Supreme Court Grants Review Of Two Historic Same-Sex Marriage Cases


The U.S. Supreme Court
The U.S. Supreme Court

The Supreme Court has accepted two cases that deal with the issue of same-sex marriage. One of the cases is that of Edie Windsor (left) challenging the Defense of Marriage Act (DOMA) — a law supported and signed by former President Bill Clinton to bar federal recognition of same-sex marriage. On October 18, 2012, the Second Circuit struck down DOMA in Windsor v. United States. Also accepted is Hollingsworth v. Perry dealing with “Proposition 8″ in California.

I will be discussing the cases tonight on Ed Schultz on MSNBC around 8:50 pm.

Edie Windsor and Thea Spyer (above) were a couple for 44 years — engaged in 1967 and married in Canada in May 2007. After Thea died, after suffering from multiple sclerosis complications, the federal government refused to recognize the marriage and taxed Edie’s inheritance from Thea.

In Hollingsworth, opponents of same-sex marriage asked the Court to review the ruling by the Ninth Circuit that upheld a lower court order striking down the amendment of the state’s constitution to prohibit same-sex marriage in California. Notably, however, the Ninth Circuit ruled on narrower grounds: that Proposition 8 violated the Constitution because it took away a right to same-sex marriage that had existed in California as a result of a decision by the California Supreme Court. It did not rule on a broader right to same-sex marriage.

The combination of the two cases is telling and historic. It seems to intentionally offer the broadest scope for a possible ruling. That does not mean that the Court will vote such sweeping precedent, of course. These cases can narrow as result of voting blocks on the Court. Must notably, the DOMA case has some serious standing questions, particularly directed at the members of Congress defending the law. However, there is ample basis in these cases to achieve what civil libertarians have long strived to attain: a recognition of a right to same-sex marriage. It is a remarkable change for a Court that has carefully avoided any ruling on the volatile issue for over a decade.

For those of us who have long supported the recognition of this right, this is both exciting and a bit unnerving. The potential of the ruling would be difficult to overstate. It could be the Brown v. Board of Education for gay couples or their Plessey v. Fergusan. I continue to have faith in the natural progression of the law toward the expansion rather than the limitation of human rights and civil rights. It would seem odd to accept such a broad basis for a ruling only to reach a narrow opinion avoiding the main issue. However, this may come down to Justice Kennedy, though it will be interesting to watch Chief Justice Roberts in oral argument. Roberts could avoid recognizing any constitutional right in favor of a state’s right to determine such questions in Hollingsworth. That would still leave the federal question in Windsor however. The point is that there are always “outs” if the Court split 4-4 with a single swing voter. Obviously, I hope that there is a solid majority on the Court to call the answer of history and embrace the right of marriage regardless of the genders of the couple. This is a Court that not long ago ended its shameful history of allowing the criminalization of homosexuality. Justices like Scalia and Thomas continue to espouse this view, but the Court itself has evolved with society. Hopefully this evolution will allow for a final and elevating recognition of the rights of millions of gay and lesbian citizens.

Just this week the Mexican Supreme Court also took a critical step toward such recognition.

Here is the announcement of the Court:

DAN’S CITY USED CARS, INC. V. PELKEY, ROBERT The petition for a writ of certiorari is granted.

OXFORD HEALTH PLANS LLC V. SUTTER, JOHN I. The motion of the Chamber of Commerce of the United States
of America for leave to file a brief as amicus curiae is granted. The motion of DRI – The Voice of the Defense Bar for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is granted.

The petition for a writ of certiorari is granted. addition to the question presented by the petition, the are directed to brief and argue the following question:
petitioners have standing under Article III, §2 of the Constitution in this case.

In parties
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

52 thoughts on “Supreme Court Grants Review Of Two Historic Same-Sex Marriage Cases

  1. It’s pretty much a given how Ailito, Scalia and Thomas are going to rule as it is for Ginsberg and Breyer, but it will be interesting to see where Roberts, Kennedy, Kagan and Sotomayor comes down on these issues. I see a 5-4 against, but Roberts and/or Kennedy may surprise me on this one. Either way, I see a 5-4 split the likely outcome.

  2. Gene,
    I disagree about Scalia. I think Scalia may be one of the wild cards. If you read the lower court opinions, it sounded almost as if they were being addressed to him, using some of the arguments he has posited before on other matters. We are just going to have to wait and see, but I think the SCOTUS will allow same sex marriages.

    I agree that Thomas and Alito are knee jerk reactionaries and will vote against. That is, unless some of their conservative colleagues convince them otherwise. No liberal or progressive is going to convince them of anything.

  3. puzzling,

    On that we agree. Aside from a license having value in recording the relationship for later purposes such as contracting, probate, etc., the composition of the couple is really nobody’s business but the couple as long as both are of the age of majority. To insist they have to be man and woman is simply a religious prohibition in different clothing. Which in a way makes it a cross-dressing law and at odds with the Lemon test.

  4. OS,

    Maybe. I tend to err on the side of Scalia being on the wrong side of any given argument though. To say I have a jaundice view of his general performance would be an understatement. Bob, Esq. doesn’t call him the Dark Lord for no good reason. :mrgreen:

  5. Now this will entail months of suspense. I am going to relish every moment and look forward to all the sane and insane comments that will be flowing non-stop from the keyboards on all sides of the issue.

    I fully support same sex civil unions and all the legal benefits to which each partner is entitled.

    I care not one whit for the sanctity of marriage as my religious background is Congregational where marriage was never considered a sacrament and all were considered “civil unions” so the sanctimonious proclamations coming from self-described religious folk never had nor have impact on my opinion.

    I do, however, recognize that those who come from a background of the “Sacrament of Marriage” have a great deal of trouble with civil unions. That includes those who wish to be joined together in a same sex partnership.

    If we can get a favorable ruling then the individual battles with the Churches, Temples, Synagogues, and Mosques may commence.

    I agree with Gene that the ruling will probably be a 5-4 split … the suspense will be in which direction.

  6. Roberts will undoubtedly be voting for anything that promotes homosexuality. Roberts is a closet leftist, and he proved that with his unique “concept” that a government may tax someone for not buying something that the government orders him to do. But Roberts also has other skeletons in his closet. For years, Roberts was rumored to be a homosexual. Now, as the article below indicates, just because someone looks like a homosexual, prefers to work and play with other homosexuals, and acts like a homosexual, doesn’t necessarily mean that he is a homosexual. Sometimes just because an animial quacks like a duck, walks like a duck, and swims like a duck doesn’t mean that the animal is necessarily a duck. It could be swan, for example…….. if you happen to be taking certain combinations of heavy drugs. But the picture of Roberts and his college buddies at Harvard at the bottom of this webpage tells all. The scent of Robert’s “alternate lifestyle” literally leaps off the computer screen:

  7. I wonder if there’s any karma w/ this occurring on the71st anniversary of Pearl Harbor. My parent’s generation all remember where they were that Sunday, just like we all remember where we were on that Tuesday. There’s been no mention of it here, I just thought it should be noted. That’s all.

  8. “The Supreme Court’s liberal wing—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—is likely to treat the Defense of Marriage Act with great skepticism. Conservative Justice Antonin Scalia, the court’s most outspoken opponent of gay rights, is expected to be more deferential to the congressional statute, probably joined by Justice Clarence Thomas. Justice Samuel Alito has no well-defined record on such questions, but typically takes conservative positions on social issues.

    A larger question mark hangs over Chief Justice John Roberts, who in cases such as the June decision on Mr. Obama’s health-care law has been sensitive to the court’s long-term institutional interests in maintaining credibility with the public and other branches of government.

    If Chief Justice Roberts votes with the opponents of gay marriage, the deciding voice almost certainly will be that of Justice Anthony Kennedy, who has been the court’s most impassioned defender of gay rights.

    In 1996—the same year the Defense of Marriage Act was passed—an opinion by Justice Kennedy struck down Colorado’s Amendment 2, a voter initiative that barred state and local government from protecting gays from discrimination. Noting that the initiative nullified antidiscrimination measures previously enacted by Denver and other cities, Justice Kennedy wrote that it seemed born of “animosity” toward gays and served no valid purpose.

    Seven years later, in Lawrence v. Texas, the court overruled its own 1986 precedent to strike down a state law criminalizing gay sex. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct,” Justice Kennedy wrote for the court.

    The Constitution’s framers used such broad terms as “liberty” without defining them because “they knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Kennedy wrote.

    In dissent, Justice Scalia accused the majority of signing on to the “so-called homosexual agenda,” and he said its reasoning would likely lead to recognition of same-sex marriage.” WSJ

  9. “Roberts will undoubtedly be voting for anything that promotes homosexuality. Roberts is a closet leftist”


    Next to you Attila the Hun would be a liberal healer.

  10. 6-3 in favor, due to Kennedy and Roberts. However, my certainty on many things in the past leads me to treat this as a nail biter.

  11. Ralph, stop talking about yourself.

    Interesting that both Mexico and Canada allow gay marriage. About time for the US!
    Its the 21st Century for gods sake, why do I have to keep reminding people of this fact? If someone had told me Mexico would beat us in this law, I would have thought they were crazy. A Catholic nation passing gay civil rights before the land of the free, imagine that.

  12. I would like to know how the vote on granting / denying the writ went.

    It might give a clue.

    Good ideas up-thread … xcept for Attila the Hun perhaps. ;)

  13. Shano and Mike, I am simply wowed by your wit, perspicacity, and verbal verve. Such impressive utterances! Feel better about yourselves, now?

  14. First let’s not insult Attila, he did not concern himself with either religions or sexual preferences.
    Neither did the RCC before 800 CE (guessing on date).
    And yes Adamo, they did make a laughing stock of you. Suck it up, as one hears here occasionally.

    Gene put it right. In my words, the government regulates property, contracts, benefit qualification, insurance, etc. And when they are dependent on a ceremony and legal approval of who may be participants in the ceremony, then we got this mess.

    As Kennedy said, the Framers knew that the world would develop and did not define liberty. It needs to be flexible, if I understand him right.

    Hope this warmed over hash will do. When lacking ideas, approve or disapprove of others’.

  15. “Feel better about yourselves, now?”


    Actually I do feel better since your utter cluelessness makes me smile, especially because you imagine yourself to be intelligent. I will give you this though, you are a past master of the harangue empty of content and a scholar in your own mind..

  16. Mike, as Islamo-pandering leftist you are automatically submoronic, completely lacking in knowledge and totally incapable of even the most basic reasoning. It shows in you case, and you cannot hide that fact.

    Nick, I hope that your dump was a brain dump. You really need to clear out that extensive waste matter that you’ve accumulated. Maybe you could share some of your brain dump with Mike. He needs all the help he can get. The waste matter would at least fill in some of empty space.

  17. My prediction is that DOMA gets overturned and the court issues some narrow ruling on Prop 8, thereby avoiding a ruling on whether gay marriage is constitutionally mandated. If the court does address that issue, I suspect it is more likely to deny a constitutional right than to find such a right. From a strategic perspective, I think those supporting a constitutional right to marriage would be better off waiting a few years for a ruling as time is on their side.

  18. It’s beginning to sound like one of those Mock Horseracing Announcers on who’s going to win. :)

    “…and we’re at the wire, it’s Chief Johnny to win, Raging Kagan behind, and Ruthie Ginsburg by a nose ! “

    I’m going for the 6 to 3 odds and betting my horse “Civil Righteousness” to Win.

  19. Ralph wrote:

    “Shano and Mike, I am simply wowed by your wit, perspicacity, and verbal verve. Such impressive utterances! Feel better about yourselves, now?”

    Just for clarity sake, you would amount to a mere appetizer if you tried to engage Mike S in a battle of wits and subsequently he had you for lunch. Certainly he wouldn’t be very satiated if you were curious if he felt better about himself afterward. But all you would have to do is keep on typing and make yourself look like a fool even more, garnering a grin or two from them.

    Since you seem to prefer to use metaphors in your attempts at wit, and your subsequent post about Nick shows this; Well how about I offer this.

    it does seem that in order to engage you in a battle of wits, one has to resort to playing marbles, because those marbles are as sharp as your wit is dull and equally as childish a game because all you can do is insult since you don’t have the faculty to engage someone in a lively debate or argument about something with substance beyond the obvious.

    Next time if you want to share your wit and wisdom with others you would consider both worthy and your intellectual peers, I might suggest subscribing to and be a guest contributor.

  20. What Darren said. We have had a plethora of intellectual wannabes and has-beens trying to match wits with some of the sharpest minds in the blogosphere. It really is not a fair fight. More like a train wreck of fail.

  21. Darren,

    Some appetizers taste really bad. Some appetizers have really bad taste. Some appetizers are apparently right wingnut homophobic Christo-fascists. You got the better forum for him right though for sure. The more ol’ Ralph posts the more I sympathize with poor Ralph Adamo from New Orleans who doesn’t want anyone to think he’s that guy. It’s enough to make a guy want to change his name.

    To Ralph from NO: We know it’s not you, buddy! Happy Holidays!

  22. mespo,

    I hope you’re right. Considering the general beating civil rights have been taking lately, a win would be good.

  23. I am shooting from the hip, but maybe this largely unseen minority of “sexual deviants” is large enough to make a positive Sct judgement equal in effect to the ’54 Brown vs decisiion.

    Let us hope that it is accepted more peacefully and with a shorter resistance, which we still fight, than the Brown one has had.

    I am an easy match, I always soften up when I see people kissing and not fighting. And then if they have kids they love, then what’s to hate.

  24. Mainly agree with Waldo, but last night at dinner I picked 6 – 3. Remember Ted Olson probably will be arguing the case for the pro gay marriage side, and as George Bush’s former Solicitor General he is very simpatico with the republicans on the court.

  25. There is simply no secular legal justification to uphold DOMA or to prohibit same-sex marriage. The sole arguement stems from the Bible and the long standing tradition based on the Bible (think slavery). It is appalling that any Justice might sit on our nation’s highest court, claim to be experts, scholars, defenders and arbiters of our Constitution and then publically vote to support their personal religious beliefs over the clear dictates of that Constitution. The decision should be 9-0. That said, 6-3 is more likely, because some on the Court do support their religion more than the Constitution and they have no shame about it. .

  26. How can the cases be termed “historic” if they are right out of the box and have not even been decided by the Supreme Court? Did you mean “hysteric” or “historectomy”?

  27. Poor Ralphie, a classic case of engaging in a war of wits badly unarmed.

    What surprises me is that the justices who pretend to want the government out of people lives insist the government simply MUST get into this while the justices that people like Ralphie say want to dictate how we are to live are assumed to be in favor of getting the government out of business of controlling people lives.

    THe worst thing the little 4 have done to the USSC is to make it obvious how easily they can twist their minds into logical pretzels to justify ruling the way they want instead of allowing logic, consistency and the law to make the ruling. I suppose there is always some of that in every court but I don’t know that any justice has made it as obvious as those 4 legal midgets that rule the court. Its no wonder respect for the court is at an all time low

  28. Ralph, your comments are just sour grapes, sorry. Also, no adult male comfortable in their own skin makes the kind of silly, jaded commentary regarding gay people that you engage in. Is there something, you know, you’d like to get off your chest? I’ve literally helped hundreds of gay men come out, and you have many of the Signs and Symptoms…

  29. if the supreme court followed what GOD wrote over the last four years the public would have saved millions. if the religions want to stop same sex unions then the religions need to kill all their off spring. it will stop every freaking problem in the world in a matter of fifty years. God gave you free will. the supreme court was told that same sex unions would be legal more than once over the last four years on other sites.

    boehner said that another week was wasted in d.c.
    I say that another year got wasted by the congress that was told to go home, in THE BIBLE. the tax payers will pay for it. just like every government was told to close all religious institutions, and don’t even go to a christmas play. the religions are teaching the next generation to speak against GOD. just why is the pooh pooh pope tweeting? is it so pooh pooh can falsely claim to be a middle man and claim that JESUS is king and not GOD? the prophecy says that this is the last popee, is written in cathollowcism. keeping that in mind does any just ice listen to the popee pooh? the pope has said to give all to GOD that belongs to GOD then took it off the site. did the supreme court deny that GOD is here, and religions call GOD A LIVING GOD then the theorists lie to the president.

    so there are thousands of things each day that do not get posted because of the churches, with, over 40,000 dead in syria alone. is the christian church also calling them lost?

    how long does it take a scientist to make a human eye?

    and if james is right about ralph, it is not a problem with GOD. I do not care!

  30. To Mike, Shano, James, Gene, Darren, Nick, and all the other submoronic, ultraretinesque “mentals” on this Islamo-pandering leftist website: Your lack of knowledge and lack of ability to reason is so evident that destroying your “arguments” is about as challenging as using a machete to cut through melting butter.

    Each of you do have one skill, however, and that is an ability to avoid discussing anything that you find “problematic” such as the facts and the truth, and so you simply engage in evasive, jejune banter in an attempt to conceal the facts and the truth. But you should not be patting yourselves on the back for your obvious skills in this area. After all, one cannot expect to be considered a real leftist unless he/she possesses at least some skills in evading the facts and the truth. And good liars and con artists also need to possess this skill at prodigious levels.

    Having a discussion with any of you is like me having a discussion with Nathan Thurm. Thurm is an untuous, oleaginous character–much like yourselves–created by actor and comic Marty Short. Here’s a clip of such a discussion with Harry Shearer doing a brilliant comic portrayal of the late Mike Wallace:

    Please note, however, that your banter is not funny like Short’s is. Marty Short is, after all, is a marvellous talent and is making fun of pseudo-“intellectuals” like you who are skilled at only one thing: evasiveness.

  31. Ralph, I agree Nathan Thurm was one of Short’s great characters. When I comment to you I visualize Ed Grimley..his best charcter.

  32. “Each of you do have one skill, however, and that is an ability to avoid discussing anything that you find “problematic””


    I would be happy to discuss anything with you. The problem is none of your comments contain anything but attack on people and things. There is no basis for discussion when all your content is invective.

  33. Please note that your banter Ralph is just about as funny as that of Hoover. Did you two share a closet in college?

  34. Ralph:

    The only person you are impressing here is yourself. Your approach essentially is to accuse us of evasiveness on the issue and making feeble attacks on those we argue with when in actuality that is the same approach you attempt to use against us and just to point it out, it is not working.

    Why don’t you actually make a argument that you are prepared to offer evidence and reason to support and be successful in defending your position with any of the persons you have called out as being submoronic.

    How about offering some real examples as to why the Jonathan Turley website is an islamo pandering leftist website. I would be very, very interested in seeing how a person can defend a position such as this when the article contributors have several times weekly brought to light the injustices and inhumane practices of several adherents or policy makers of factions of that religion.

    Since you seem to be quite adept at a Cut-and-Paste approach to expression, (other than perhaps not being able to paste the correct link from youtube the first time) look in that online source of big words you paste here such as perhaps and actually read what the word pandering means. How does the definition of pandering apply here?

    Or maybe support your assertion of “Roberts will undoubtedly be voting for anything that promotes homosexuality. Roberts is a closet leftist” and your support of this position is more metaphor “and you continue with “But the picture of Roberts and his college buddies at Harvard at the bottom of this webpage tells all. The scent of Robert’s “alternate lifestyle” literally leaps off the computer screen

    Well looked at this tome of wisdom and information you provided as the link and this is what I found:

    UTR readers have also flooded A3G’s inbox with emails citing the following “evidence” that Judge Roberts is gay:

    1. Despite being handsome, brilliant, rich, and nice — in other words, prime marriage material — Judge Roberts didn’t get married until the relatively late age of 41.

    How does one evidence this as being a sign of homosexuality? My wife and I did not get married until she was 41 and I was 31. We are not gay. Neither are the millions of others who chose to wait. Would a person who was actually gay absolve themselves of the homosexuality when at 41 they suddenly get married at 41 to a person of the opposite gender?

    And another source of proof you offer as gospel

    3. Judge and Mrs. Roberts have adopted rather than biological children. (The “theory” behind this fact, it seems, is that we therefore have no “proof” of the consummation of the Roberts’ marriage

    Could it be possible one of them has a condition called “infertility” or that they “chose” to adopt for any reason other than failing to consummate the marriage?

    And here is more laughable “proofs” you offer: A picture of Justice Roberts eating dinner with two other men along with the caption…

    John Roberts is gay! Look at those smiling buff friends snuggled next to the next Supreme Court Justice on Martha’s Vinyard displaying the groumet meal they just made, and THEY will tell you. Now let’s hope Roberts is actually confirmed before he’s outed like a certain New Jersey Governor!


    4. Judge Roberts has associated with gay people in the past:

    (a) As everyone knows by now, he did pro bono work on behalf of gay rights activists, helping out colleagues in their preparation of court filings and oral argument in Romer v. Evans, 517 U.S. 620 (1996).

    (b) While Judge Roberts was at Harvard, his pre-law advisor was William LaPiana… who was outed as gay

    So his law advisor at college was gay proves in your juvenile understanding of logic that Justice Roberts is as well.

    It is apparent to probably all the readers, excluding of course yourself, that this is the caliber of evidence you support your arguments with. I would venture to say that based upon this you are one of those who subsribes to the gospel of conspiracy theory sideshow acts.

    If you read somewhere in or listened to Art Bell that there were 250,000 Vietcong in British Columbia and 100,000 Mongul Horsemen in the Yucatan Peninsula waiting for the illuminati at the UN to signal the invasion of the US you would be scrambling put on your tinfoil hat and join your friends at the Westboro Baptist Church waiting for God’s rapture against the homosexuals of the world.

    But I am going to offer you a chance to disprove my assumptions that you are one who is just some homophobic half wit by actually arguing my destruction of your false evidence against Justice Roberts. But, you will likely just resort to your usual self and that is not to be expected.

    Put your money where your mouth is and actually have the courage to go toe to toe against those submorons you name. If not, you are free to depart this bog and pester someone else on stormfront or NAMBLA or whatever you choose. We would all prefer the latter.

  35. Westboro Baptist Church are fearful of the meek gay. That is why they are warring against them. .Westboro Baptist Church acts like the I will do worse to you than them sodomites.
    Isaiah 1 >>
    King James Version, 15And when ye spread forth your hands, I will hide mine eyes from you: yea, when ye make many prayers, I will not hear: your hands are full of blood.
    It is clear that the Sodomites were religious acting like they we’re godly not being like Jesus is at all.

  36. Antonin Scalia Defends Legal Writings Some View As Offensive, Anti-Gay
    By GEOFF MULVIHILL 12/11/12

    PRINCETON, N.J. — U.S. Supreme Court Justice Antonin Scalia on Monday found himself defending his legal writings that some find offensive and anti-gay.

    Speaking at Princeton University, Scalia was asked by a gay student why he equates laws banning sodomy with those barring bestiality and murder.

    “I don’t think it’s necessary, but I think it’s effective,” Scalia said, adding that legislative bodies can ban what they believe to be immoral.

    Scalia has been giving speeches around the country to promote his new book, “Reading Law,” and his lecture at Princeton comes just days after the court agreed to take on two cases that challenge the federal Defense of Marriage Act, which defines marriage as between a man and a woman.

    Some in the audience who had come to hear Scalia speak about his book applauded but more of those who attended the lecture clapped at freshman Duncan Hosie’s question.

    “It’s a form of argument that I thought you would have known, which is called the `reduction to the absurd,'” Scalia told Hosie of San Francisco during the question-and-answer period. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

    Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

    Then he deadpanned: “I’m surprised you aren’t persuaded.”

    Hosie said afterward that he was not persuaded by Scalia’s answer. He said he believes Scalia’s writings tend to “dehumanize” gays.

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