Friday, December 7, 2012

Supreme Moment for Equality?

This is the moment we've all been waiting for. It's finally here.

The Supreme Court has just announced in an order that it will take up the Prop 8 and the Defense of Marriage Act cases for further review. The next step in the review process for both cases is a scheduling order, which should come soon, laying out the date for oral arguments at the Supreme Court, although the case will likely not be heard until the spring of 2013. The Court’s term lasts until June, so we should have final news by then on the fate of Proposition 8, the constitutional amendment banning marriage equality in California. This decision means that the Ninth Circuit’s ruling striking down Prop 8 as unconstitutional continues to be stayed, and couples cannot wed in California.

In the cases involving DOMA, which prohibits same-sex couples’ legal marriages from being recognized by the federal government and therefore denies 1,138 federal rights and benefits due to those couples, the Court specifically chose to hear the CASE challenge, and will likely make no public announcement regarding the other cases until after it rules on DOMA’s constitutionality.

Oral arguments are expected during the week of March 25 (2013), and a final ruling is expected during the week of June 24. And I'm the mean time, we can expect plenty of speculation as to what the Supreme Court will do. While the Court tends to have a conservative majority, some court watchers think most Justices won't ignore growing public support for marriage equality, as well as the long and painful history of the struggle for LGBTQ civil rights.

“I don’t think justices get in this position very often because everybody knows what the judgement of history is going to be,” Lucas Powe, a Supreme Court historian at the University of Texas-Austin School of Law, told TPM before the court’s announcement. “I don’t think think anybody doubts that gay marriage is coming — it’s only the issue of time. This is one of those times where no matter what you think you know you’re going to be wrong if you oppose it.”

The Supreme Court has not weighed in on gay marriage, leaving the outcome uncertain, but earlier rulings in favor of gay rights give hope to proponents of marriage equality. The four Democratic-appointed justices are widely expected to strike down DOMA. Justice Anthony Kennedy, a presumable swing vote, has written passionately against laws persecuting gays.

“I think Kennedy’s vote is very secure,” Powe said. “I think there are comfortably five votes to overturn DOMA. … Kennedy has a libertarian streak — he has written the key gay rights opinions and I think he will continue to do so.”

Brian Fitzpatrick, a professor at Vanderbilt University School of Law and former clerk to Justice Antonin Scalia, told TPM ahead of the announcement that “conservatives are probably afraid they will lose Justice Kennedy.”

And while Chief Justice John Roberts has a mostly conservative record and is thought to be a social conservative, some court watchers think his vote may even be in play because he will have his Court's legacy in mind. Will he want his Supreme Court to be known as the Court that stood in the way of a historic civil rights achievement?

Without a doubt, the next session of the US Supreme Court will be quite historic. What happens there in the coming months will determine how much longer we will have to wait before marriage equality spreads nationwide. And while it doesn't look like the Court will take Nevada's own marriage suit just yet, what happens in the Prop 8 & DOMA cases may very well determine the final ruling of our case.

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