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  THE VERDICT

Supreme Court To Tackle Gay Marriage This Week (We Mean It This Time!)

After a ten-day postponement, the Supreme Court will this week decide whether or not to address marriage equality in its new term. The Court was originally scheduled to make its decision on November 20, but later changed the date to Friday, November 30.

The judges have before them the opportunity to rule on the overturning of California’s Proposition 8, which limits marriage to between a man and a woman. There are also several appellate-court rulings questioning the constitutionality of the Defense of Marriage Act.

But is now the right time to rule?

More than half of Americans support same-sex marriage, and marriage-equality ballot initiatives just won in Maine, Maryland and Washington. There’s momentum on the ground, and a poll on the L.A. Times website indicates 77% of respondents believe the Court should rule on marriage equality now, while only 23% don’t.

But are we rushing it? The Supreme Court is not a court of public opinion and, as the Times suggests, if conservative justices like Antonin Scalia want to revisit Perry v. Brown, it can only be to overturn the federal-court ruling thatdeclared it discriminatory.

Well, one way or another, the Supreme Court is expected to make the call on Friday and announce its decision by December 3.

Two of the most important civil-rights cases of the past half-century were Loving v. Virginia and Roe v. Wade. The first has been (almost) universally embraced as common sense. The second has sparked a decades-long battle that’s seen women’s reproductive rights under constant threat.

It’s not just whether the justices pick up the gauntlet on Friday and then rule for equality. It’s that America sees the wisdom in their verdict.

Do you want the Supreme Court to tackle marriage equality this term? Do you think we’ll win? Render your verdict in the comments section.

By:           Dan Avery
On:           Nov 26, 2012
Tagged: , , , ,

  • 23 Comments
    • Mjl-428
      Mjl-428

      Can we please get this over with? I mean it’s inevitable so this time the Supreme Court needs to just deal the final blow to DOMA and Prop 8 so we can get on with our lives

      Nov 26, 2012 at 7:05 am · @ReplyReply to this comment ·
    • Jon
      Jon

      Obama is the president again, we could wait for him to replace a conservative justice or two with some liberal ones to make the decision more of a sure thing, no?

      Nov 26, 2012 at 7:09 am · @ReplyReply to this comment ·
    • MikeE
      MikeE

      Justices shouldn’t be “liberal” or “conservative”.

      The law is neither. It “is”.

      Justices should read the law and interpret it. Period.

      Any judge who believes that his religious convictions should be guiding his legal judgments, should be immediately removed from the bench, for this is a person incapable of impartiality.

      And once a legal right is given, there should be absolutely no means for that right to be removed.

      Nov 26, 2012 at 7:27 am · @ReplyReply to this comment ·
    • jerry_pritikin
      jerry_pritikin

      Now is the time for all good justices to come to the aid of the citizens of this country! If it worth while having,its worth while waiting for, except we been waiting much too long.Time for the Supreme Court Justices to say I do!

      Nov 26, 2012 at 7:45 am · @ReplyReply to this comment ·
    • Dakotahgeo
      Dakotahgeo

      If the SCOTUS sees this as purely a states’ rights issue, they will not, nor should they rule on Prop 8. If they rule DOMA unconstitutional, Prop. 8 will be history anyway. Kind of a win-win situation. I agree, throwing Prop 8 and DOMA out is long past due. Maybe the TX malcontents, et all, and the Prop 8 backers can start their own nation on some deserted island noone can, or wants to, find!

      Nov 26, 2012 at 9:20 am · @ReplyReply to this comment ·
    • Dionte
      Dionte

      Justices, do what’s right and may the odds forever be in your favor.

      There are many odds that you will want to be.

      Nov 26, 2012 at 10:03 am · @ReplyReply to this comment ·
    • Dumdum
      Dumdum

      Wake me when it’s over. This sh** is wearing me out. We shouldn’t have to fight so hard for every tiny little scrap of dignity and respect.

      Nov 26, 2012 at 11:21 am · @ReplyReply to this comment ·
    • Cam
      Cam

      The last two gay rights decisions have gone our way. AND Justice Roberts suprised the right wing by supporting Obamacare in his decision.

      I have a feeling that Scalia and Thomas will do anything they can to keep these cases out of the court.

      Nov 26, 2012 at 12:39 pm · @ReplyReply to this comment ·
    • DuMaurier
      DuMaurier

      @Jon: Well, we COULD wait for more “reliable” justices, but on the other hand, even if I were as pessimistic about this court as you seem to be (and I’m not) and a bad decision comes down, bear in mind it could be reversed once those “better” justices are appointed. Remember what happened to Bowers v Hardwick; in just a few years it was replaced by Lawrence v Texas. I say cross our fingers and go for it now.

      Nov 26, 2012 at 12:49 pm · @ReplyReply to this comment ·
    • nowliveit
      nowliveit

      @Jon: Problem with this is…the conservative judges are younger than the liberal judges, two of whom have indicated they may want to leave. So, as it stands, Obama can keep the balance as it is.

      Nov 26, 2012 at 1:22 pm · @ReplyReply to this comment ·
    • jsancheznv
      jsancheznv

      My research suggests that the Court is not ready to find a federal right to same-sex marriage at this time (certainly not on the first set of marriage cases to reach the docket). However, not all is grim; in fact, there will be reason to celebrate. I have recently read a sleuth of holdings in previous cases and (while I am no Nate Silver) I do have a few predictions:

      1-Prop 8: Good possibility the court will decline the proponents request to hear the case;

      2-AZ domestic partnership case (Diaz v. Brewer) (State of Arizona rescinds domestic partnership benefits for state employees after (emphasis on after) such benefits were already granted by the previous governor)): Good possibility the court will decline the proponents request to hear the case.

      Notice the reasoning in the holding in both cases above from the 9th Circuit is that you cannot takes rights away once they are granted. If the court does grant certiorari to hear the above case, I predict the court (well a majority of the court) will find there is no rational basis to uphold Prop. 8 or Governor Brewer’s wishes in the Arizona Case. Keep in mind it only takes 4 justices to agree to hear a case, so even if the court ultimately agrees to hear the two above cases, there is still a good chance 5 of the justices will simply find that there is no rational basis to take away a right that was already granted.

      3-DOMA-Keep in mind only Section 3 of DOMA (federal recognition/benefits) is being challenged. There is a very high probability the court will grant certiorari and consolidate all the DOMA cases before the court. While the 2nd Circuit has ruled that sexual orientation is a suspect class that warrants heightened review of scrutiny and struck DOMA down on that basis in the 2nd Circuit, I predict the court will NOT elevate sexual orientation to a suspect-class while at the same time striking section 3 of DOMA down on the basis that there is no rational basis (which means that sexual orientation will continue to be a non-suspect class). My prediction here stems from the court’s analysis in Romer and Lawrence. In both those cases the court basically created a (heightened) rational basis standard that only appears to apply to sexual orientation (which Scalia was sure to mention is his dissent in Lawrence). Once Section 3 is stricken and the gay rights organizations start challenging the rest of DOMA (recognition of same-sex marriage by states that ban them) DOMA will eventually be stricken in its entirety. With regard to sexual orientation being elevated to a suspect or quasi-suspect class, I expect that will happen but only once Obama is able to replace a conservative justice with one of Obama’s choosing.

      Also, please keep in mind that Justice Roberts is a wild card. According to a New York Times article, “Judge John G. Roberts Jr., the (then) Supreme Court nominee, gave advice to advocates for gay rights a decade ago, helping them win a landmark 1996 ruling protecting gay men and lesbians from state-sanctioned discrimination. http://www.nytimes.com/2005/08/05/politics/politicsspecial1/05roberts.html?pagewanted=all

      If Roberts believes sexual orientation is a suspect class, my above analysis goes out the window and the Sup. Ct. may surprise us and agree with the 2nd Circuit that sexual orientation is a suspect or quasi-suspect class.

      Best of luck to everyone as we wait for the actual outcomes.

      Nov 26, 2012 at 3:17 pm · @ReplyReply to this comment ·
    • erikwm
      erikwm

      @jsancheznv: I think your reasoning is pretty solid, but would just elaborate on DOMA. To find a constitutional right to same-sex marriage, the court would have to overturn precedent in Baker v. Nelson. If the court did so, it would have the effect of striking down not only DOMA, but also every state constitutional ban on gay marriage, as well. Because of the precedent established by Baker, none of the lower or appellate courts have been able to claim a constitutional right for same-sex marriage. DOMA has repeatedly been struck down for violating substantive due process under the Fifth Amendment, with most courts applying a rational basis test and the 2nd Circuit elevating it to intermediate scrutiny in the Windsor case.

      I think SCOTUS is likely to stick with that reasoning, if they do indeed strike down section 3 of DOMA. Overturning Baker and proclaiming a constitutional right to same-sex marriage, in effect legalizing it in every state, would be extremely bold and uncharacteristic of the Roberts Court.

      Nov 26, 2012 at 4:29 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @MikeE: Your sentiments, noble as they are, romanticize the law and those who practice it, I think.

      When you say the law simply “is,” what body of law are you referring to? If you’re talking about speed limits, age requirements for holding office, and other clear and bright-line rules that leave literally no room for interpretation, I agree. But we’re not really talking about clear-cut rules when we discuss gay rights – we’re talking about the interpretation of our Constitution, which itself is an incredibly vague, often indeterminate text written and shaped by people who probably could not have conceptualized a right to gay marriage let alone the moral acceptance of homosexuality.

      Its interpretation is done by human beings subject to the same prejudices that plagued the men who wrote it, and it makes no difference if they’re wearing robes or not. Wiki almost any provision in the Bill of Rights and read it – I promise you, you will see how easy it is to come up with widely divergent, but equally reasonable interpretations of it. It all depends on how you choose to construct the text. Does the plain meaning matter, or is it the intention of the drafters that counts? What about the purpose of the text? Or instead, should it be understood in the context of modern times without regard for the people or society that produced it? Or even further still, must one apply the letter of the law if to do so would promote injustice?

      Nov 26, 2012 at 4:40 pm · @ReplyReply to this comment ·
    • murphy0071
      murphy0071

      Injustice Scalia has already annouced his vote. He is a traitor to the Supreme Court and the Constitution of the United States and should be hung on the steps of the U.S. Supreme
      Court.

      Nov 26, 2012 at 4:50 pm · @ReplyReply to this comment ·
    • Dumdum
      Dumdum

      @jwrappaport: Finally… Someone smart enough to articulate the truth that we can all understand. I have read all that stuff, and I am all like dude! This is so vague. What were they thinking? That we would be able to come together as a nation of millions, able to reach a concensus? Something that would change the lives of so many. They kept SLAVES for gawds sake!!! WHAT THE EFF. THAT WAS THEN. THIS IS NOW. I am so tired of the meat-loaf on Sunday crap. (Metaphor for you idiots who take words at face value. I get so tired of trying to explain stuff to you kids.) READ A BOOK FOR CHRISTS SAKE! Contrary to popular belief people used to think for themselves.

      Nov 26, 2012 at 5:29 pm · @ReplyReply to this comment ·
    • jsancheznv
      jsancheznv

      @erikwm I agree with your analysis that to find a ‘federal right’ to same-sex marriage the court has to overrule Baker. However, Baker (if my understanding is correct) is a case where there was mandatory appellate review of a decision from the Minnesota Supreme Court by SCOTUS as opposed to discretionary certiorari. My understanding is that the SCOTUS’s decision to dismiss Baker for “want of substantial federal question” (see below) ‘does’ constitute a decision on the “merits.” However, now that states are granting perfectly valid marriage licenses to same-sex couples, I would argue there is now is very much a federal question not rooted in federalism but in states’ rights and how states rights’ interact with federalism that must be decided (on the actual (real) merits this time) and that Baker is not dispositive. What I think is remarkable here (in a way that may not have substantive legal significance to the issue at hand) is the irony that the state that gave rise to the Baker decision (Minnesota) just voted through popular vote to reject a constitutional amendment to its state constitution that would have defined marriage in the same manner as the Minnesota Supreme Court did on October 15, 1971. If I were one of the four liberal justices sitting on the Sup. Ct. during the upcoming conference on whether to accept the marriage cases, I would politely (yet gleefully) inform all my colleagues that Baker simply does have any precedential value whatsoever and is easily distinguishable from all the DOMA cases, Prop. 8., and Diaz. Fascinating if you ask me :-)

      Supreme Court of the United States

      Baker et al.
      v.
      Nelson.

      October 10, 1972
      No. 71-1027.
      Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question. Reported below: 291 Minn. 310, 191 N. W. 2d 185.

      Nov 26, 2012 at 7:01 pm · @ReplyReply to this comment ·
    • Dumdum
      Dumdum

      @jsancheznv: You guys are making my head hurt. Can I just make you some cookies? Then we can take a break, get a B.J. and start tomorrow??? It has been what? A couple thousand years since being Gay was cool ???

      Nov 26, 2012 at 8:13 pm · @ReplyReply to this comment ·
    • Charli Girl
      Charli Girl

      @Dumdum:
      ok ill have some of those cookies and then wait for MichaelAngelo Singorile to weigh in on it!!!!
      He does a much better job of explaining it!!! :-) I dunno what I wouldve done without him during
      the election!!!!

      Nov 26, 2012 at 9:02 pm · @ReplyReply to this comment ·
    • jsancheznv
      jsancheznv

      @ jwrappaport You raise really good points in your post. It is also noteworthy to remember that how an issue is framed (i.e. language) is also very important and outcome determinative. Case on point: Bowers = no constitutional right to homosexual sodomy v. Lawrence = “intimate, adult consensual conduct at issue (homosexual sodomy) [is] part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections. …Bowers was not correct when it was decided, and it is not correct today.”

      Nov 26, 2012 at 9:13 pm · @ReplyReply to this comment ·
    • Dumdum
      Dumdum

      @jsancheznv: @jsancheznv: I like sodomy. Would you try that on me?…Sod like earth. Oh! I am suprised, me. Sod-oh- me. I think our baby would be really smart. Please laugh, because I think that is really all we can ever do.

      Nov 26, 2012 at 10:17 pm · @ReplyReply to this comment ·
    • Red Meat
      Red Meat

      @MikeE: The constitution is pretty liberal if you haven’t notice, with justice, liberty, and equality fr all.

      Nov 26, 2012 at 10:31 pm · @ReplyReply to this comment ·
    • jsancheznv
      jsancheznv

      @Dumdum You are correct. Some things are completely out of our hands. You seem to have a god attitude. :-)

      Nov 26, 2012 at 11:14 pm · @ReplyReply to this comment ·
    • Jean
      Jean

      My comment will not influence the court. But I am hoping they don’t take the Prop 8 case and
      do take the DOMA cases.

      I expect they will take up both and I pray that PROP 8 is not affirmed.

      IT probably is all up to Justice Kennedy who is a Republican even though he has affirmed gay rights before.

      This is not the ideal time for the court to be reviewing gay marriage as they are very conservative and its been only a very short time that this idea has been a majority American value.

      Nov 27, 2012 at 2:39 am · @ReplyReply to this comment ·

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