Marriage Equality Could Return to California Next Month as Supreme Court Considers Cases

Posted by Justin Snow
September 24, 2012 2:51 PM |

Supreme Court of the United States

The Supreme Court's nine justices return from their summer break today with a number of cases that could have strong implications for marriage equality awaiting their consideration.

Although the high court's new term does not formally begin until next Monday, Oct. 1, the justices will meet in conference today to consider which of the hundreds of petitioned cases will be heard. Those cases the court will definitely hear arguments on are expected to be announced tomorrow

Among those is the challenge to California's Proposition 8, which amended the state's constitution four years ago to ban same-sex marriage, just months after the state had granted that right.

That case arrives at the Supreme Court after being struck down by the Ninth Circuit Court of Appeals. Supporters of Proposition 8 petitioned the case after the court of appeals refused to rehear the case in June and hope that the Supreme Court will reverse the lower court's decision and keep the amendment intact.

The appeals court ruled in February that California could not take away rights that the state had previously granted to residents. That ruling came after a U.S. district court also struck down Proposition 8 on the grounds that no state could deny same-sex couples the right to marry.

Whether the Supreme Court decides to hear arguments on Hollingsworth v. Perry could have an immediate impact on gay Californians. If the Supreme Court immediately announces it will hear arguments on the Proposition 8 case, a ruling would likely not come until summer 2013. However, if the court decides not to hear the case same-sex nuptials could resume within days.

Attorneys for opponents of Proposition 8 have asked the Supreme Court not to consider the case.

Ted Olson

Although the plaintiffs opposing Proposition 8, including lead attorneys Ted Olson and David Boies, grant the case is an "attractive vehicle" for resolving constitutional questions surrounding marriage equality, they argue the decision by the Ninth Circuit Court of Appeals to strike down Proposition 8 does not warrant review because it does not conflict with any Supreme Court decision or any other court of appeals.

Moreover, they argue that each day gay Californians' right to marry is denied "is a day that can never be returned to them — a wrong that can never be remedied."

Olson, the former solicitor general for President George W. Bush and a conservative lawyer, upset some in the LGBT community earlier this month when it was revealed he was helping Republican vice presidential candidate Paul Ryan prepare for his debate with Vice President Joe Biden. Nevertheless, he has been applauded for his involvement in what he has described as "one of the last major civil rights battles of our country."

If the Supreme Court decides not to hear the Proposition 8 case, then the decision by the Ninth Circuit Court of Appeals, which encompasses several Western states, stands and the appeals court would be left with the final task of issuing a mandate declaring the case closed. With Proposition 8 declared unconstitutional, same-sex weddings could resume in California before the end of October.

Although many advocates will be anxiously awaiting the Supreme Court's Sept. 25 announcement, it will not be definitively known if the court is not considering the Proposition 8 case until Oct. 1 when the court officially announces those cases not being considered.

Fred Sainz, vice president of the Human Rights Campaign, cautions, however, that there is no certainty the Supreme Court will make an announcement in either regard, meaning the case could stay on the court's calendar for a number of weeks.

"It could be they want to receive briefs on [the Defense of Marriage Act] cases before they consider Perry," Sainz said during a conference call with reporters earlier this month.

Indeed, the court now has the opportunity to consider a number of challenges to the 1996 Defense of Marriage Act, which forbids the federal government from recognizing same-sex marriages and has been declared unconstitutional by courts across the country.

Only one of four DOMA challenges is on the justices' conference calendar for today. However, the high court has been asked to consider three cases that have not yet gone to any court of appeals.

While the implications of the Proposition 8 case may be more immediate if the case is not taken up by the court, many legal scholars predict the Supreme Court will take up at least one DOMA challenge and rule on the federal law's constitutionality before the end of this term, June 2013.

According to Brian Moulton, legal director for HRC, oral arguments are unlikely to start on one of the DOMA cases until the spring.

During a speech at the University of Colorado in Boulder last week, Justice Ruth Bader Ginsburg also said she thought at least one DOMA case would be heard by the high court this term, stating, "I think it's most likely that we will have the issue before the court toward the end of the current term."

UPDATE: On Tuesday, the Supreme Court made no announcements on the Propsition 8 or DOMA cases. Read more here.

[Photos: Supreme Court of the United States and Ted Olson.]


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