By MARK SHERMAN
WASHINGTON (AP) — The running fight over gay marriage is shifting from the ballot box to the Supreme Court.
Three weeks after voters backed same-sex marriage in three states and defeated a ban in a fourth, the justices are meeting Friday to decide whether they should deal sooner rather than later with the claim that the Constitution gives people the right to marry regardless of sexual orientation.
The court also could duck the ultimate question for now and instead focus on a narrower but still important issue: whether Congress can prevent legally married gay Americans from receiving federal benefits otherwise available to married couples.
The court could announce its plans as soon as Friday afternoon. Any cases probably would be argued in March, with a decision expected by the end of June.
Gay marriage is legal, or will be soon, in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — and the District of Columbia. Federal courts in California have struck down the state's constitutional ban on same-sex marriage, but that ruling has not taken effect while the issue is being appealed.
Voters in Maine, Maryland and Washington approved gay marriage earlier this month.
But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example in May. In Minnesota earlier this month, voters defeated a proposal to enshrine a ban on gay marriage in that state's constitution.
The biggest issue the court could decide to confront comes in the dispute over California's Proposition 8, the constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. The case could allow the justices to decide whether the U.S. Constitution's guarantee of equal protection means that the right to marriage cannot be limited to heterosexuals.
A decision in favor of gay marriage would set a national rule and overturn every state constitutional provision and law banning same-sex marriages. A ruling that upheld California's ban would be a setback for gay marriage proponents in the nation's largest state, although it would leave open the state-by-state effort to allow gays and lesbians to marry.
Throughout U.S. history, the court has tried to avoid getting too far ahead of public opinion and mores. The high court waited until 1967 to strike down laws against interracial marriage in the 16 states that still had them.
Some court observers argue that the same caution will prevail in the California case.
"What do they have to gain by hearing this case? Either they impose same sex marriage on the whole country, which would create a political firestorm, or they say there's no right to same-sex marriage, in which case they are going to be reversed in 20 years and be badly remembered. They'll be the villains in the historical narrative," said Andrew Koppelman, a professor of law and political science at Northwestern University. Koppelman signed onto a legal brief urging the justices not to hear the California case.
Yet some opponents of gay marriage say the issue is too important, and California is too large a state, for the court to take a pass.
"The question is whether there's a civil right to redefine marriage, as the California Supreme Court did. We don't think there is," said Brian Brown, president of the National Organization for Marriage.
Regardless of the decision on hearing the California case, there is widespread agreement that the justices will agree to take up a challenge to a part of the federal Defense of Marriage Act.
The law was passed in 1996 by overwhelming bipartisan majorities in the House and Senate and signed by President Bill Clinton. It defines marriage for all purposes under federal law as between a man and a woman and has been used to justify excluding gay couples from a wide range of benefits that are available to heterosexual couples.
Four federal district courts and two courts of appeal have overturned the provision in various cases on grounds that it unfairly deprives same-sex couples of federal benefits. The justices almost always will hear a case in which a federal law has been struck down.
The Obama administration broke with its predecessors when it announced last year that it no longer would defend the provision. President Barack Obama went further when he endorsed gay marriage in May.
Republicans in the House of Representatives stepped in to take up the defense of the law in court.
Paul Clement, the Washington lawyer representing the House, said the law was intended to make sure that federal benefits would be allocated uniformly, no matter where people live.
"DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage," Clement said in court papers.
The court has several cases to choose from, including that of 83-year-old Edith Windsor of New York. Windsor faces $363,000 in federal estate taxes after the death of her partner of 44 years in 2009. In two other cases, same-sex couples and surviving spouses of gay marriages in Connecticut, Massachusetts, New Hampshire and Vermont are seeking a range of federal benefits, including Social Security and private pension survivor payments, access to federal employee health insurance and the right to file a joint federal income tax return.
In the only instance in which a gay couple already is receiving federal benefits, federal court employee Karen Golinski in San Francisco has been allowed, under a court order, to add her wife to her health insurance coverage. That could be reversed if the Supreme Court upholds the marriage law provision.
No matter which case the court chooses, the same issue will be front and center — whether legally married gay Americans can be kept from the range of benefits that are otherwise extended to married couples.
Justice Elena Kagan strongly suggested in her Supreme Court confirmation hearings that she would not take part in a gay marriage case from Massachusetts because she worked on it while at the Justice Department. The Massachusetts case is one of only two cases that have been decided by a federal appeals court. Windsor's is the other.
Another case, from Arizona, has some similarities to the Defense of Marriage Act appeals. The 9th U.S. Circuit Court of Appeals, which invalidated Proposition 8 in California, struck down a state law that said only married state employees were eligible for health benefits and withdrew domestic partner benefits for unmarried state workers. Separately, the Arizona constitution bars same-sex marriage, so gay couples had no way to obtain the state benefits.
Except when it serves Repug issues...
[quote]A decision in favor of gay marriage would set a national rule and overturn every state constitutional provision and law banning same-sex marriages.
The Prop 8 case wouldn't do that, if Judge Walker's decision were upheld on the grounds cited in the original ruling. It would only apply to CA, though it might be usable in any similar cases in other states.
The Supreme Court could chose to take up case and rule on the same sex marriage ideal broadly rather than give a narrow ruling. I doubt that would ever happen, but there is nothing stopping them R4.
[quote] It would only apply to CA, though it might be usable in any similar cases in other states.
If the 9th Circuit's decision stands, would it not apply to all states within that circuit?
Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington
And invalidate any marriage-banning law, referendum, or constitutional amendment within those states?
Prop 8 doesn't apply to all states in the 9th Circuit's area. It only applies to California. So overturning it will only affect California.
My understanding, possibly wrong, is that if Judge Walker's decision stands through the Supreme Court declining to hear the case, then marriage equality will return to California. But the rest of the 9th district would be prohibited from enacting any constitutional bans on marriage equality.
Whenever there's an advance in gay rights, there's a backlash. Let's hope it's not from that pathetic John Roberts.
November 30, 2012
Justices Still Silent on Whether They Will Take Up Gay Marriage
Gay rights and other organizations, anxiously awaiting Supreme Court action on an array of same-sex marriage petitions, will have to wait a little longer. The justices emerged from their Friday conference without any word on whether they will take up one of the most important civil rights issues in a decade.
The justices had 10 petitions for review on their Friday conference list. In anticipation of some action on one or more of the petitions, same-sex marriage advocates and opponents had prepared teleconferences and other means of getting out a quick reaction.
Listing a petition for a particular conference is not a guarantee of immediate action by the Court. With 10 petitions coming from three federal appellate courts and several district courts, the justices may have needed more time to decide not just whether to step into the controversial issue, but which petition or petitions offered the best vehicle for resolving the constitutional questions raised.
The Court is expected to grant review in at least one of the petitions challenging Section 3 of the federal Defense of Marriage Act. Review is likely because two federal appellate courts—the U.S. Courts of Appeals for the First and Second Circuits—have held that Section 3 of the act is unconstitutional as applied to same-sex couples legally married under their state laws. That section defines marriage for all federal purposes as between one man and one woman. An estimated 1,000 federal laws, ranging from tax to employment benefits, are affected by the definition.
The justices also have petitions pending that involve California's Proposition 8, banning same-sex marriage in that state, and an Arizona law that eliminated state employee health benefits for domestic partners.
The justices on Friday did add two new cases to their argument docket. A closely-watched patent case, Association for Molecular Pathology v. Myriad Genetics Inc. stems from a lawsuit challenging patents granted to Myriad and the University of Utah Research Foundation giving the company exclusive right to the BRCA1 and BRCA2 genes associated with hereditary breast and ovarian cancer.
The original lawsuit was filed by the American Civil Liberties Union and the Public Patent Foundation (PUBPAT) on behalf of researchers, genetic counselors, patients, breast cancer and women's health groups, and medical professional associations representing 150,000 geneticists, pathologists and laboratory professionals.
The Court also will hear arguments in Mutual Pharmaceutical v. Bartlett, a challenge involving design defect claims and generic drug preemption.
[quote]My understanding, possibly wrong, is that if Judge Walker's decision stands through the Supreme Court declining to hear the case, then marriage equality will return to California. But the rest of the 9th district would be prohibited from enacting any constitutional bans on marriage equality.
I don't believe that is accurate, R8, because of the way California enacted the ban, and, as a result, the way the Ninth Circuit then found it unconstitutional. That ruling is very specific to California. The only thing that other states in the Ninth Circuit wouldn't be able to do is enact a ban after permitting same-sex marriage. It was that sequence of events that the Ninth Circuit found unconstitutional, relying heavily on Justice Kennedy's decision in [italic]Romer v. Evans,[/italic] striking down Colorado's Amendment 2, which also withdrew and existing legal right to gays and lesbians. Since no other state has done that, the Prop 8 decision has no application outside of California.
[quote]The Prop 8 case wouldn't do that, if Judge Walker's decision were upheld on the grounds cited in the original ruling. It would only apply to CA, though it might be usable in any similar cases in other states.
Judge Walker's decision is actually very broad and recognizes a constitutional right to same sex marriage. The appellate court, the 9th Circuit, decided the case on far narrower grounds. They decided that a state couldn't grant marriage rights via court and then take them away at the ballot.
If the Supreme Court declines to hear the case then the 9th Circuit's narrow decision stands and since those circumstances are pretty unique the decision would only apply to California (though I think Hawaii granted marriage rights via court: marriages never began because the right was withdrawn via ballot so it seems like it would apply there too, though I haven't heard anyone mention it).
If the Supreme Court decides to hear the case, they can decide it on any grounds they want, from deciding that Prop 8 should stay in place up to and including recognizing a nationwide right to same sex marriage in all 50 states as Judge Walker would have it.
The general wisdom is that they'll pass on this particular case. If they decided to hear the case they would be left with three options: The court would either have to leave Prop 8 in place and become the Dred Scott villains of history--likely even living to see their decision overturned as they're vilified or it--; Or they could leave the circuit court's decision in place (what would be the point? That would be the same result as not hearing it); or thirdly they could establish a nationwide right to ssm, which seems far too bold for this particular court, (though you never know.... Kennedy (the swing vote) may be eager to put his name on the Brown v Board decision of our generation...)
It's more likely they'll pick up the DOMA case and say that the fed gov must recognize marriages performed in the states.
WEST POINT, N.Y. December 1, 2012 (AP)
Cadet Chapel, the landmark Gothic church that is a center for spiritual life at the U.S. Military Academy at West Point, hosted its first same-sex wedding Saturday.
Penelope Gnesin and Brenda Sue Fulton, a West Point graduate, exchanged vows in the regal church in an afternoon ceremony, attended by about 250 guests and conducted by a senior Army chaplain.
The two have been together for 17 years. They had a civil commitment ceremony that didn't carry any legal force in 1999 and had long hoped to formally tie the knot. The way was cleared last year, when New York legalized same-sex marriage and President Barack Obama lifted the "Don't ask, don't tell" policy prohibiting openly gay people from serving in the military.
The brides both live in New Jersey and would have preferred to have the wedding there, but the state doesn't allow gay marriage.
"We just couldn't wait any longer," Fulton told The Associated Press in a phone interview Saturday.
Cadet Chapel was a more-than-adequate second choice, she said.
"It has a tremendous history, and it is beautiful. That's where I first heard and said the cadet prayer," Fulton said, referring to the invocation that says, "Make us to choose the harder right instead of the easier wrong, and never to be content with a half-truth when the whole can be won."
The ceremony was the second same-sex wedding at West Point. Last weekend, two of Fulton's friends, a young lieutenant and her partner, were married in another campus landmark, the small Old Cadet Chapel in West Point's cemetery.
Fulton has campaigned against the ban on gays in the military as a member of two groups representing gay and lesbian servicemen and servicewomen. She graduated from West Point in 1980, a member of the first class to include women.
She served with the Army Signal Corps in Germany and rose to the rank of captain, but left the service in 1986 partly because she wanted to be open about her sexual orientation. Obama appointed her last year to the U.S. Military Academy's Board of Visitors.
Fulton said the only hassle involved in arranging her ceremony came when she was initially told that none of West Point's chaplains was authorized by his or her denomination to perform same-sex weddings.
Luckily, Fulton said, they were able to call on a friend, Army Chaplain Col. J. Wesley Smith. He is the senior Army chaplain at Dover Air Force Base, where he presides over the solemn ceremonies held when the bodies of soldiers killed in action overseas return to U.S. soil.
The couple added other military trappings to their wedding, including a tradition called the saber arch, where officers or cadets hold their swords aloft over the newlyweds as they emerge from the church.