The Court agreed to hear the Windsor v. United States case, which was brought by a lesbian widow. The Second Circuit Court of Appeals invalidated DOMA in a 2-1 decision finding that the federal government did not have a legitimate interest in treating same sex couples differently.
It’s another legacy-defining case for the Roberts Court and extraordinarily tricky one. The rapidly growing public support for same sex marriage in many parts of the country leaves little doubt that it will eventually be legalized in a substantial number of states. For gay marriage supporters, however, DOMA, signed by Bill Clinton, remains a political roadblock at least so long as Republicans control the House of Representatives. That leaves the federal courts as the best avenue for eliminating the law. The question is whether the justices will lead the way or leave the roadblock in place.
“I don’t think justices get in this position very often because everybody knows what the judgement of history is going to be,” Lucas Powe, a Supreme Court historian at the University of Texas-Austin School of Law, told TPM before the court’s announcement. “I don’t think think anybody doubts that gay marriage is coming — it’s only the issue of time. This is one of those times where no matter what you think you know you’re going to be wrong if you oppose it.”
Secondly, they will hear arguments on challenging California's Prop 8 banning same-sex marriage at the state level.
The Supreme Court announced on Friday that it will take up California’s Proposition 8, the 2008 ballot measure that amends the state’s Constitution to ban same sex marriage.
The Court will hear oral arguments in next spring and render a decision by the end of June. At issue is whether the U.S. Constitution prohibits a state from codifying a ban on recognizing same sex marriages.
Windsor is the big one, but the Prop 8 case also means that SCOTUS wants to decide the federal issues and the states' rights issues separately as Adam Serwer explains, and the stakes couldn't be higher.
The DOMA case asks the justices to strike down the federal law that dictates which marriages are valid. Even better for supporters of same-sex marriage: Of the several DOMA cases the court could have taken, it decided on Windsor v. United States, in which plaintiff Edith Windsor was unable to claim an estate-tax deduction after her female partner died. Between striking down part of a heavy-handed federal statute and helping someone get a tax cut, it's the kind of same-sex marriage case even a conservative justice could love. Most importantly, from the point of view of getting the requisite five votes, striking down DOMA would not prevent states from banning same-sex marriage.
The Prop. 8 case argues something much broader, however: It claims there is a fundamental right to same-sex marriage in the Constitution, and that any attempt to ban same-sex marriage violates the 14th Amendment. The Ninth Circuit's ruling was written so narrowly that if the Supreme Court had decided not to take the case, then the Ninth Circuit's decision would have affirmed the rights of same-sex couples in California alone. But if SCOTUS were to affirm the constitutionality of California's ban on same-sex marriage, the ruling could well apply to any such law nationwide.
Not only that, the American Prospect's Gabriel Arana wrote in 2009 that "defeat could legitimize such discrimination against LGBT Americans, making it far more difficult to sue for parental or housing rights."
So the question is "Can discrimination against LGBT Americans be codified into law and still pass Constitutional muster?" The courts have let stand such discrimination for ex-convicts for instance at the state level (denial of right to vote, sex offender registration), but not the national one. (Civil Rights Act, Voting Rights Act).
At least, so far.
It's in the hands of SCOTUS now, and this June should be rather exciting. It's possible same-sex marriage could become a national right. On the other hand, it could mean the annulment and end of current same-sex marriages across the country for generations.
If you had to ask me to hazard a guess, I'd say DOMA is struck down, but Prop 8 stays, meaning that states will have the right to ban same-sex marriage if they want to, but that the feds must agree to abide by treating those same-sex marriages in states that allow it as full marriage with all federal benefits.
In other words, punt to the states, go play golf.
We'll see.
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