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to Section One | to Arts & Entertainment
posted Friday, September 7, 2012 - Volume 40 Issue 36
Marriage cases on Supreme Court docket
Section One
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Marriage cases on Supreme Court docket

Court will meet later this month to decide which cases to hear by Mike Andrew - SGN Staff Writer

At least two, and possibly five, marriage equality cases will be on the docket for the U.S. Supreme Court's September 24 conference. At that meeting, the court will have its first opportunity to consider whether to hear arguments on the constitutionality of banning same-sex marriage.

At least four justices must vote to take a case for the court to consider it. If justices want more time to think about whether to hear a case, it can be 'relisted' for a later conference.

One of the cases on the court's docket, Hollingsworth v. Perry, is the Prop 8 case argued by Ted Olsen and David Boies on behalf of two same-sex couples - one male and one female - who were denied California marriage licenses as a result of Prop 8.

Federal District Judge Vaughn Walker found Prop 8 unconstitutional on August 4, 2010, because, he said, the state of California had no 'rational basis' or 'vested interest' in denying marriage rights to Gays and Lesbians.

A three-judge panel of the Ninth Circuit Court of Appeals upheld Walker's ruling on February 7 of this year. Two weeks later, Prop 8 supporters asked for a hearing by the full Ninth Circuit, but their petition was denied on June 5. Consequently, they filed an appeal to the U.S. Supreme Court on July 31.

On August 24, Olsen and Boies asked the Supreme Court to decline to hear the case and thus allow the Ninth Circuit Court ruling to stand.

The request was made 'with strong mixed emotions,' Olsen explained to The Washington Post, because of the persuasive impact a Supreme Court ruling against Prop 8 would have nationwide. 'But in the end, we represent real, live people, and if the court doesn't take the case, we've won - and our clients and thousands of others in California can get married.'

If the Supreme Court declines to take the case, or if it eventually upholds the Ninth Circuit Court decision, same-sex couples will once again be allowed to marry in California. If it reverses the Ninth Circuit, Prop 8 will stand, but in either case the ruling's legal effect will be confined to California.

The second case definitely listed on the Supreme Court's docket has a much wider application because it challenges the constitutionality of Section 3 of DOMA, the Defense of Marriage Act, which defines marriage exclusively in terms of opposite-sex couples for the purposes of federal law.

Windsor v. U.S. was argued by the ACLU on behalf of a Lesbian widow who was compelled to pay $363,000 in inheritance taxes on her late wife's estate because DOMA prevented the IRS from treating them as a married couple.

Federal District Judge Barbara Jones ruled Section 3 of DOMA unconstitutional on June 6, saying that it failed the rational basis test and therefore violated Edie Windsor's 14th Amendment right to equal protection.

Because the U.S. Department of Justice has determined that DOMA is unconstitutional and has refused to defend it further, an appeal defending DOMA was filed by the so-called Bipartisan Legal Advisory Group (BLAG), set up by Republican House Speaker John Boehner.

Normally the case would be heard by the Second Circuit Court of Appeals, but because of Windsor's age, the ACLU filed a petition July 16 asking the Supreme Court to decide the case without waiting for the Second Circuit.

If the Supreme Court declines to hear Windsor, BLAG's appeal to the Second Circuit will go forward, and the high court may have another opportunity to consider taking the case if and when the Second Circuit decision is appealed.

The remaining DOMA cases - Golinski v. OPM, Gill v. OPM, and Massachusetts v. HHS - are also listed on SCOTUSblog as up for consideration at the September 24 conference, but they have not yet been posted on the court's official docket.

In Golinski, Lambda Legal sued on behalf of a Lesbian federal employee who was unable to get spousal insurance benefits for her legally married wife. U.S. District Judge Jeffrey White ruled on February 22 that DOMA violated Karen Golinski's Fifth Amendment right to equal protection.

BLAG then appealed Golinski to the Ninth Circuit, but the Justice Department asked the Supreme Court to pre-empt that court and hear the case, so it could be decided with two other DOMA cases from the First Circuit.

Gill was filed by GLAD (Gay and Lesbian Advocates and Defenders), based on a similar federal benefits issue. On July 8, 2010, U.S. District Judge Joseph Tauro found that DOMA violated the Fifth Amendment's equal protection clause. His ruling was upheld by the First Circuit Court of Appeals on May 31, 2012.

The same judge also found that DOMA violated the 10th Amendment and the Constitution's spending clause in Massachusetts v. HHS. The First Circuit upheld that ruling on May 31.

The Supreme Court could decline to hear any of the DOMA cases. In that event, federal circuit court decisions would control marriage rights within the jurisdictions of those circuits. In other words, there might be a patchwork of marriage laws with different rules in each of the nation's 13 circuits.

If the Supreme Court strikes down DOMA in these cases, same-sex couples who are now legally married will be entitled to the same treatment as opposite-sex spouses under federal law. Couples who live in states where same-sex marriage is not legal will see a change only if the Supreme Court finds an affirmative right to marry in the Constitution - an outcome most legal experts believe is unlikely.

If the court upholds DOMA, nothing will change - couples married under state laws will remain married, but they will be denied equal treatment by the federal government. In that case, DOMA could still be repealed by Congress. The Respect for Marriage Act, which aims to do just that, is still pending. Both of Washington's U.S. senators, Patty Murray and Maria Cantwell, are co-sponsors, as are all the state's Democratic House members.

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