Monday, June 24, 2013

Waiting on Proposition 8 and DOMA Decisions





As many of us wait and wonder what will happen with the Supreme Court rulings, a great "plain English" overview of both Hollingsworth v. Perry and United States v. Windsor can be found here at SCOTUS Blog.  Personally, I am hopefully optimistic on the DOMA case.  On Proposition 8, I suspect that the Court's ruling will do nothing for members of the LGBT community in anti-gay states like Virginia.  We will likely remain second class citizens subject to state sponsored discrimination in a modern day version of segregation.  Here are brief excerpts on the two cases:


To the extent that you can make any predictions based on the oral argument, Windsor and her supporters may have reason to be cautiously optimistic.  The Court’s four more liberal Justices – Justices Ginsburg, Breyer, Sotomayor, and Kagan – seemed to be squarely on her side.  They may also have a vote from Justice Anthony Kennedy (who is often regarded as the swing vote on the Court) to strike down the law as well, although perhaps for a different reason.  Generally a staunch supporter of states’ rights, he seemed troubled by the idea that with DOMA Congress was trying to regulate marriage – which, he seemed to indicate, has traditionally been the role of the states.

But there’s a chance that the Court might not even get to the question whether DOMA is constitutional at all.  The case may have a fatal procedural flaw.  In a normal case that comes to the Court, the party that lost in the lower court is the one asking the Court to review the case.  But this is not, as you may have figured out by now, the average case.  Windsor and the United States won in the lower court, by getting a ruling that DOMA is unconstitutional.  And to make things even more complicated, usually it is the federal government that appears in court to defend the constitutionality of federal laws, but the government isn’t doing that here; House Republicans are doing it instead.

The fate of California’s Proposition 8, before the Court in Hollingsworth v. Perry, seems murkier than DOMA’s.  Proposition 8 was a response to a 2008 decision by the California Supreme Court ordering the state to begin issuing marriage licenses to same-sex couples.  Before the end of that year, California voters had passed Proposition 8’s ban on same-sex marriage.

The sponsors of Proposition 8 defended it in court, because the State of California refused.  The two couples prevailed in the federal trial court and then in the U.S. Court of Appeals for the Ninth Circuit, with the latter holding that Proposition 8 was unconstitutional because it took the previously granted right to marry away from gays and lesbians just because people didn’t like them.

There is a threshold question of “standing” that piqued the interest of several Justices – the Chief Justice and the Court’s four more liberal Justices in particular – who seemed inclined at oral argument to hold that the sponsors of Proposition 8 lacked the legal right to defend it in court. 

[T]he Court could simply dismiss the case on the ground that it had made a mistake in taking it on. The one thing that didn’t seem likely after the oral argument was what some supporters of same-sex marriage had long feared:  a decision holding that the state’s ban on same-sex marriage is constitutional.  

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