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. 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. 😉

  2. Argentina, also…… They have catholics but far fewer fundamentalist christians.

  3. 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.

  4. 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.

  5. “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.

  6. “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

  7. nick,

    See what I mean Sane – 5; Insane – 1

    This is going to be more fun than a barrel full of monkeys.

  8. 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.

  9. 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:

  10. 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.

  11. 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:

  12. 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.

  13. 5-4 for, Kennedy.

    Why do we need to ask government for permission to marry in the first place? This shouldn’t even be up for debate.

  14. 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.

  15. 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.

Comments are closed.