Law Links: Supreme Court will Consider Gay Marriage Cases Next Year

The Supreme Court has announced that it will consider two cases involving Gay Marriage to be argued in March and decided in the summer of 2013.

CBS News:

The Defense of Marriage Act (DOMA), passed by Congress and signed by President Clinton in 1996, prohibits federal recognition of same-sex marriages. Both the First and Second Circuit Court of appeals have struck down a provision of the law denying federal benefits, like Social Security benefits or the ability to file joint tax returns, to same-sex couples legally married. Because of these lower court rulings, DOMA has been declared unconstitutional in some regions of the country but not others -- an issue the Supreme Court now has a chance to rectify by reviewing the Second Circuit decision.

The court will also consider California's Proposition 8, the ballot initiative banning same-sex marriage that voters passed in 2008. Prop. 8 passed after the California Supreme Court granted same-sex couples the right to marry, putting California voters in the unique position of taking away rights granted by the court. After Prop. 8 passed, a federal court followed by the Ninth Circuit Court of Appeals said Prop. 8 was unconstitutional.

The high court is expected to hear arguments in both cases in March and issue rulings over the summer.

From USA Today:

"It's been our belief all along that the ultimate fate of Proposition 8 will be in the hands of the Supreme Court," said Andrew Pugno, general counsel for the advocacy group ProtectMarriage, which sought the high court's intervention.

"I fully believe that this court's going to come down on the side of freedom and equality," said Chad Griffin, president of the Human Rights Campaign, which fights for gay, lesbian, bisexual and transgender rights.

. . . Even if the court sides with gays and lesbians, opponents of same-sex marriage say it won't end the debate.

"The majority of Americans who have voted to protect marriage as the unity of a man and a woman are never going to go away," said Brian Brown, president of the National Organization for Marriage. A Supreme Court ruling in favor of same-sex marriage, he said, "would launch a national culture war."

From Reuters

Meeting in private on Friday at their last weekly conference before the court's holiday recess, the justices considered requests to review seven cases dealing with same-sex relationships. Five of them were challenges to the federal marriage law, one to California's gay marriage ban and another to an Arizona law against domestic partner benefits.

The court had been widely expected to take up at least one of the challenges to the federal marriage law, given that two federal appeals courts had found the law unconstitutional. Less clear was what the court would do with the California gay marriage ban.

"Taking both a states' rights case like Prop 8, and a case involving Congress's authority in the DOMA ... suggests that the court is ready to take on the entire issue, not just piecemeal it," said Andrew Pugno, a lawyer for the individuals defending California's gay marriage ban.

The Blog of Legal Times

"I had thought the Court would take it in stages instead of doing DOMA and Perry at the same time," said Paul Smith of Jenner & Block, who had assisted in another DOMA challenge pending before the justices. On the DOMA grant of review, he added, "The arguments are pretty much the same in all the cases. It makes sense in some ways to have a decision below from the court of appeal."

Professor Douglas NeJaime of Loyola Law School, Los Angeles called the combination of grants in Perry and Windsor "really interesting" and added, "It's really hard to know exactly what the justices are thinking. Windsor is the DOMA case that presents the heightened scrutiny question and it was raised in Perry but the Ninth Circuit didn’t go there. The justices could be interested in saying its time to say sexual orientation classifications merit heightened scrutiny."

On the other hand, NeJaime said, "They could be prepared to split the difference and say a federal law like DOMA that denies recognition to valid state law marriages is unconstitutional, but not be prepared to find that states can't prohibit marriage themselves."

A third possibility, according to NeJaime, is that the justices will find both Prop 8 and DOMA Section 3 unconstitutional under the Constitution's lowest scrutiny—rational basis review.

Federal Judge Strikes Down Defense of Marriage Act

Big News: A federal judge appointed by George Bush has struck down the GOP's landmark Defense of Marriage Act, which states that the only real marriage is that of one man and one woman.

This ruling comes one day after it was reported that John Boehner and the House Republicans had spent $1.5 million defending DOMA.

From Huff Post

House Republican leaders have effectively spent all the money they allotted themselves: BLAG members House Speaker John Boehner (R-Ohio), House Majority Leader Eric Cantor (R-Va.) and House Majority Whip Kevin McCarthy (R-Calif.) last year signed a $1.5 million contract with attorney Paul Clement to represent them in cases involving DOMA, or the federal ban on same-sex marriage.
To date, Republican leaders have intervened in 14 DOMA cases. They have lost five in a row.

And now they've lost again, in a huge victory for equal rights.

Today's ruling marks one step closer to the day when all American families can enjoy the blessings of equal protection under the law. #DOMA

— Nancy Pelosi (@NancyPelosi) October 18, 2012

Complete Ruling Here (PDF)

W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

From Think Progress

This is a really big deal. Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification. This is the same very skeptical standard afforded to laws that discriminate against women. If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.

One unfortunate caveat is necessary: Judge Chester Straub, a Clinton-appointee, dissented. Nevertheless, this marks the second time that a prominent conservative court of appeals judge declared DOMA unconstitutional, and it relies on a sweeping rationale in doing so. Supporters of equality have a great deal to celebrate today.