, it will take either Federal court action, or a vote by the people deleting the provision stuck into the state Constitution.
182.
Mike in Baltimore | December 9, 2012 at 10:58 am
It directly affects them, though. In effect, that means they are DIRECTLY involved in this particular suit.
183.
Mike in Baltimore | December 9, 2012 at 11:09 am
Sad news maybe for you, but possible GREAT news for everyone in the 41 states who cannot even hope for marriage equality yet.
184.
Stefan | December 9, 2012 at 11:12 am
Or else they essentially will be resolved assuming Section 3 is shot down, which most predict is the likely outcome.
185.
Stefan | December 9, 2012 at 11:14 am
And by June that number will for sure be lower!
186.
Stefan | December 9, 2012 at 11:17 am
The state court in Hawaii can't legalize same-sex marriage there. That was what the constitutional amendment specified.
187.
Mike in Baltimore | December 9, 2012 at 11:19 am
It doesn't tell us anything.
The four votes could have come from the conservatives, hoping to uphold both Prop H8 and DoMA, and thinking they have Kennedy on their side.
Or they could have come from the liberals, hoping to overturn both Prop H8 and DoMA, and thinking they have Kennedy on their side.
188.
Mike in Baltimore | December 9, 2012 at 11:35 am
Again, Maryland has had a super-majority of Democrats in the state legislature, and a Democratic Governor for six years now, and it still took four attempts to get marriage equality out of the legislature.
Just because a state has a majority (one way or the other) is NOT indicative of how the state legislature will vote. The more Democrats in the legislature, and a Democratic Governor, the better for the GLBT community, but it still is NOT definitive.
189.
Mike in Baltimore | December 9, 2012 at 11:45 am
No, unless the anti-gay governor wanted to tempt the court with a contempt of court ruling.
The anti-gay governor could start a new court case and not be in contempt of court (but on what grounds?). But outright snubbing of the nose at a court ruling would be about the lowest form of expressing contempt of the court's ruling. Not many judges are in favor of court orders being snubbed.
190.
Mike in Baltimore | December 9, 2012 at 11:56 am
Could a new bill be introduced (with slightly different wording), passed, and then he refuses to sign or veto, allowing the bill to go into effect?
I don't know the mechanics of NJ statutes, so the above might not be feasible. Is the NJ Governor required to sign the legislation for it to go into effect, or can he do as Presidents are allowed – not sign, not veto, and let it go into effect, unless Congress has adjourned, thus a pocket veto?
191.
Mike in Baltimore | December 9, 2012 at 12:17 pm
"If the Supreme Court denies cert to Brewer, the case goes back to the district court. . . ."
Maybe, maybe not. If SCOTUS denies cert on standing and does NOT remand, the case is dead. If they deny cert on standing and tell the court it can rehear the case with parties that have standing, then the decision might, or might not, come out the same, IF the court or the party without standing finds a party with standing to take the case.
In other words, dismissing (with or without remand) a case does NOT mean the case is automatically sent back to the District Court.
And how many times did you ask people if you could supersize their order this past week?
192.
Mike in Baltimore | December 9, 2012 at 12:23 pm
I see childish games are being played with the thumbs up and thumbs down here.
One hour ago, my comment was +4, now it's -26. Were you a participant in the childish games, ST?
And if so, was it because I posted the comment, or because of the content of the comment? If the content, then be adult enough to show if/how what I posted is incorrect.
193.
cpnlsn | December 9, 2012 at 1:25 pm
Actually this is a cardinal point and why the issue is much more complicated than first appears. The striking down of DOMA s3 creates a very unusual situation in a number of respects.
Firstly it gets rid of civil/domestic partnerships as an 'everything but mariage' option within states (as an argument against full marriage rights). In that alone it puts rocket boosters on the arguments for marriage equalty at the state level. (It would also lead to economic and demographic consequences as firms and individuals relocated to marriage equality states).
Secondly it opens up a stark differentiation between married and unmarried that makes the constitutional question across all states much more acute. From that angle appears SCOTUS may feel it does need a national solution.
The logic of the case can be seen to point to a national solution; the politics still point to something more minimal.
A final point is this. SCOTUS might be expected to wait until more states adopt marriage equality. Left to their own devices some might (RI, NJ, IL, DE and so on). But in most of the states that have constitutional amendments the bar is very high indeed and is to all intents and purposes insuperable, requiring action by GOP controlled legislature in very red states. This is unlikely to occur – there will still be this enormous bloc of states without marriage equality (or even civil partnerships for that matter) which is unable to change over time. The mass of opposing states is likely to be relatively immovable – ironically had there been State legislative DOMA's rather than constitutional amendments this reasoning might be different. From this perspective the two cases (DOMA and Prop 8) become interlocking and definitely open up a bigger result. Interesting times ahead.
194.
Mike in Baltimore | December 9, 2012 at 4:32 pm
Actually, a state court in Hawai'i can, as it wasn't the amendment to the state Constitution that overturned marriage equality. The amendment allowed the state legislature to define marriage, which it did as 'a man and a woman'.
Unless state courts in Hawai'i aren't allowed to determine if a state law goes against the state Constitution or the Federal Constitution. I don't think so, though, as the state Supreme Court ordered the district court to reconsider the decision it came to in the case "Baehr v Lewin" to reconsider it under other provisions of the state Constitution, and if it violated the other provisions, then the law was null and void.
Maybe this link will help you: http://www.tutorgigpedia.com/ed/Hawaii_Constituti… (copy and then delete to "%28" and "%29" to get the link to work).
195.
Mike in Baltimore | December 9, 2012 at 4:44 pm
Not exactly true Zak, as DoMA doesn't disallow any state from allowing or not allowing marriage equality.
However, if Prop H8 is overturned on broad grounds, and Sections 2 and 3 of DoMA are also overturned, then any same sex couple can get married in any state it is allowed, and then move to any other state and still have that marriage recognized by the state AND Federal government.
Still not the ideal solution (better would be marriage is marriage, no matter what the makeup of that marriage), but one heck of a lot better than today.
196.
Mike in Baltimore | December 9, 2012 at 4:52 pm
The addition of the standing issue, then allowing cert, means that they will look at both the reasons for the case AND look at standing.
If they had ONLY wanted to look at standing, they would have accepted cert ONLY on the issue of standing, or dismissed the cases at conference because they determined that one party or another didn't have standing.
197.
Stefan | December 9, 2012 at 6:34 pm
Yes what you said would be allowed.
198.
Bob | December 9, 2012 at 10:21 pm
The court is deciding to rule now. They have not put a stay or moratorium on current marriages in states where marriage equality is legalized. That is evidence enough to me that marriage equality will be the law of the land in the nation. Kick ass.
199.
F Young | December 10, 2012 at 7:02 am
One might have expected that today's order list would show that certiorari was denied in Brewer v Diaz, and that the other DOMA cases were being held until they are remanded after the Windsor decision expected in June 2013, but in fact today's order list does not mention Diaz or any of the DOMA cases.
Perhaps they will be mentioned in miscellaneous orders later this week, or will be distributed again to the January 4 conference.
http://www.supremecourt.gov/orders/ordersofthecou…
200.
MightyAcorn | December 10, 2012 at 8:47 am
I'm not sure what point you're making. The merits of the case will be briefed and heard at the same time. Whether they issue a ruling on the merits remains to be seen, as that depends whether or not they grant standing.
My question was about whether or not SCOTUS could delay the case beyond this session by remanding it in part, though it seems more logical that they would just deny standing instead of kicking it back to the Ninth for some kind of further consideration.
I also addressed the question to those here who have some knowledge and experience with SCOTUS history and procedure, but thanks for chiming in anyway.
201.
fiona64 | December 10, 2012 at 8:56 am
And on the other hand, you are still not a lawyer … so stop pretending to be one.
202.
fiona64 | December 10, 2012 at 9:01 am
It is significant that Michael Ejercito, writing here as "Shoes Thrower" is not now, nor has he ever been, an attorney. Therefore, one may ignore his homophobic trolling.
203.
SHOES THROWER | December 10, 2012 at 9:48 am
In an ultimate sense, as in the Supreme Court hearing the merits of Diaz after the merits were decided by the Ninth Circuit, you would be right.
In the district court that will decide Diaz, a favorable ruling to the plaintiffs is mandated by Perry.
204.
SHOES THROWER | December 10, 2012 at 9:50 am
If it denies cert to Brewer, the preliminary injunction remains, and the case will be decided on the merits. A denial of cert will not address any standing issues in Brewer.
205.
Keith | December 10, 2012 at 2:49 pm
The Dark Ages would be very appropriate. Many people don't understand the huge consequences of a ruling that upholds either of these cases.
206. Prop 8 Trial Tracker &raq&hellip | December 13, 2012 at 8:49 pm
[...] Friday the Supreme Court decided it will hear challenges to Prop 8 and Section 3 of the Defense of Marriage Act. It took up the Hollingsworth v. Perry and [...]
207. Prop 8 Trial Tracker &raq&hellip | December 14, 2012 at 1:00 pm
[...] for the proponents of the law to take their case is the Supreme Court. On December 7, the Court announced that it would review the lower courts’ decision sometime before its summer recess in June [...]
208. Prop 8 Trial Tracker &raq&hellip | December 18, 2012 at 1:37 pm
[...] Friday, in a late afternoon order, the U.S. Supreme Court announced that it will take up the Prop 8 case and the Windsor challenge to DOMA and issue rulings on the [...]
209. Equality On Trial »&hellip | March 4, 2013 at 6:36 am
[...] Court has asked the parties to address some initial questions related to Article III standing and jurisdiction. And the Court appointed an [...]
210.
www.crazypixx.de | May 17, 2013 at 4:39 pm
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