The Supreme Court's Mistaken Attempt to Dodge Gay Marriage

When the U. S. Supreme Court handed down its rulings in Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (the DOMA case), it was trying to dodge the bullet of having to decide the issue of whether or not the equal protection clauses of the 5th and 14th Amendments to the U.S. Constitution require gay marriage nationwide.  Had the Court had a spine, it would have ruled that gay marriage is a fundamental right not to be abridged by the states or the federal government.  In the wake of the striking down of DOMA, we now see the federal government recognizing gay marriages regardless of where the same sex couple resides and the momentum to strike down state bans is growing.  A good overview of the reasoning of the recent Utah ruling which may be hard for the Supreme Court to ignore is here.  A piece in the New York Times looks at the prospects facing the Supreme Court.  Here are excerpts:

In June, when the Supreme Court stopped short of deciding whether the Constitution guaranteed a right to same-sex marriage, many thought the court had bought itself several years before it had to confront the question again. 

But the issue will soon return to the court, with officials in Utah saying that within the next few days they will ask the justices to block a trial judge’s decision last week that allows same-sex couples to marry there. 

“If the court thought it was going to get a few years,” said Michael C. Dorf, a law professor at Cornell, “I think they were naïve.”

[T]he pace of change has been very rapid. When the justices heard arguments in the cases in March, same-sex marriage was permitted in nine states and the District of Columbia. If the Utah decision stands, the number of states allowing such marriages will have doubled, to 18. 

Michael J. Klarman, a historian at Harvard Law School and the author of “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage,” said he had expected rapid change — but not this rapid.   “The Utah decision is unique,” he added, “because it’s in a state with so much opposition to same-sex marriage. In Utah, you’re going to have a real experiment in backlash.” 

The question for the Supreme Court in the short term will be whether to block Judge Shelby’s ruling while appeals proceed. The state’s request will initially be directed to Justice Sonia Sotomayor, the member of the court responsible for overseeing the Tenth Circuit, but she will almost certainly refer the matter to the full court. It is likely to act within several days. 

The Supreme Court will face difficult calculations, ones it did not have to confront in reviewing decisions from federal courts in California striking down Proposition 8, . . . Professor Dorf said there are probably not five votes on the Supreme Court to block Judge Shelby’s ruling. “On the strictly legal argument,” he said, “it’s hard to justify granting a stay.”

Whatever the Supreme Court does regarding a stay, it is hard to see how it could hear the larger issue in the case in the current term. But a decision in the court’s next term, culminating in a decision in June 2015, is entirely possible. 

In the meantime, Judge Shelby’s decision will certainly get the justices’ attention. He acknowledged, for starters, that the Supreme Court’s 5-to-4 decision striking down part of the Defense of Marriage Act, United States v. Windsor, could be read to support either side in his case.

In Windsor, the two interests — states’ rights and gay rights — pointed in the same direction. They were, Judge Shelby wrote, “allied against the ability of the federal government to disregard a state law that protected individual rights.” “Here,” he continued, “these interests directly oppose each other.” 

To resolve the tension, Judge Shelby looked to Justice Antonin Scalia’s dissenting opinion in Windsor.

“Somewhere between the next two and six years, the court will be ready to do it,” Professor Klarman said, referring to establishing a constitutional right to same-sex marriage, “assuming the composition of the court does not change.” 

As for the pace of change, Professor Dorf said, “it’s faster than the majority in Windsor had expected but not faster than Justice Scalia anticipated.” 

Ultimately, the Court will have to decide if it will uphold gay marriage nationwide or be viewed by future generations akin to the Court in its infamous rulings of the past that upheld slavery and then later the Jim Crow laws.  

British House of Lords Gives Final Approval to Gay Marriage

While the U. S. Supreme Court chose to dodge facing the fact that bans on gay marriage are unconstitutional on an equal protection basis in Hollingsworth v. Perry, the British House of Lords - not exactly an ultra-liberal body - has given its final stamp of approval to gay marriage in the United Kingdom.  Frankly, it is embarrassing to watch as other Supreme Courts around the developed world find that gay marriage bans are discriminatory and unconstitutional while America's Supreme Court lacked the balls and morality to call out religious based discrimination for what it is and rule broadly.  The only positive light is that the language in the Windsor opinion may likely set the stage for ending anti-gay amendments nationwide in future cases.  Here are highlights from Stonewall on events in the UK:

Lesbian, gay and bisexual couples in England and Wales will be able to marry next spring, after the House of Lords gave Third Reading to the Marriage (Same Sex Couples) Bill. Subject to consideration of amendments in the House of Commons – a technicality, as the Bill made it through the Lords without any material amendments – the Bill will now receive Royal Assent and become law.

Stonewall Chief Executive Ben Summerskill said: ‘It’s impossible to express how much joy this historic step will bring to tens of thousands of gay people and their families and friends. The Bill’s progress through Parliament shows that, at last, the majority of politicians in both Houses understand the public’s support for equality – though it’s also reminded us that gay people still have powerful opponents.

Supreme Court Strikes Down DOMA and Dodges Larger Gay Marriage Issue.

Today the United States Supreme Court ruled that Section 3 of the federal Defense of Marriage Act ("DOMA") is unconstitutional.  The Court also ruled that  Proposition 8 proponents lacked standing to appeal the U.S. District Court ruling striking down Proposition 8 and ordered the Ninth Circuit to dismiss the appeal, thereby reinstating the District Court ruling.  While I am not surprised in many ways, I'd be lying if I did not admit that I had secretly hoped for a broad pro-gay marriage in Perry.

Back when the Supreme Court took the cases of Hollingsworth v. Perry and United States v. Windsor, I suspected that the Court would chicken out and avoid the larger issue of gay marriage on a national scale and I speculated that the issue of standing would be used to dodge making a larger decision.  I even referenced the case of  Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) and Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), that were both cited in today's ruling in Perry that the Proposition 8 proponents lacked standing to appeal the U.S. District Court ruling striking down Proposition 8.   Here are excerpts from the ruling in Perry:

Article III [of the United States Constitution which established the federal court system] demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U. S. ___, ___. Standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64. The parties do not contest that respondents had standing to initiate this case against the California officials responsible for enforcing Proposition 8. But once the District Court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in the District Court, but they had not been ordered to do or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this Court has repeatedly held, such a “generalized grievance”—no matter how sincere—is insufficient to confer standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574.

A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” 

Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’” Diamond, 476 U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their]advocacy,” post, at 4 (KENNEDY, J., dissenting), that is not a “particularized” interest sufficient to create a case or controversy under Article III.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

As noted, the ruling striking down Sec. 3 of DOMA is also not surprising and is in some ways reminiscent of the ruling in Romer v. Evans which was also authored by Justice Kennedy.   Here are some core excerpts from the ruling in Windsor that found that DOMA deprived same sex married couples equal rights and protections under the law and that DOMA was motivated by anti-gay animus:

The design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges.

DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may  vary, subject to constitutional guarantees, from one State to the next. 

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.  Depart­ment of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motivated by an improper animus or purpose, “[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles.

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.  The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. 

A future post will sort out where these rulings leave us - especially those of us living in anti-gay states like Virginia. We will also look at the shrieks and wailing coming from the Christofascists.

 

DOMA and Proposition 8 Rulings To Come Tomorrow

Having tuned into SCOTUS Blog, official word is that the rulings in Hollingsworth v. Perry and United States v. Windsor will be handed down tomorrow at 10:00 AM.  The prediction is that Chief Justice Roberts will deliver the ruling in Perry and Justice Kennedy will deliver the ruling in Windsor.  The wait for these rulings has been like a slow torture.  I sincerely hope the Court embraces modernity and equality rather than religious based bigotry.

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.  

Where Will Gay Rights Be After SCOTUS Rules?

Many are waiting with apprehension this morning since today or Monday will likely be when the U. S. Supreme Court hands down its rulings in Hollingsworth v. Perry, the Proposition 8 case, and United States v. Windsor, the DOMA case.   The speculation is that DOMA will be ruled unconstitutional and for gays in states where gay marriage is legal, a host of new legal rights will become available.  The Proposition 8 case is another matter and few seem to anticipate a broad ruling that would strike down bans on gay marriage nationwide.  So where does that leave those of us living in virulently anti-gay states like Virginia?  Mostly still totally screwed and second, third or even fourth class citizens.  But, if DOMA does fall, there will be some possible rights flowing to us if we marry in states where gay marriage is legal.  As noted in prior posts, we will face very complicated and inconsistent legal rights and challenges.  A narrow ruling on Prop 8 and a striking down of DOMA will no doubt unleash a further host of law suits.  Here are highlights of some further analysis from Towleroad.

Normally, marriage law is pretty simple: For 99 percent of heterosexual couples, the hardest thing about marrying in one state and moving to another state is packing the fine china. Sure, there are some states (New York) that allow first cousins to marry and some states (West Virginia) that do not, but for the most part, when a man marries a woman, they are married in all legal respects whether they live on the 65th floor in an Upper West Side hi-rise or in a ranch house in Oklahoma. 

The end of DOMA doubles down the complexity faced by legally married same-sex couples. What is the governing law for marriages for federal law: the place of celebration or the place of domicile? What if the choice of law is different from different aspects of federal law? What happens when a legally married couple moves to a state that feels that their marriage violates public policy? What of gay couples that do not have the option of marrying and are in registered domestic partnerships or civil unions that provide all the benefits of marriage?

[I]n a world without DOMA, which makes the choice of law question moot, what will the federal government do? The general rule is the marriages are recognized in the state of celebration, or the state the couple signed the marriage license, even if they reside somewhere else.

Some people argue that all states should recognize same-sex marriages performed in other states because the Constitution, specifically the Full Faith and Credit Clause, requires the states to recognize the "the public acts, records, and judicial proceedings, of every other state." But a marriage license is not a judicial proceeding and although it could be considered a "record," courts have generally not required other states to give binding recognition under the Full Faith and Credit Clause to similar documents, such as a pharmacist's, dentist's, or a lawyer's license.

That means that the Constitution isn't going to be much help coming up with a clear choice of law rule in a post-DOMA world. We could rely on the common law default rule that marriages are recognized by the federal government based on the laws of the state of celebration. But the common law rule has exceptions -- big ones -- that make life impossibly difficult for gay couples to move from one state to another when those state gay marriage laws differ. For some moves -- say, from New York to New Mexico -- there is no problem because whereas New Mexico may not be a freedom to marry state, it will recognize out of state gay marriages. But for other moves -- say, from Massachusetts to Utah -- the public policy exception to out-of-state marriage recognition takes Utah off the map as a viable destination for gay couples.

This raises questions of social justice and fairness, but also constitutional rights. You have a right to move, and states that ban gay marriage and refuse to recognize out-of-state marriages put an effective burden on gay would-be new residents. In Saenz v. Roe (1999), for example, the Supreme Court held, in part, that those who leave one state and become permanent residents of another state have a right to be treated equally to native born citizens of that state. That holding is not cabined by a mover's sexual orientation: a gay person isn't entitled to be treated like any other gay person in his new state, but rather he is entitled to treated equally to any other person in his new state. That could apply to marriage discrimination, as well.

Of course, Congress could step in and solve the complexity problem. The Respect for Marriage Act (ROMA), for example, would codify the following rule:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

Short of this kind of Congressional action -- which, by the way, is unlikely, given the makeup of the House and the long decades that have passed without Congress taking any action to mop up the messy patchwork of choice of law rules when it comes to marriage -- the post-DOMA world will be a tangled web of common law rules that will be subject to future litigation. There are no simple answers to the next questions. The IRS may interpret the tax and bankruptcy codes to define marriage based on state of celebration, but that rule can be challenged. Immigration authorities may interpret the rule differently, based on contradictory case law coming out of the spousal visa context, though, as attorney Lavi Soloway has argued, the celebration rule is the stronger argument.

Yes, it will be very complicated for many of us.   All so that the Christofascists can feel morally superior and inflict their anti-gay animus on as many of us as possible.  So much for religious freedom and the "liberty" that America pretends to offer to all.

Rachel Maddow: The GOP’s ‘Awkward’ Positions On "The Gay" WillSoon Come Crashing Down

As noted many times on this blog, some 20 to 25 years ago the Republican establishment decided that mobilizing the Christofascists would help the GOP win elections.  At the time, the powers that be in the GOP never stopped to ask the question of how, once these people have been allowed into the party grass roots, would the so-called establishment (i) control them and/or (ii) eject them from the party apparatus if their batshit craziness became a problem.    Now, the day of retribution is about to arrive and the GOP establishment seemingly has no plan on how to eject the most ignorant, nasty and hate-filled elements of today's GOO, the "godly Christian" crowd.  Rachel Maddow recently looked at the coming Armageddon for the GOP in terms of its virulently anti-gay platforms passed, of course, by the ugliest hate group elements of the GOP base.  Here are highlights from The New Civil Rights Movement:

Rachel Maddow last night explored the “awkward” stance almost every Republican politician has taken on LGBT civil rights, which, she says, has “bewildered” the rest of America. Starting with Texas governor Rick Perry winning the war on the war on Christmas by signing a bill making it “not illegal” to say “Merry Christmas” in schools (a bill, by the way, that is likely unconstitutional — see our discussion here) to Ralph Reed‘s Faith & Freedom Coalition‘s “Road to Majority” conference this weekend, which, Maddow noted, mockingly, lobbied Congress this week “on the evils of gay marriage and the darkness that will be unleashed on the land if the court rules in a pro-gay way.”

But Republicans can no longer feel safe talking about gay people the way they have in the past, says Maddow.  “Republican politicians are about to lose the luxury of only talking about gay rights in front of anti-gay audiences like the Faith & Freedom Coalition, or avoiding the question altogether because they don’t want to be quoted about it because their Republican position on the subject is so unpopular,” the MSNBC anchor reveals.

“Because in Republican world — it is a very different world than most of us live in when it comes to talking about ‘The Gay,’” Maddow rightly notes.  Nobody who has any real prospects of being a national leader in Republican politics in the next few years has anything other than a 100 percent anti-gay policy position on something like non-discrimination,” Maddow added. “That is apparently still a requirement if you are a Republican and you want to hold higher national office.”.

But all that is about to change, and the ability to be anti-gay and continue to hold elected office will “come crashing down on the Republican Party,” Maddow predicts, when the Supreme Courts hands down its rulings on two historic marriage cases, Prop 8 and DOMA,  .  .  .  .  .

“After these rulings come out, this is going to be the biggest news in the country,” Maddow concluded. “They’re going to have to talk to the rest of the country, too, increasingly not only against them on these issues but bewildered by them and their positions on these issues.”

Like, Ken Blackwell who happens to be African-American and whose troubled past didn’t preclude him from being paid big bucks by the hate group Family Research Council, telling a Congressman if the Supreme Court rules in favor of the LGBT community there will be mass civil rights disobedience protests “reminiscent of the Civil Rights Movement,” nationwide.

One of the biggest problems for the GOP in my view as a former GOP activist is that the Party increasingly operates and exists in a bubble.  GOP members listen to Fox News and ignore real world news: they listen to the lies and false propaganda of anti-hate group; and they refuse to get out and converse with normal sentient individuals outside the Tea Party, Republican Women's Clubs and spittle flecked Christofascist circles.   The world and the nation's demographics are changing even if many in the GOP cling to the fantasy that we are still in the 1950's or early 1960's where the Clever family (Leave It to Beaver) and Anderson family (Father Knows Best) were supposedly the norm. 

I hope the Supreme Court Rulings whatever they may be turn out to be unsettling, cataclysmic events for both the GOP and the Christofascists.

Even if DOMA Falls, Many Gay Couples Will Remain Second Class Citizens

With more and more people waiting for the Supreme Court's rulings in Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (the DOMA case), increasing analysis indicates that absent a nationwide ruling for gay marriage, a striking down of DOMA alone will leave many same sex couples screwed.  We will remain second class citizens unless we emigrate from our home states to states that recognize full gay marriage.  That, of course, is precisely the goal of hate groups like Family Research Council and the National Organization for Marriage which seek to keep discrimination and mistreatment of LGBT citizens alive and well as long as possible.  They don't give a damn about "protecting marriage."  No, it's all about keeping gays inferior under the law.  A piece in the New York Times reviews the limited impact that the striking down of DOMA will have for most of us at least unless and until federal regulations and in some cases legislation is rewritten.  Here are highlights:

A Supreme Court ruling this month that could overturn the ban on federal benefits for same-sex couples is presenting the Obama administration with a series of complicated and politically sensitive decisions: how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.

The decisions could affect Social Security checks, immigration laws and military benefits for same-sex couples, among other issues, with the outcomes based on whether the couples live in a state that allows them to marry. 

Gay rights advocates, aware that a Supreme Court ruling that overturns the 1996 Defense of Marriage Act would be the beginning of their push to have the federal government recognize same-sex marriage, are urging White House officials to plan to modify hundreds of mentions of marriage throughout federal statutes and regulations.

If the justices do strike it down, they will sweep aside a law that has for years prohibited gay couples from receiving a vast array of federal benefits that married couples take for granted. But whether gay couples actually get those benefits would depend on where they live — and how vigorously President Obama seeks to change the legal language that determines whether a couple is married in the eyes of the federal government. 

For Mr. Obama, who appears eager to have his legacy defined in part by the advancement of civil rights for gay Americans, his administration’s actions after the ruling may be as important as the ruling itself.

Activists, however, are warning gay couples not to expect that federal benefits would arrive immediately, because government agencies vary widely in how they determine whether a couple is legally married. 

Some federal agencies, like the I.R.S. and the Social Security Administration, make that determination by looking to the state where a couple lives. Even with the 1996 law overturned, those agencies would deny benefits to gay couples who live in one of the 38 states that do not allow same-sex marriage.

Other agencies, like the Defense Department, already base their decision on the location of a couple’s wedding, regardless of where the couple lives now. The same-sex spouse of a service member would get health care benefits no matter where the couple lives, as long as the two married in one of the 12 states where same-sex marriage is legal. 

“Without sweeping decisions from the court, we’ll continue to have a patchwork across the country that denies all families equal protection,” Mr. Sainz said. “We are going to fight for full equality in all 50 states, including marriage.” 

It's not encouraging.  Those of us in Virginia - one of the most anti-gay states in America - will still be largely screwed and not equal citizens.  And should the GOP statewide ticket of gay haters be elected in November, an already bad situation will become far worse.  As I've said before, if family circumstances were different, I'd leave Virginia in a hear beat.

Will Gay Law Clerks Tip the Supreme Court's Rulings?

One thing one learns from reading U.S. Supreme Court decisions is that often the justices decide how they want to rule and then work backwards to form the argument laid out in their majority opinion.  Egregious circumstances have on occasion resulted in all kinds of contortions to reach the desired result.  The other thing, of course that tilts rulings is the personal beliefs and experiences of the justices.  One need look only at the far right Catholic beliefs of Thomas and Scalia to see that they all too often put their religious dogma ahead of the law and U.S. Constitution.  One thing that has changed at the Supreme Court in the years since I was a young attorney is the presence of openly gay law clerks at the Court - some even work for the conservative justices.  Coming out is a powerful tool for change because knowing people who are gay can destroy stereotypes and even cause a rethinking of religious beliefs.  A piece in the New York Times ponders what impact, if any the gay law clerks may have in the pending rulings in Hollingsworth v. Perry and United States v. Windsor.    Here are some highlights:

WASHINGTON — As Justice Lewis F. Powell Jr. was struggling with how to cast the decisive vote in a 1986 Supreme Court case that would end up devastating the gay rights movement, he told his fellow justices that he had never met a homosexual.  In truth, one of his four law clerks that term was gay. 

The atmosphere at the court today is far different from 1986, with a pace of change that may have surpassed that in the rest of society. Openly gay law clerks are now common in the chambers of both liberal and conservative justices. In January, Chief Justice John G. Roberts Jr. formally admitted about 30 members of the National LGBT Bar Association to the Supreme Court’s bar, the first time lawyers with a gay legal group achieved that status. 

As the justices consider two major cases on same-sex marriage, with decisions expected this month, they are, of course, focused on legal issues. But students of the court say other factors may also play a role. 

“In addressing for the first time whether the law must recognize lesbian and gay couples as families,” said David C. Codell, who served as a law clerk to Justice Ruth Bader Ginsburg, “certain of the justices undoubtedly will reflect upon their real-world experiences of getting to know and to understand lesbian and gay people as individuals and as members of families.”

Paul M. Smith, a gay lawyer who clerked for Justice Powell in 1980 and 1981, said that by the 1990s, “people started to be out in their clerkship applications.” 

By 2003, when Mr. Smith argued and won Lawrence v. Texas, which overruled the Hardwick decision, openly gay clerks were becoming common. Matthew B. Berry, who is gay and served as a law clerk to Justice Clarence Thomas in 2001 and 2002, said his boss went out of his way to make his boyfriend feel welcome at the court.    “I was in a long-distance relationship,” Mr. Berry said. “When my boyfriend came to see an oral argument, the justice was very generous with his time and spent about 45 minutes talking to him and me. He would do that when clerks’ family members visited the court.” 

These days, justices are more likely to work and socialize with openly gay people than most Americans are. That is partly because 10 percent of adults who live in the District of Columbia say they are gay, lesbian, bisexual or transgender, according to a February Gallup poll. That is a much higher percentage than in any state. 

Professor Jeffries, the Powell biographer and Virginia professor, said the presence of openly gay clerks at the Supreme Court these days is but an instance of a societal transformation on gay rights.  “The universe has flipped” since 1986, he said. “Everything about the world has changed.

Will knowing gay law clerks make a difference?  Will a 2 to 1 vote for gay marriage by the House of Lords make a difference in the justices' minds.   Who knows.  Many of us will remain on pins and needles waiting for the Court to hand down its rulings.  Here in Virginia, without change mandated from the federal level, prospects look bleak.  At least until the Christofascist hold on the Virginia GOP is broken.  As an aside, Jeffries was my first year law school constitutional law professor.

Gay Marriage Map Shifts Ahead Of Supreme Court Ruling

Click image to enlarge

One has to wonder what id going through the minds of some of the possible swing votes on the U. S. Supreme Court in Hollingsworth v. Perry and United States v. Windsor as things continue to change rapidly on the gay marriage issue.  Huffington Post has an update:

As the U.S. Supreme Court prepares to rule on the Defense of Marriage Act and Proposition 8, all eyes are on Justice Anthony Kennedy, the likely swing vote in the gay marriage cases.

Kennedy described the issue of gay marriage as "uncharted waters" when the court first heard arguments in March. He expressed support for gay rights as he has in the past but questioned the timing of a decision because "we have five years of information to weigh against 2,000 years of history or more." He also acknowledged that Proposition 8 causes the children of gay parents "immediate legal injury."

Three states and three countries have legalized gay marriage since March with more legislation pending, and the shift towards equality could influence the Justice who has previously cited world opinion and national consensus as reason to abolish the death penalty for juveniles.

 Does Kennedy - and John Roberts for that matter - really want to be on the wrong side of history and rank in the annals of history with justices who supported slavery and segregation?

 

Chief Reviewer Trashes Regnerus Anti-Gay Parenting "Study"

Mark Regnerus - author of discredited anti-gay study

In both Hollingsworth v. Perry and United States v. Windsor the Christofascists tried to make much of the far right funded "study" Mark Regnerus which seemingly had a preordained conclusion before Regnerus ever started and which most certainly did not study what it claimed to cover.  In short, the study was a fraudulent piece that was funded by Christofascists for the very purpose of misleading the U.S. Supreme Court and other courts considering gay rights cases.   In short, the "study" is more akin to something Paul Cameron might produce rather than a serious scientific study.  Now a reviewer of the work has slammed Regnerus and his propaganda piece "study."   Here are highlights from The New Civil Rights Movement:

The Regnerus anti-gay parenting “study” by Mark Regnerus (image, above) is “deeply flawed” and as a result, the author himself is “disgraced,” says the study’s top appointed scholarly reviewer.

In a lengthy interview with the Southern Poverty Law Center, Darren Sherkat, a professor of sociology at Southern Illinois University, and a member of the editorial board of Social Science Research — the publisher of the Regnerus “study,” officially the “New Family Structures Study” (NFSS) – once again decimates the Regnerus paper.

“When we talk about Regnerus, I completely dismiss the study,” Sherkat tells the Southern Poverty Law Center:

It’s over. He has been disgraced. All of the prominent people in the field know what he did and why he did it. And most of them know that he knew better. Some of them think that he’s also stupid and an ideologue. I know better. I know that he’s a smart guy and that he did this on purpose, and that it was bad, and that it was substandard.

Darren Sherkat, who “was tapped” by Social Science Research editor James Wright “to conduct an audit of the process of publishing the Regnerus study,” the SPLC writes:

Let’s get down to the details. What’s wrong with the Regnerus paper?Regnerus and other right-wing activists have been fond of claiming that the study is “population-based” or a “national probability study.” As a scientist, I don’t even know what “population-based” means, and the data used in this study are by no means a probability sample. Regnerus’ data are from a large number of people recruited through convenience by a marketing firm — they are not a random, representative sample of the American population. Science requires random samples of the population, and that is not how this marketing firm collected their data.

Several scholars also have pointed to incongruities and outlandish values in the Regnerus study, such as people claiming hundreds of sex partners in the prior week. The online collection of data makes the veracity of responses even more problematic.

Isn’t a key criticism also that the study doesn’t actually address children growing up in households of self-identified LGBT parents?
The key measure of gay and lesbian parenting is simply a farce. The study includes a retrospective question asking if people knew if their mother or father had a “romantic” relationship with someone of the same sex when the respondent was under age 18. This measure is problematic on many levels.

Regnerus admits that just two of his respondents were actually raised by a same-sex couple, though I doubt that he can even know that, given his limited data. Since only two respondents were actually raised in gay or lesbian households, this study has absolutely nothing to say about gay parenting outcomes. Indeed, because it is a non-random sample, this study has nothing to say about anything.

It's troubling that to date Regnerus has not been disciplined by the university that employs him and has not lost any memberships in professional organizations.  Is this yet another example of unfounded deference to conservative religious beliefs?   No one lies as often and as viciously than the "godly folks."

P.S. My fellow blogger Jeremy Hooper at Good As You notes:

This weekend, Mark Regnerus will appear at the “It Takes A Family” conference, a project of the National Organization for Marriage’s Ruth Institute, where he will lecture alongside intensely anti-gay figures like Robert Gagnon. Just in case you needed more grist for the agenda-driven mill.

Will Recent Gay Marriage Developments Shift Supreme Court's Gay Marriage Ruling?

The U. S. Supreme Court never hands down decisions in a vacuum.  The decisions are impacted not only by the facts of a particular case but also by surrounding social developments.  And it is not uncommon to see the majority opinion engage in contortions when necessary to reach the desired result.  Next month the U. S. Supreme Court will hand down decisions in both United States v. Windsor, which challenges DOMA, and Hollingswoth v. Perry, which challenges California's Proposition 8.   Since the Court heard oral arguments back in March, three U.S. states have approved gay marriage as have three foreign countries.  On top of this, new polls show a majority of Americans supporting gay marriage.  A piece in Huffington Post looks at speculation on how these developments will influence the Court's rulings.  Here are excerpts:

Three U.S. states and three countries have approved same-sex unions just in the two months since the Supreme Court heard arguments over gay marriage, raising questions about how the developments might affect the justices' consideration of the issue.

In particular, close observers on both sides of the gay marriage divide are wondering whether Justice Anthony Kennedy's view could be decisive since he often has been the swing vote on the high court.
It is always possible that Justice Kennedy is reading the newspapers and is impressed with the progress," said Michael Klarman, a Harvard University law professor and author of a recent book on the gay marriage fight.

In earlier cases on gay rights and the death penalty, Kennedy has cited the importance of changing practices, both nationally and around the world.

The justices took an initial vote in the days after hearing arguments in the two cases in late March. The senior justice on the winning side and the senior justice in dissent assigned opinions based on those votes. But while that first vote is important, it is not the end of the process; justices' assessments of a case can shift subtly or, in some cases, dramatically.

In 1992, Kennedy initially drew the assignment to write a majority opinion for five justices allowing prayers at public school graduations. In the end, he ended up writing the opinion for a different five-justice majority striking down the graduation prayers. According to several accounts, Kennedy simply changed his mind during the writing process.

There is no way to know at this point whether anything similar will happen in the gay marriage cases, either of which could be decided on technical legal grounds that would say little about the court's view of the issue. But there has been no shortage of action.

In a 10-day span earlier this month, lawmakers in Delaware, Minnesota and Rhode Island gave final approval to bills to legalize same-sex marriages.   .   .   .  .  Internationally, French President Francois Hollande signed a law this month making France the 14th country to recognize gay marriages. Uruguay and New Zealand took similar steps in April.

And further change could come soon. The Illinois Senate has approved a gay marriage bill that now is pending in the state House in advance of the May 31 end of the legislative session. Gov. Pat Quinn has said he would sign it.

During argument in the California case, Kennedy strongly suggested that he was not about to give gay marriage proponents what they are asking for, a decision that would allow same-sex couples to wed everywhere in the United States.

But Klarman wonders whether Kennedy might consider his legacy and the fact that at 76 years old, he might not be on the court for the next big gay marriage case. "He knows that today, he can write the opinion that would be the Brown of the gay rights movement," Klarman said.

I, of course am hoping against hope for a wide across the board ruling for gay marriage.  Yes, it may be a long shot.  But, if the Court dodges the issues and rules narrowly, for me it will be proof that the Constitution's promise of equality before the law and religious freedom are nothing but a lie. I am anything but alone in this assessment.  Does Justice Kennedy understand tat how he rules will put the Constitution on trial?  

 

Gay Marriage Goes Nationwide in Brazil

One has to wonder if the U.S. Supreme Court is paying attention to recent events as it cobbles together opinions in Hollingsworth v. Perry, which challenges Proposition 8, and United States v. Windsor, challenging DOMA.  Since oral arguments before the Court, three more U.S. states have enacted gay marriage laws as have the countries of New Zealand and France. Now, the highest judicial authorities in Brazil have ruled that gay marriage must be granted nationwide in that country, putting it on an equal footing with Argentina.  Do the Supreme Court justices (other than Scalia, Thomas and perhaps Alito who are knuckle dragging Neanderthals)  really want to be viewed by history as reactionary bigots?  Here are highlights from Globalpost on the latest developments in Brazil:

A top judicial panel cleared the way for same-sex marriage in Brazil Tuesday, ruling that gay couples could not be denied marriage licenses.

The National Council of Justice, which oversees the Brazilian judicial system and is headed by the chief justice of the Supreme Court, said government offices that issue marriage licenses had no standing to reject gay couples.

The Supreme Court "affirmed that the expression of homosexuality and homosexual affection cannot serve as a basis for discriminatory treatment, which has no support in the Constitution," said Chief Justice Joaquim Barbosa on the council's website, referring to a 2011 ruling by the top court.

Barbosa also said there was no reason for the government's marriage licensing offices to wait for the Brazilian Congress to pass a law authorizing same-sex marriage.

Again, will the justices do the right thing on gay marriage, or will America fall further behind other modern nations and prove that the U.S. Constitution''s promises are nothing more than a hubris filled lie?    Once many Americans looked down on Brazil and Argentina as backwards nations.  Now, it is they who make the USA look backwards.

Two More Staes in Brazil Grant Gay Marriage

While the USA sits waiting for the U.S. Supreme Court to issue rulings in Hollingsworth v. Perry (the case challenging Proposition 8) and United States v. Windsor (the case challenging the Defense of Marriage Act), Brazil has again demonstrated what equality under the civil laws means as two more states grant full marriage equality to same sex couples.  With this action 14 out of Bazil's 27 states and federal district (i.e., 52%) allow full marriage equality  while in America - the alleged "land of liberty" and religious freedom, only 10% of the states grant such civil law equality.   Also, unlike in the USA under DOMA, gay marriages performed in any state allowing gay marriage are recognized in every state in Brazil.   All in all, it is a sad commentary on the USA and underscores the lie that religious freedom extends to all American citizens.  Freedom to Marry looks at these latest events in Brazil.  Here are highlights:

Yesterday, marriage continued moving forward in Brazil when the Corregedor Geral de Justiça in two additional states - Paraíba and Santa Catarina (Articles in Portuguese) - authorized marriages between same-sex couples. Now, fourteen of the 27 jursidictions in Brazil (13 states and the Federal District) have approved the freedom to marry. Earlier this month, Rio de Janeiro and Rondônia saw similar developments.  

In these states (and the federal district), couples can marry in Brazil without the two-step process: Alagoas (December 2011), Sergipe (July 2012), Espíritu Santo (August 2012), Bahía (November 2012), the Brazilian Federal District (December 2012), Piauí (December 2012), São Paulo (December 2012), Ceará (March 2013), Paraná (March 2013), Mato Grosso do Sul (April 2013), Rio de Janeiro (April 2013), Rondônia (April 2013), and now Paraíba and Santa Catarina (April 2013). 

Now, nearly 60% of the population of Brazil live in states where same-sex couples can marry without the two-step process.  

The news out of Brazil is the latest international victory for the freedom to marry. This month, the legislatures in Uruguay, France, and New Zealand have taken definitive votes to pass the freedom to marry for same-sex couples nationwide.

After marriage legislation takes effect in Uruguay, France and New Zealand, same-sex couples will be able to share in the freedom to marry in 17 countries.   

Of course, it is not just in terms of gay marriage that America is lagging behind.  Much of Europe provides more upward social mobility, and the USA's position  is falling in terms of life expectancy, and our health care system is the most expensive and least cost effective in the world over all.  And what's holding America back?  The Republican Party and its Christofascist base.

Did Supreme Court Conservatives Grant the Prop 8 Case?

Given some of the comments by Justice Anthony Kennedy during the oral arguments on the Proposition 8 case that suggested that the Court might find a lack of standing and dismiss the case, the question arises as to which justices made the decision to hear the case in the first place.  A piece in the New York Times suggests it was homophobe extraordinaire and bigot-in-chief Antonin Scalia and his cabal of ultra-conservatives:  Thomas, Alito and perhaps Roberts.  While they may have had the votes to accept the appeal, one can only hope that they find themselves unable to stop the tide of gay marriage.  If indeed the conservatives got the case on the Court docket, I hope it back fires and somehow Justice Kennedy can be brought to back an expansive national ruling for gay marriage.  The irony that Scalia shot his cause down would be delicious were that to occur.  Here are excerpts from the Times article:

If nothing else, this week’s arguments provided a telling glimpse into the process through which the court selects its docket, one that is usually shrouded in exceptional secrecy. The arguments also cleared up most of the mystery of whose idea it had been to hear the case, a challenge to Proposition 8, California’s ban on same-sex marriage. 

As it turns out, it would seem that the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject. 

The aha moment came on Tuesday.  After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand.  “It’s too late for that now, isn’t it?” he said, a note of glee in his voice. “We have crossed that river,” he said.

Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.

 

It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead. 

That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.  There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory. “I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”

“If they DIG [dismiss as “improvidently granted”] it now, after all of the fanfare and all of the attention and all of the amicus briefs,” he said, “it will look like they didn’t know what they were doing at the outset.”  Still, said H. W. Perry Jr., a law professor at the University of Texas, “it is a case that allows a lot of exit points.” The one that seemed most attractive to a majority of the justices on Tuesday was that supporters of Proposition 8 did not have standing to appeal from a decision entered against state officials. 

A dismissal on standing grounds could lead to some messy follow-on litigation in California but will probably effectively allow same-sex marriages there.  So why did the court agree to hear the case? 

The ultimate answer to that question is years away and will only come when private papers of the justices become available decades from now.   Meanwhile, many of us will be sweating bullets waiting to see what ruling is handed down in June.

On Gay Marriage, Moderation Could Be Disastrous

Harvard law professor Noah Feldman has an interesting piece at Bloomberg.com which suggests that, if the U. S. Supreme Court takes the cowardly approach and punts on directly confronting gay marriage nationwide yet strikes down DOMA, the result may well be legal chaos and a huge volume of lawsuits against states that do not recognize gay marriage or against the federal government brought by gays in anti-gay states.  The piece makes a lot of sense and suggests that if the justices are smart, they will go whole hog and strike down DOMA and find a federal constitutional right to same sex marriage.  Thus, the biggest question may be whether or not the Supreme Court gives in to cowardice rather than hand down a broad progressive ruling.  Here are excerpts from the article:

Justice Anthony Kennedy, the perennial swing voter, might well prefer some gradual way to introduce gay marriage without producing the headline “Court Grants Gay Marriage.” But the problem with this gradual strategy envisioned by court observers and attributed to Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation. Instead of attenuating criticism of the court by avoiding a single“Eureka” moment, the court would put itself, along with lower courts, at the center of hundreds more headlines for years to come. And they would all be of the same ilk: “Court Creates Legal Nightmare; Citizens on All Sides Angry.” 

To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.   .  .  . Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out-of-state marriages, and deny them state-level marriage benefits. 

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions --across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.

[Or] the anomaly would arise when legally married gay couples moved to states that didn’t recognize their unions. Presumably they would nevertheless bring their federal benefits with them -- giving rise to the same legal issues just described.

[T]he problems that already exist in a world where some states recognize same-sex marriage and others don’t would be compounded and thrown into the federal courts. 

The court’s supposed motivation to avoid declaring a general right to same-sex marriage is to allow the political process to take its course, and not impose a unified federal solution before everybody’s ready to accept it.  .  .  .  .  But this theory relies on the assumption that even a messy political process would be superior to judicial fiat because it would leave the courts out of the equation. A partial or split decision on same-sex marriage would have the opposite effect. Instead of promoting what the great Alexander Bickel called the“passive virtue” of judicial prudence, it would put judges front and center on the issue for the foreseeable future. From the court’s perspective, it would be easier just to do the right thing. Here’s hoping Anthony Kennedy sees it that way. 

Stated another way, if the Court strikes down DOMA and the boyfriend and I get married in New York or Washington, D.C., are we married for federal purposes even though Virginia could ignore our marriage absent a broad ruling in Hollingsworth v. Perry?   Candidly, I don't know, but it would be a fun case to litigate.  The bottom line is that all gay marriage bans need to be struck down as unconstitutional under the U. S. Constitution.  

Reflections on Today's Proposition 8 Oral Arguments

Predicting how an appellate court will rule is never an easy task.  One need only look at the Affordable Health Care Act ruling that upheld the Act's constitutionality via a surprise vote by Chief Justice Roberts.  Most had predicted that the Court would strike down the Act.  With today's oral arguments in Hollingsworth v. Perry there once again is a great deal of prognostication going on.  One thing that does seem likely is that the Court will not hand down a broad ruling finding a nationwide right to same sex marriage.  The issue of "standing" is very real as this blog has focused upon in the past.  Thus, the Court may punt on the matter, find lack of standing and allow gay marriage to return to California as a result.  But, if this is the case, especially in light of marriage equality strides in other nations, then by ducking the constitutional issue and allowing anti-gay bigotry to continue to exist in 30+ states, the Court will have proven that (i) America is no longer to be counted among progressive modern nations, (ii) America's claims of being the" land of liberty" and equality and freedom are, in fact, a fraud and a lie, (iii) LGBT Americans simply do not have equality under the civil laws, and (iv) hate filled Christofascists still receive special rights and will, therefore, continue to strut around feeling superior and better about themselves because the "faggots" are still legally inferior in most of America.  

There are numerous blog posts and articles that provide a blow by blow account of today's arguments (e.g., Andrew Sullivan, The Advocate, etc.), but are highlights from two overview articles on SCOTUS Blog:

Supreme Court Justice Anthony M. Kennedy, in an unusually candid process of elimination of options in public, on Tuesday worked his way through the ways for dealing with California’s Proposition 8 ban on same-sex marriage and seemed strongly tempted to just take a pass.   He appeared to be troubled about the Court entering “uncharted waters,” on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options.  So he openly wondered why the Court had agreed even to hear this case.

Focusing on Kennedy, although that is often the closest one can come to anticipating outcomes on a divided Court, was an even more reliable approach this time given that the other eight Justices were so clearly split: four friendly to same-sex marriage as a constitutional matter, three hostile to it — and, in the end, likely to attract a fourth to that view.

If the Justices, in the initial vote they will take on this case in private later this week, do not find themselves with a majority on any of the issues they canvassed, then they might well be looking for a way out.  One way would be to find that the proponents of Proposition 8 did not have a legal right to be in court to defend it, but even that was a hotly disputed issue on the bench.  The other way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted.  A decision like that, though, could take weeks or months to reach.

Should that be the outcome, it would be a huge let-down for political, legal and cultural warriors on both sides of the gay marriage issue, but would have the effect of leaving the issue to be worked out in state legislative halls and at the ballot box, one state at a time, at least for the time being.  

It was quite clear that the Court’s conservatives had wanted the case to be reviewed, because of their dislike for the ruling by the Ninth Circuit Court striking down Proposition 8.  But a decision by a controlling number of Justices to end the case as “improvidently granted” would be a way to avoid an even more widely splintered decision that might settle nothing at all of constitutional consequence on marriage.

The overall possible result?  Very likely more bigotry by conservatives and cowardice by the liberals - something that seems to be the norm.  Meanwhile, Canada, much of Europe, Argentina, much of Mexico and Brazil and South Africa are the real beacons of freedom and liberty.  Here are highlights from a second SCOTUS Blog article:

Much will be written about the Proposition 8 oral argument.  The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure.  These likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.  But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms.  First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing.  That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8.  Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority.   Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him.  Others on the left may agree.  That ruling would leave in place the Ninth Circuit’s decision.

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.  The Court would stay its hand for some time for society to develop its views further.  But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.

We will not know what the result will be most likely until June.  Meanwhile, the boyfriend tells me to stay optimistic.    Personally, I am left discouraged and in some ways find myself once again wishing my circumstances were different so that I could leave America for good.   As for the "godly Christian" crowd, my contempt for these people continues to grow exponentially.