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:
FRIDAY, DECEMBER 7, 2012
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.
HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
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.
UNITED STATES V. WINDSOR, EDITH S., ET AL.
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.