SCOTUS Agrees to Hear Challenges to DOMA and Prop. 8

The Supreme Court of the United States on Friday did what many expected them not to do – agree to hear challenges to DOMA and Prop. 8.

The challenge to Proposition 8 has been followed closely here. Judge Stephen Reinhardt, of the Ninth Circuit Court of Appeals, offered a very limited ruling that really only applied to California.

The justices at the same time agreed to consider a challenge to DOMA (Defense of Marriage Act), which defines a marriage federally as a union between and a man and woman and blocks same-sex couples from receiving a number of federal benefits.

Writes Professor Turley, “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.”

Despite the limited nature of Prop 8 and the standing issues in DOMA (defended by members of Congress much as Prop 8 is defended by private parties), Professor Turley argues, “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.”

The general thought has been that this ruling will come to Justice Anthony Kennedy as the swing vote.  However, there is some thought that Chief Justice Roberts, who steered the court out of potential political peril on the Affordable Care Act, might attempt to do the same here.

As we noted on Thursday, the decision by the Supreme Court comes at an interesting time, when public opinion seems to be rather quickly shifting.  Polling shows that the country is still divided on the issue, even though support has been growing.  Most analysts believe that only four years later, California would not have voted for Prop 8 today.

A Pew poll conducted this October shows that trend holds not just in California, but across the nation.  In that poll, 49 percent of those polled believed that same sex marriage should be legal, with 40 percent opposed.  Those numbers had flipped in just four years.  In August, 2008, it was opposed 52 percent to 39 percent in favor.

We have also noted the strong demographic trend.  Young people are more likely to know gay people and therefore less likely to feel threatened by same-sex marriage.

A Gallup Poll from November shows that 73 percent of those 18 to 29 favor same-sex marriage.  On the other hand, only 39 percent of people older than 65 do.

The New York Times this morning noted, “Respondents appear increasingly inclined to say they are personally opposed to same-sex marriage, rather than say it should be illegal.”

The Pew poll noted that support for same-sex marriage is not evenly distributed across the country.  Strong majorities favor it in New England, mid-Atlantic States and along the Pacific Coast.  In the Midwest and south Atlantic states, opinion is closely divided.  However, not surprisingly, in the deep South, strong majorities oppose it.

A Sacramento Bee editorial, along with commentators on Friday and Saturday morning, believe that the court “is taking a huge risk by wading into such a sensitive issue as gay marriage.”

“If they legalize same-sex marriage nationwide as a constitutional right, it could trigger a backlash – just as the 1973 Roe v. Wade decision, which sanctioned abortion before many Americans were ready, strengthened the anti-abortion movement,” the Bee editorial board writes.  “If, on the other hand, the court upholds Prop. 8, it could blunt the growing momentum at the ballot box and in public opinion in favor of gay rights.”

They add, “Either way, the court’s decision won’t be the final word for many Americans.”

An ACLU release on Friday suggested, “Recent elections have indicated an indisputable sea change in public attitudes towards marriage for same-sex couples; polls this year show 54% of Americans support the freedom to marry, and in November, voters in Maine, Maryland and Washington approved ballot measures allowing lesbian and gay couples to wed.”

“All couples deserve the freedom to express their love and commitment to one another and protect their families through marriage – lesbian and gay couples are no exception,” said Melissa Goodman, senior staff attorney with the ACLU of Southern California. “We hope the Supreme Court agrees.”

Leaders in California were quick to respond.

Attorney General Kamala D. Harris, whose office followed her predecessor in refusing to defend Prop 8, issued a statement Friday, “Today’s decision by the U.S. Supreme Court to consider marriage equality takes our nation one step closer to realizing the American ideal of equal protection under the law for all people,” said Attorney General Harris.

“For justice to prevail, Proposition 8 must be invalidated so that gay and lesbian families are finally treated with equality and dignity.”

Senator Barbara Boxer was one of just 14 Senators to vote against DOMA back in 1996.  On Friday she said: “I sincerely hope that the Supreme Court finds that both of these laws – Proposition 8 and the Defense of Marriage Act – violate the promise of equal protection guaranteed by the Constitution. I believe support for marriage equality keeps growing stronger nationwide because it is a matter of fairness and justice.”

California Senate President pro Tem Darrell Steinberg issued a statement on Friday, “I am ever hopeful that the U.S. Supreme Court will concur with the judgment of Judge Vaughn Walker that Proposition 8 is unconstitutional, and that all Americans are created equal and are endowed with the right to Life, Liberty, and the Pursuit of Happiness. While due legal process continues, let’s not forget those Californians who remain unable to pursue happiness by marrying the partner of their choice. It is a fundamental freedom that many of us take for granted.”

“It is no surprise that the U.S. Supreme Court decided to take up Proposition 8 and the federal Defense of Marriage Act. The issue of full equality for everyone is fundamental to the American way of life,” he added. “As a nation, we have been tried and tested by discrimination before. Every step in this struggle is a movement toward eliminating discrimination and here, toward guaranteeing that members of the gay and lesbian community enjoy the same rights and protections as us all.”

The senator concluded: “In the courts and at the ballot box, there is ever increasing recognition that a person’s sexual orientation should have nothing to do with his or her civil rights, including the right to marry whomever they choose. I have confidence that the Justices will recognize the injustice perpetrated by Proposition 8 and the federal Defense of Marriage Act.”

Speaker John Perez of the California Assembly, himself openly gay, said on Friday, “Today’s announcement that the Supreme Court will take up Hollingsworth v. Perry and the challenges to the Defense of Marriage Act is a reminder that the pathway to justice is long and difficult. The plaintiffs in the initial challenge to Proposition 8, Perry v. Schwarzenegger, presented a powerful and compelling argument that Proposition 8 is unconstitutional, which was eloquently recognized in Judge Vaughn Walker’s ruling in that case.”

“I am very confident that the Supreme Court will rule in favor of our community in Hollingsworth v. Perry, as it is now known, and affirm that Proposition 8 is unconstitutional,” the speaker added. “But until that outcome is secured, our community must continue to fight for justice on every front, from working to secure the Employment Non-Discrimination Act to addressing the issues of homelessness among LGBT youth.”

This was a big step by the court, but where the court goes from here, no one really knows.

—David M. Greenwald reporting

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