As I’ve noted before, there are a number of cases currently pending before the Supreme Court dealing with the issue of the same-sex marriage. At least two of them deal with the question of whether Section Three of the Defense Of Marriage Act, which defines marriage as being between a man and a woman for purposes of Federal aw, is constitutional, and one deals with the rulings from the 9th Circuit Court of Appeals regarding California’s Proposition 8. At least according to the Court’s current calendar, the Justices will meet this week to decide whether to accept the appeals in all of these cases:
WASHINGTON — After two decades in which gay rights moved from the margin to capture the support of most Americans, the Supreme Court justices will go behind closed doors this week to decide whether now is the time to rule on whether gays and lesbians have a constitutional right to marry.
For justices, the issue is not just what to decide, but when to decide it. In times past, the court has been faulted for waiting too long or moving too quickly to recognize constitutional rights.
The justices did not strike down state bans on interracial marriage until 1967, 13 years after they had declared racial segregation unconstitutional. Yet in response to the growing women’s rights movement, the court in 1973 struck down all the state laws restricting abortion, triggering a national “right to life” movement and drawing criticism even from some supporters that the Roe vs. Wade ruling had gone too far too fast.
Now, the justices must decide whether to hear an appeal from the defenders of California’s Proposition 8, the 2008 voter initiative that limited marriage to a man and a woman..
At the same session Friday, the court will sift through several appeals to decide whether legally married gay couples have a right to equal benefits under federal law. Appeals courts in Boston and New York have struck down the part of the Defense of Marriage Act that denies such a right, and the justices are almost certain to take up a case to resolve that question.
The Proposition 8 case, known as Hollingsworth vs. Perry, presents justices with the more profound “right to marry” question.
Opinion polls now show a majority of Americans favor marriage equality, and support for it has been growing about 4% per year. On Nov. 6, voters in Maine, Maryland and Washington approved same-sex marriage, bringing the total to nine states.
Does the shift in public opinion suggest the court should uphold gay marriage now, or wait for more states, perhaps a majority, to legalize it?
Notwithstanding the well-known comment that the Supreme Court follows the election returns, I am not convinced that the success that marriage equality had at the ballot earlier this month is going to determine whether the Justices decide to accept these cases. As we all are, this is an issue that is become more and more important in the United States, and one that has now obtained the support of at least a narrow majority of the American people according the polls. However, I honestly don’t think that this is going to be what motivates them in deciding whether or not to accept a case. Instead, they are likely to look to more esoteric legal issues.
As I’ve noted in several posts on this issue before, I don’t think there’s any question at all that the Justices will accept the appeals of the various cases dealing with DOMA. As a general rule, when there are multiple Federal Courts issuing rulings that a law passed by the United States Congress is unconstitutional, the Supreme Court is going to accept that case. If they didn’t, then we’d end up with a situation where a particular law would be considered valid in some parts of the country, at least as far as the Federal Courts are concerned, and invalid in others. So, I would expect that the Court will accept the appeals on the DOMA cases, and will likely consolidate them for the purposes of appeal since they all tend to raise the same issue.
The Proposition 8 case raises different issues. While the original opinion in this case from the District Court was quite far-reaching in its argument that the 14th Amendment itself made any law against same-sex marriage invalid, the opinion of the 9th Circuit pulled back from that precipice and argued that the principle reason that Proposition 8 was unconstitutional was that the state, via the California Supreme Court, had granted a civil right that was then repealed via a popular referendum. This was a very narrowly tailored, fact specific, opinion that arguably only applies to the state of California, or any state that has legalized same-sex marriage and then repealed it. The impact of the 9th Circuit’s opinion in this case is, arguably, very limited and may be reason enough for the Justices to decide to forego accepting the appeal. This would, of course, mean that same-sex marriage would be the law of the land in the nation’s most populous state.
There is another possibility to keep in mind. The fact that these cases are on the Court’s calendar for a conference this week does not mean that we’ll hear of a decision this week. As that did just a couple weeks ago, the Court could decide to defer decision on whether or not to accept the appeals in these cases to a future date. At the very least, that would indicate that there are not four Justices who want to hear any of these cases, or perhaps, that they’d like to defer the entire issue to the October 2013 term.
