Supreme Court Will Hear DOMA and Prop 8 Challenges: An Analysis

Hollingsworth v. Perry, challenging California's Proposition 8

The American Foundation for Equal Rights (AFER) is leading the charge against California's ban on same-sex marriage and achieved extraordinary success. That success reached its zenith when Judge Vaughn Walker issued a sweeping decision declaring that by discriminating against gay couples, Prop 8 violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The Ninth Circuit affirmed the decision, but took a step back from that broad holding, finding only that Prop 8 was unconstitutional because it took away already existing rights.

The Supreme Court is interested in the broader holding. Its order takes as the question presented whether, under the Fourteenth Amendment, California can define marriage as between one man and one woman. It did not limit its consideration of the case to the Ninth Circuit's taking away theory.

Plus, the Court will return to the "standing" question. If you recall, the Ninth Circuit Prop 8 decision took extra time because that court had to determine if the proponents of Prop 8, ProtectMarriage, could stand in the shoes of the state to defend the law when the state government refused to. The Court would like to determine that for themselves, and because jurisdictional issues are determined de novo – "from the beginning" — the Supreme Court is more than free to come to a different conclusion than the Ninth Circuit.

Windsor v. United States, challenging the Defense of Marriage Act

WindsorThe ACLU brought this challenge on behalf of Edie Windsor, who had to pay an exorbitant tax bill upon the death of her partner where every heterosexual widow would not. If you recall, this is the case where a relatively conservative panel of the Second Circuit held that heightened scrutiny is the appropriate level of scrutiny for DOMA and any state action that discriminates on the basis of sexual orientation.

This is the only DOMA case for which the Court granted a hearing. It said nothing about Gill, which was the First Circuit case decided on "rational basis with bite" and included a Tenth Amendment question. But, Gill was also the case in which Justice Kagan would have had to recuse herself, so that was the least likely to be granted.

The Court chose the Government's question presented — Whether DOMA Section 3 (one-man, one-woman definition of marriage for federal purposes) violates the Fifth Amendment — but also included two other questions: Does the fact that the Government agreed with the Second Circuit's decision deprive the Court of jurisdiction to hear the case? And, do House Republicans, who took up defense of DOMA when President Obama refused, have standing?

We all understand the main question. The second question is a bit arcane. Normally, a winner cannot appeal a lower court ruling. The Obama Administration argued at the Second Circuit that DOMA is unconstitutional, so a decision declaring DOMA unconstitutional agrees with the Government's position. That decision certainly made the ACLU and Edie Windsor winners, but whether it made the Government a winner — and thus, incapable of appealing it — is less clear. The Government argues that the Second Circuit's decision was a decision against a duly enacted Act of Congress that the executive was still obligated to enforce, notably against its will. Therefore, the decision was, theoretically, still against the Government.

By these questions, the Court gave itself space to answer both the underlying merits of the DOMA challenge and the scrutiny question. After all, it may not be possible to decide if DOMA Section 3 is unconstitutional without first deciding how to answer the question, i.e., heightened scrutiny versus rational basis.


SupremesAnalysis

Without being a fly on the wall in conference, the text of the orders and the decision to grant in certain cases but not others speak volumes about what happened, why it took so long, and what this could all mean down the road.

Each order includes an "opt-out." I mean that metaphorically, of course. The orders on both Hollingsworth and Windsor include jurisdictional questions that could decide the entire matter outright without letting the Court get to the substance of either case. So, if some of the justices feel their position won't get 5 votes, they may be more inclined to live to fight another day by making non-precedential decisions on jurisdiction now. This speaks to one of the main reasons why it might have taken so long to come to these decisions: strategy. The ideological wings of the divided Court may have been looking for ways to have a fall back position if they could not get a swing vote on their side, and sometimes, jurisdictional questions that prevent wide application of a decision beyond the one at hand offer that kind of safe default position.

What about scrutiny? The Windsor order did not specifically mention the appropriate level of scrutiny, but by taking the Windsor case, the Court may have recognized that the hazy scrutiny standard it has left in place since Lawrence v. Texas is no longer tenable. Windsor was the only DOMA case that forced the Government to stake out a scrutiny position; the Second Circuit was unique in that it had no historical precedent on the appropriate level of scrutiny for anti-gay laws. And, the Windsor decision put the level of scrutiny front and center when the court held that heightened scrutiny was necessary. The Court could always continue to muddle through or decide that DOMA is unconstitutional under any level of scrutiny and leave the law an unclear patchwork of scrutinies that varies from circuit to circuit, but the grant and its wording gives the Court the space to make a scrutiny decision.

Olson-boiesBaker v. Nelson is nowhere to be found. Baker is a 1971 case where the Supreme Court denied a hearing on a gay marriage case from Minnesota "for want of a federal question." That is, back then, the Court said that Minnesota's decision to deny licenses to gay couples was not a matter for the federal constitution. To this day, almost every brief supporting a marriage ban refers to Baker, arguing that it forecloses any Supreme Court review. That argument ignores 40 years of gay rights law, in general, and Romer v. Evans and Lawrence v. Texas, in particular, which changed the relationship between gay persons and federal law. The Court may indeed address, and likely explain away, Baker, but the wording of its grant suggests that it is not at the forefront of the Court's consideration.

Is this a good or bad result? Granting Windsor gives the Court a unique opportunity to come together to declare DOMA unconstitutional, though it is not clear that the Court is ready to mandate heightened scrutiny. But, there is no doubt that the grant in Hollingsworth took me by surprise. Its framing the case in the broadest way possible offers a chance for a monumental victory or a great loss because the breadth of the case could have ramifications outside California. This is what Ted Olson, David Boies, and the AFER team wanted all along and the country is so much closer to accepting the freedom to marry in great part because of AFER's skillful engagement with the American public on marriage freedom.

What happens next? The Court has set the stage for a March argument and a decision on the last day of the Court's current term in late June 2013. For now, the Ninth Circuit's stay that prevents the implementation of Judge Walker's original order remains in place. Gays cannot marry in California just yet. But, they are oh so much closer to a resolution.

In the coming days, I will parse out more details and discuss some of these and other implications of this development. Please ask questions in the comments section and I will do my best to respond as soon as possible.

Congratulations to the AFER team and its plaintiffs, Kris Perry and Sandy Stier, Jeff Zarrillo and Paul Katami, and to the ACLU LGBT Project team, James Esseks and his attorneys, and Edie Windsor. The sacrifices they are making for all of us should never go unnoticed.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Comments

  1. Bingo says

    “Normally, a winner cannot appeal a lower court ruling.” Isn’t that what the Coalition for the Protection of Marriage just did in Sevcik v. Sandoval? Or is there a distinction between appealing a district court ruling and a writ of certiorari to SCOTUS?

  2. KT says

    I think the most obvious question is what happens if the Court rules in favor of Prop 8? Will that only be a speed bump or will it set us back for years? I guess it depends on how narrow they decide the question.

    Honestly, I think its pretty obvious at this point that the Supreme Court is impossible to predict. Maybe we should just do ourselves a favor and not obsess over it for 7 months.

  3. Bingo says

    RE: “it may not be possible to decide if DOMA Section 3 is unconstitutional without first deciding how to answer the question, i.e., heightened scrutiny versus rational basis.”

    …unless it fails rational basis and there’s no need to do any further analysis?

  4. Bingo says

    You give the AFER team too much credit. They change their position in response to each event. They wanted SCOTUS review, then they asked SCOTUS not to take the case, now they see historic potential. Spinmeisters!

  5. RK says

    My concern on the SCOTUS taking the Prop. 8 case, and maybe you can speak to this, is that the conservatives on the court feel they can win this one considering their loss on Obamacare. It seems very political. I think this should worry gay Americans as a negative ruling would have profound consequences for equality.

  6. Mark says

    Ari,

    I remember asking you when the Proponents petitioned for a en banc rehearing at the 9th Circuit level of whether that would open the case to reviewing the Standing issue or not and you said no it was settled at the 9th circuit level.

    I’m going to stick my neck out here and say I think they are really going to rule that there is no Article III standing at the Federal Level regardless of what the State Supreme Court said because for Federal Purposes the Court still needs to satisfy that a party to the suit as to be subjected to the final order (either to do something or refrain from doing something). They can not be just an “interested party” under Federal Rules.

  7. John D says

    Bingo, AFER can want a trip to the Supreme Court, but as the winning side, they are obligated to win the case for their clients. If they had convinced the Ninth Circuit Court of Appeals or the Supreme Court to deny the respective appeals, the case would have been over. Lawyers who win have a duty to their clients to say that the decision should not be appealed.

  8. Jeff says

    Wrong again, Ari. This time about Perry. Maybe you should stick to defending Dharun Ravi.

    Also, Baker is not invoked to “foreclose” Supreme Court review. Obviously, the Supreme Court can re-visit any of its prior precedents and is never “foreclosed” from doing so. Baker is invoked to preclude substantive arguments for marriage equality under the 14th Amendment, on the grounds that Baker already decided that question in the negative.

    Don’t worry, Ari. You may be wrong all the time, but at least you can still hang with Dharun.

  9. Marco Luxe says

    Ari: Today’s Order doesn’t combine the two cases, does it? Do you think there’s a risk that keeping cases separate could result in somewhat inconsistent rulings? What a ride it’ll be if they publish opinions at different times.

  10. Al in SoCal says

    When you say that they can use the question of standing to opt-out of a precedent setting ruling, where does that leave the current laws? For Prop 8 that would mean gay marriage is ok, but what about DOMA – would it leave it intact??

  11. Icebloo says

    The idiots who designed this complex and corrupt system must be looking down on us fools and laughing. I bet they can’t believe we haven’t scrapped this terrible, broken system and thought of a new one.

    How can the US claim to be a world leader when our whole political and judicial systems are so corrupt ?

    Unconstitutional laws should NEVER be allowed to be passed in the first place. It shouldn’t have to take us millions of dollars of fundraising and making lawyers rich and ten years of campaigning to get these unconstitutional laws scrapped. It’s all set up to make the right wing lawyers richer and richer. The system only works for the lawyers – it has failed the majority of Americans for decades.

    We need a new law that no unconstitutional laws can be passed. That would save us so much time and wasted money ! Oh yes, I forgot, the whole point they do it the other way is to make the politicians and their lawyer friends richer.

  12. Icebloo says

    Ugh, why is Towleroad giving free publicity to this awful ARI EZRA WALDMAN lawyer who helped gay bullying DHARUN RAVI (Google him !) get off with causing the death of a gay student ?

    We need to cut off all ties with this evil c_nt. He is not on our side. He has done damage to our community.

    WAKE UP people ! We deserve better !

  13. Richard says

    Hi—

    Thanks for your analysis. It’s always so good!

    Quick question: what effect would the DOMA decision have on binational couples and the conferring of green cards?

    —Richard

  14. MiddleoftheRoader says

    The fact that SCOTUS took the Prop 8 appeal is not good. Does anyone realistically believe that it is a near certainty that 5 Justices are going to say that there is a fundamental right for same-sex partners to get married? It might happen, but wow — 50-50 at best, totally dependent on what Roberts or Kennedy will do (and we are all assuming that the other 4 ‘liberals’ will find Prop 8 unconstitutional). There will be plenty of time for everyone to offer his/her more detailed analysis, but it just doesn’t seem like a good development.

    Read the Nevada court case — it’s entirely conceivable that Scalia, Thomas & Alito could convince Roberts and Kennedy to sign an opinion like that (we hope not!). And keep in mind Justice O’Connor’s concurring opinion in Lawrence v Texas, which Scalia, Thomas & Alito are going to quote until the cows come home, which was cited in the Nevada case, and which could lead to a bad result in the Prop 8 case (and in the DOMA case):
    “That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

  15. David C says

    Do you have a typo in this sentence of your article? You said “no much closer” but did you mean to say “so much closer” or did you mean “not much closer”? I think you meant “so” but wasn’t certain:

    This is what Ted Olson[…] wanted all along and the country is no much closer to accepting the freedom to marry in great part because of AFER’s skillful engagement with the American public on marriage freedom.

  16. Al in SoCal says

    @Icebloo – big question is who would decide what is and is not constitutional? I get the gist of what you’re saying, but on “the other side” gun control laws, etc? What seems cut and dry for some of us, isn’t so for the other some of us. As much as I hate our system sometimes, it works … eventually.

  17. ian says

    scotus will side with the appellants and uphold prop8. it is why they took up the appeal. they could have let the lower courts decision stand, but no, they want to overturn it. evil. i hope i’m wrong.

  18. mark says

    Out here in CA if the court had decined to hear the Prop 8 case we would be seeing a bunch of December Brides…and Grooms…that would have been a nice Christmas present this year…oh, well.

  19. BRAINS says

    “The court is looking to strike down DOMA. The California case in particular has been well researched and is ready. It created a class of citizens able to marry when others of the same class are not allowed to. I think the court is looking to the current times, elections and outdated law. I don’t even think this is going to be hard one for them and I think it will get more than a simple majority to make marriage- for any individual wanting to enter into this contract with another individual- a fundamental right by all. “

  20. badlydrawnbear says

    They took the cases so the most conservative court in history could decide marriage equality before Obama has a chance to shift the balance of the court. plain and simple

  21. Zlick says

    CEEBLOO, what a good idea about it being illegal to pass any unconstitutional laws! Oh, who exactly would determine when a bill or ballot initiative is unconstitutional?

  22. Zlick says

    As for today’s cert granting, I find no logic in any strategy to take the Prop 8 case and rule against marriage equality. What is gained by that? 9 states would still have equal marriage, and even California would be able to get it back via the ballot. Where would you find the 4th vote to take the case merely in order to affirm Prop 8 – with no result differing from simply not taking the case?

    And if taking the case to scuttle equal marriage makes no sense, that leaves only the strategy of taking the case with the possibility quite alive to affirm equal marriage nationwide.

  23. says

    @ RK,

    NO. That assumption is not based on anything. Conservatives got what they REALLY wanted from this court: Citizens United, of which Ted Olson was the lead attorney who led them to victory.

  24. says

    @ Mark,
    “I’m going to stick my neck out here and say I think they are really going to rule that there is no Article III standing at the Federal Level regardless of what the State Supreme Court said because for Federal Purposes the Court still needs to satisfy that a party to the suit as to be subjected to the final order (either to do something or refrain from doing something).”
    —-
    EXACTLY.

  25. says

    @Rob,
    “Since the Supreme Court decided not to take the previous DOMA cases from other circuit courts. Do those decisions stand?”
    —-
    Not sure what cases you are referring to but refusing to hear a case is NOT a decision either way, hence they are NOT court PRECEDENT, or case law.

  26. bobbyjoe says

    The strategy that makes sense for the GOP for the next election cycle is to let the Supremes find a way to grant same-sex marriage by a 5-4 vote, with Kennedy as the swing vote. Scalia can stand up and voice his objection and Justice Thomas’ wife can do all sorts of public hand-wringing– and the GOP will rev up and energize its base for the next few elections about how they need to “take back the court.” *g

    If on the other hand, the Supremes do anything major to damage same-sex marriage nationally, they leave the GOP base satisfied, energize progressives, and play into statistics that irrefutably point to the anti-gay crap becoming increasingly dangerous for long-term GOP gains, particularly nationally. After getting their behinds handed to them in the last election, showcasing one of the most public attacks in recent memory on Civil Rights is not where the GOP really wants to be strategically, particularly regarding the next Presidential election.

    It’s kind of like the old idea that if the conservative Supremes ever really did strike down Roe v. Wade, they’d end up wrecking the GOP, maybe forever. Which is a good reason why, while there’s been a lot of huffing and puffing on the issue, in all these years it’s never come to pass. Majorly damaging same-sex marriage hasn’t quite yet reached that level of being a self-inflicted nuclear attack on oneself by the GOP, but it’s getting there. There are also an awful lot of rich folk with GLBT kids and relatives. And a number of ’em are Republican and not so on board with GOProud’s “bend-over-and-I’ll-take-it” philosophy.

    So my totally non-legalistic prediction is they use Kennedy as the scapegoat for the tea-baggers and do what’s actually much smarter in terms of GOP electoral strategy, energizing their base and leaving progressives being the ones more content and less likely to vote/campaign/be constantly public with outrage.

  27. says

    @ Middle,
    The fact that SCOTUS took the Prop 8 appeal is not good. Does anyone realistically believe that it is a near certainty that 5 Justices are going to say that there is a fundamental right for same-sex partners to get married? It might happen, but wow — 50-50 at best, totally dependent on what Roberts or Kennedy will do (and we are all assuming that the other 4 ‘liberals’ will find Prop 8 unconstitutional). There will be plenty of time for everyone to offer his/her more detailed analysis, but it just doesn’t seem like a good development.”
    —-
    Everybody thought that Obamacare was doomed, yet look at THAT surprise.

    As much as there will be plenty of time for everybody to write analysis there is also plenty of time to do other things to get gay marriage legalized in other states. To only focus on this one ruling (prop 8) is totally missing the point. The Judicial system is only one avenue (and one instance) of many we can take advantage of. I say put all the cards on the table and see which of any can produce the best results. For now, it is important to get the voters on our side. I would like to see 55% or more in the polls so that we can start even more mobilization where is needed.

  28. says

    @chris,
    “If Prop 8 is upheld, is there a scenario where marriage laws in states where gay marriage is legal, (like NY), are impacted?”
    —-
    That is a resounding NO. BUT the more states legalize gay marriage the better for the justices to rule in our favor.

  29. says

    @chris,
    “If Prop 8 is upheld, is there a scenario where marriage laws in states where gay marriage is legal, (like NY), are impacted?”
    —-
    That is a resounding NO. BUT the more states legalize gay marriage the better for the justices to rule in our favor.

  30. Duration&Convexity says

    We should have put Prop 8 on the ballot. With out a doubt. I now believe that more than ever before.

    * First time we had an endorsment from a sitting president for gay marriage. And one who in CA has over 70% approval rating.

    * Much younger voters this time around.

    * Mormon campaign has eased up on various gay marriage combating.

    * We would have been FAR more prepared with our campaign.

    * 4 years many people have evolved.

  31. says

    @BobbyJoe

    You have some good points. Liberals should try to remain energized no matter what. But I think that Obama and Pelosi will indeed capitulate to the fascists of the right wing with entitlement cuts. If massive cuts do end up happening I think that is enough reason to mobilize and even strike.

    If we lose the Prop 8 case I think you would mobilize some liberal base activists but I think other people who are not part of that base or who have no political persuasion or not politically active may also be activated for this civil rights cause.

  32. says

    @ Duration & Convexity

    I agree 100%. Also, let’s not forget we got 48% of votes for marriage equality in 2008 with one of the worst marriage equality campaigns ever. We still got nearly half the states votes. Foyr years later, In 2012, I’d bet my bottom dollar California voters would have approved marriage equality; even by a 52%-48% switch around, the tides have turned in this state. Shame groups like Equality California did not have more faith in us.

  33. Jay says

    Ari, my question concerns the part of the order regarding the Windsor case that raised the question of standing for BLAG. How significant is this? I remember in one case, Golinski, I believe, the judge raised in passing the question of whether BLAG had standing. If I remember correction, he said something to the effect that for a law to take effect, both Houses of Congress had to pass it, and since the Senate did not join the House of Representatives in wanting to defend DOMA, BLAG therefore may not have standing. Is this what the order may be getting at? Thank you in advance.

  34. says

    When you step back and evaluate all this, you realize how unfortunate it truly is for LGBT to have to beg, and go through so much just to attain equal access to an institution that is a foundation for many. That equality is granted to so many other demographics, yet in soon to be 2013, millions of gay Americans have to have their lives in limbo because of who they naturally love and are committed to. It’s a real stain, and complete shame.

  35. Yellow Mellow says

    I personally believe ALL LGBT should be engaged in our quest for equality. There’s millions and millions and millions of us out there. FAR more so than the general public realizes. If all those LGBT who live in shame were to evolve and attain full self acceptance and realize their self worth and dignity is WORTH fighting for. That they pay into a tax system and government that treats them as second class citizens. And that they are of no less value than their heterosexual counter part….Then and only then can we truly be strong in numbers.

    If all LGBT helped equality for our community in varrying forms (be it ENDA, or youth bullying, or DOMA, or just simply …coming out to your loved ones) this conversation would be one where we would constantly be celebrating LGBT related triumphs.

  36. LipstickDiva says

    Yellow Mellow:
    one of my favorite posts I’ve read on here. very very true. the impact of all of us LGBT joining forces and holding hands and showing strength in numbers would silence our detractors in realizing we’re here. We’re Americans. We’re contributing to society. We’re neighbors, coworkers, and innovators. That closet has been the most destructive and detrimental aspect of our plight.

  37. simon says

    As many has already pointed out, ballot initiative may be a good option. It seems that California has missed the boat in the last election. Marriage equality should have been approved in a referendum like Maine. I don’t understand why pro-gay organizations in California haven’t done it.
    They should have a multi-pronged approach including both court actions and ballots.

  38. says

    I think California GLBT organizations COULD have at least started the building blocks of a public campaign to promote marriage equality in CA starting after the 2008 ballot results. Instead, I regret saying our leaders here in CA literally put all their eggs in the court basket. If you talked with them, like I have, they were so incredibly confident we’d win in the courts that none predicted SCOTUS would consider taking the review. What would have been far more effective and wise on their part is to fight this in court, but ALSO mobilize a “door to door” campaign in California ….just in case.

    That would have been four years of solid ground-work in California for our side, just in case we wanted to put this back on the ballot. But living in this state and being closely affiliated to some of these organizations; they not only did not do ANY out reach for gay marriage in our state, but actually thought it was a waste of time. Truly, very very little has been done in California in terms of advancing public opinion for marriage equality on behalf of gay rights organizations. The public here has been left to evolve on their own, while gay rights organizations host cocktail parties and fight the entire battle in court.

    It’s a real mess out here, and no surprise at all why so many other states are doing a far more skilled (and successful) job at getting results.

  39. Greg Cali says

    @ Amir
    I co sign, and also live here, and am also greatly disappointed in our leaders who could have used the past four years as a spring board to advance the conversation. Instead, they’ve been mute.

  40. StillMarriedinCA says

    @Simon–It’s because Equality California is completely inept. They bungled the No on 8 campaign badly and snatched defeat from the jaws of victory. (I volunteered for them back in 2008). Then they never really accepted responsibility for their failure. Then they went back to collecting funds so that they could get a repeal of Prop 8 on the ballot in 2010. Then they decided they should wait until 2012 to put it on the ballot and collected more donations for that purpose. Then, they decided they weren’t going to put it on the ballot after all. They thought it wouldn’t be a sure thing so why bother trying. Never refunded the money that we gave towards getting a repeal on the ballot and never apologized for fund raising under false pretenses.
    And now the victories in 4 states show just how wrong they were once again. We would have won here in California, too. As long as we didn’t leave the organizing and advertising to EQCA and hired the kind of people they had in Maine, Washington, Maryland, and Minnesota.
    It’s shameful and frustrating as hell. Now we wait… and if the SCOTUS rules to uphold Prop 8 we have no backup plan to overturn it.
    I would like to hear what they are doing with our donations and if they have a plan B.

  41. MikeH says

    After the election I was convinced that SCOTUS would take both cases and am happy to say I was right. Now I predict that DOMA will be thrown out unanimously and that there will be marriage equality for the entire nation by at least a 7 / 2 decision – and quite possibly unanimously also.

    Here is the bottom line, the writing is on the wall. No Judge wants to be remembered for making the wrong decision, and Bowers v. Hardwick I think is front and center in their minds. Equality is going to happen very soon one way or another. who wants to be on the wrong side of history and be known for having their decision overturned. Roberts would love to have a major civil rights decision in his courts legacy. Justice Kennedy isn’t getting any younger, and this would be the third in his trilogy of gay rights decisions. Obviously, the court would give him the honor of writing the decision.

    I see all of this as quite obvious… the last election and the rapid change in public opinion will give them more than ample cover. Yeah, the right wing loons will whine, but no one would be shocked.

  42. RFD says

    Hi Ari,

    My question is if DOMA is ruled unconstitutional would the tax penalties I pay for adding my partner on my benefits go away? I am in a state without same sex marriage. So I am asking for those of us who are not in the legal marriage situation.
    I understand DOMA is what causes this so I hope it will go away if we win. Thanks!

  43. dms says

    Damn, that didn’t work.

    Basically, I need to prepare for th eworst.

    What’s the worst case scenario, and what is the plan if the worst case scenario comes to pass?

  44. g3nutz says

    If the court decides that the proponents of prop 8 do not have standing that would grant Marriage in California I guess, but would it have any affect on the prior rulings and their being used as precedent in future cases?

  45. David C says

    @RFD “…if DOMA is ruled unconstitutional would the tax penalties I pay for adding my partner on my benefits go away?”

    I’m not a lawyer, but I understand enough of this to say that the Feds tax benefits for all “non-married” couples (i.e. Domestic Partners), not only gay couples. But DOMA is forcing them to say gay couples are not married in the eyes of the Feds (even if they are married in the eyes of the state). If DOMA falls then gay couples who are married and living in a state which respects their marriage will definitely no longer be taxed on their spouse’s benefits.

    I am curious to hear from the lawyers, but my guess is that gay couples who got legally married somewhere but who are living in states which do not recognize their marriage still will see the end of the Federal taxation of their spousal benefits.

    If a gay couple doesn’t get legally married somewhere then the Feds will still tax the partner benefits, the same as they do today to unmarried straight couples.

  46. Oliver says

    I agree with MIKEH:
    “Here is the bottom line, the writing is on the wall. No Judge wants to be remembered for making the wrong decision, and Bowers v. Hardwick I think is front and center in their minds. Equality is going to happen very soon one way or another. who wants to be on the wrong side of history and be known for having their decision overturned. Roberts would love to have a major civil rights decision in his courts legacy. Justice Kennedy isn’t getting any younger, and this would be the third in his trilogy of gay rights decisions. Obviously, the court would give him the honor of writing the decision.

    I see all of this as quite obvious… the last election and the rapid change in public opinion will give them more than ample cover. Yeah, the right wing loons will whine, but no one would be shocked.”

    Notice how Rick Santorum, Michele Bachmann, Herman Cain, Newt Gingrich, Rick Perry, have all but disappeared from the media. Notice how Mitt Romney did not have any of the aforementioned stumping for him during the run up to the election. That far right wing religious nuttery doesn’t sell anymore.

  47. Russell says

    Fun fact: Just weeks before the election in 2008, 2 of No on 8’s most important leaders – Geoff Kors and Lori Jean – went on extended vacations. Kors went to Spain and Jean went to Alaska. These vacations lasted 3 or 4 weeks.

    Maybe if these selfish, arrogant, overpaid losers had stuck around and worked on the $43 million campaign, we might have pulled out a win instead of a 52-48 loss. They are a big reason we are all here today in 2012, still trying to undo the damage.

  48. shawnthesheep says

    Not surprised that the Chicken Littles are out in force saying the Court will uphold Prop 8. These are the same folks who said that the Prop 8 lawsuit was a terrible idea from the start.

    I really believe that the Court is going to decide both cases in favor of marriage equality. The Court never wants to be on the wrong side of history, and times are changing very rapidly. I can’t imagine Roberts would want his name associated with a landmark ruling that in 10-20 years will be viewed as negatively as Dred Scott.

  49. Lars says

    Could someone at Towleroad PLEASE do us the courtesy of moderating the comments??

    It is important to hear dissenting voices, but character assassination and defamation have no place here.

  50. BobN says

    The cynic in me is saying that the announcement was late so that the decision will come late, after Gay Pride in NYC and SF and LA.

    They did the same thing with Bowers.

  51. Jerry says

    @stillmarriedinca: I agree 100% with your opinion about EQCA, and if it’s necessary to go back to the ballot box to repeal Prop 8, we need to be on record AGAINST the idea of EQCA representing the community in a campaign. However, this is easier said than done. There is a real vacuum of organized leadership. I remember the campaign against Prop 6 (outlawing gay teachers in CA) which faced much more daunting opposition, but was successfully defeated. EQCA’s failure must not be allowed to happen again.

  52. says

    SCOTUS has been widely split on any number of major decisions, even when there is a majority. It is impossible to determine the possible outcomes, much less the outcome of these cases. Personally I think the jurisidictional issues are more important to the court then the underlying questions on gay marriage and rights. I have read many cases where they do not decide the central legal question, but decide the case on the basis of jurisdiction. I think the court is most concerned with the third party standing issue and the standing of Congress to defend a law. These questions are likely to determine the underlying question, but perhaps on on any basis forseen thus far.

  53. Bingo says

    The notion that the standing issues are raised to allow SCOTUS an “out” suggests a failure to understand what the court does. The standing issue, esp with respect to BLAG, is a huge separation of powers question. It’s exactly the sort of issue SCOTUS is meant to address, and there are earlier decisions (Buckley, Chadha) that suggest each side is correct.

Leave A Reply