Supreme Court to Review Prop. 8, Defense of Marriage Act

From AP:

WASHINGTON (AP) — The Supreme Court will take up California's ban on same-sex marriage, a case that could give the justices the chance to rule on whether gay Americans have the same constitutional right to marry as heterosexuals.

The justices said Friday they will review a federal appeals court ruling that struck down the state's gay marriage ban, though on narrow grounds. The San Francisco-based appeals court said the state could not take away the same-sex marriage right that had been granted by California's Supreme Court.

The court also will decide whether Congress can deprive legally married gay couples of federal benefits otherwise available to married people. A provision of the federal Defense of Marriage Act limits a range of health and pension benefits, as well as favorable tax treatment, to heterosexual couples.

The cases probably will be argued in March, with decisions expected by late June. Full AP story here

Update 1:25 p.m. Interesting entry from SCOTUSblog live analysis:

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

In a conversation with Scott Shafer today, UC Davis law professor Vik Amar addressed this issue:

AMAR: Remember, the Supreme Court today asked the parties to brief another question, which has been looming throughout, and that is whether the sponsors to Prop. 8 are proper parties to defend the measure in federal court. The Supreme Court signaled that his case may go away on standing grounds. And the court may never reach the merits at all, if it’s not convinced that the sponsors are appropriate defendants to the court.

SHAFER: I believe they also asked that question in the DOMA case they took up, that question of standing.

AMAR: They did, because the Obama Administration has declined to defend the DOMA, the federal statute, and in fact agrees with the lower courts that it’s unconstitutional, which led the House of Representatives to hire its own outside lawyers headed by Paul Clement. And the court today wondered aloud, and asked the parties to brief whether Paul Clement and his group is a proper party to defend DOMA. Now that’s even more arresting than them asking whether the Prop. 8 sponsors have standing, because there are a lot of cases in which Congress has been allowed to defend federal statutes where the president has not.

(I)f the justices were to say there is no one to defend Congress’s work product when the president doesn’t, that really opens up the door to broad presidential powers to essentially ignore and thus undermine what Congress does.

Update 1:40 p.m. Another interesting wrinkle...from the Sacramento Bee, Nov 15:

During a chat with The Bee's editorial board Wednesday, Steinberg said he could envision the Democrat-controlled Legislature using its new-found two-thirds majority power to put a gay-marriage referendum on a future statewide ballot.

"Depending upon what the Supreme Court might or might not do with Proposition 8, in coalition with stakeholders and the gay and lesbian leadership, if it were appropriate and necessary to put a repeal of Prop. 8 on the ballot with our two-thirds supermajority, I would be open to that," the Sacramento Democrat said.

In Nov 2008, Californians passed Prop 8 by 52 percent to 48 percent. But a May 2012 PPIC poll found that Californians supported same-sex marriage by 54-40 percent. More on the changing views of Californians on this issue from that poll:

In October 2008, a majority of older Californians opposed same-sex marriage (34% in favor, 58% opposed); they are now closely divided (45% favor, 47% oppose). Support has grown 15 points among younger Californians, age 18–34 (from 53% to 68%). Majorities of both women (53%, up slightly from 47% in 2008) and men (55%, up 13 points) now support same-sex marriage. In their 2008 campaign, Proposition 8 proponents appealed to parents by claiming that if same-sex marriage remained legal, it would be taught in schools. A majority of parents expressed opposition at the time (42% in favor, 54% opposed), but the opinion gap has since narrowed (46% in favor, 47% opposed). Support for same-sex marriage has increased somewhat among whites (from 50% in 2008 to 59% in 2012) and Latinos (from 36% to 43%).

You'll recall that in the November election, Maine voters approved same-sex marriage just a few years after banning it.

Meaning that even if the Supreme Court reverses the 9th Circuit's decision, we still may have not heard the last on this issue.

Update 2:45 p.m. California Attorney General Kamala Harris says she will lead attorneys general nationwide in drafting a brief in support of same-sex marriage for the Prop 8 SCOTUS case. You can listen to her speaking at San Francisco City Hall today here...

Update 4:00 p.m. Here is the audio of today's press conference by the American Foundation for Equal Rights, which is sponsoring the legal challenge to Proposition 8.

"We got involved in this case two-and-a-half years ago because we wanted to get married and we were being discriminated against, along with thousands of other gays and lesbians," said plainfiff Jeff Zarillo. "This is why we have a court system, this is why we have a judicial system. They have a job to step in when the rights of the minority are being oppressed by the majority."

Said attorney Ted Boutros: "We really believe we have the best possible record for the Supreme Court to look at. It's never going to happen again where the lead expert witness in one of these cases switches sides and agrees with the position on marriage equality. It really couldn't be a better situation." Boutros was referring to the Institute for American Values' David Blankenhorn, who renounced his testimony in favor of Proposition 8 in a New York Times op-ed piece in June.

Update 4:45 p.m. KQED's Kat Snow today talked to Byron Babione, senior counsel with the Alliance Defending Freedom, part of the legal team defending Proposition 8.

Responding to the court's orders today, Babione said, "We believe the Supreme Court will recognize that marriage between a man and a woman is a universal good that diverse cultures and faiths have honored throughout the history of western civilization. And that it serves substantial and compelling government purposes and is therefore constitutional.

"Marriage has always been society's mechanism for regulating opposite-sex sex, because it results in procreation, accidental procreation, spontaneous conception. And so society needs a mechanism to address that. And of course opposite-sex couples implicate the state's interest in responsible procreation. And while it is no slight to same-sex couples, same-sex couples do not implicate the interest that society has in marriage, which is to make sure that mothers and fathers who have children raise those children together."

Full AP report:

WASHINGTON (AP) — The Supreme Court will take up California's ban on same-sex marriage, a case that could give the justices the chance to rule on whether gay Americans have the same constitutional right to marry as heterosexuals.

The justices said Friday they will review a federal appeals court ruling that struck down the state's gay marriage ban, though on narrow grounds. The San Francisco-based appeals court said the state could not take away the same-sex marriage right that had been granted by California's Supreme Court.

The court also will decide whether Congress can deprive legally married gay couples of federal benefits otherwise available to married people. A provision of the federal Defense of Marriage Act limits a range of health and pension benefits, as well as favorable tax treatment, to heterosexual couples.

The cases probably will be argued in March, with decisions expected by late June.

Gay marriage is legal, or will be soon, in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — and the District of Columbia. Federal courts in California have struck down the state's constitutional ban on same-sex marriage, but that ruling has not taken effect while the issue is being appealed.

Voters in Maine, Maryland and Washington approved gay marriage earlier this month.

But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example in May. In Minnesota earlier this month, voters defeated a proposal to enshrine a ban on gay marriage in that state's constitution.

The biggest potential issue before the justices comes in the dispute over California's Proposition 8, the state constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. The case could allow the justices to decide whether the U.S. Constitution's guarantee of equal protection means that the right to marriage cannot be limited to heterosexuals.

A decision in favor of gay marriage could set a national rule and overturn every state constitutional provision and law banning same-sex marriages. A ruling that upheld California's ban would be a setback for gay marriage proponents in the nation's largest state, although it would leave open the state-by-state effort to allow gays and lesbians to marry.

In striking down Proposition 8, the 9th U.S. Circuit Court of Appeals crafted a narrow ruling that said because gay Californians already had been given the right to marry, the state could not later take it away. The ruling studiously avoided any sweeping pronouncements.

The larger constitutional issue almost certainly will be presented to the court, but the justices would not necessarily have to rule on it.

The other issue the high court will take on involves a provision of the Defense of Marriage Act, known by its acronym DOMA, which defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.

Four federal district courts and two appeals courts struck down the provision.

The justices chose for their review the case of 83-year-old Edith Windsor, who sued to challenge a $363,000 federal estate tax bill after her partner of 44 years died in 2009.

Windsor, who goes by Edie, married Thea Spyer in 2007 after doctors told them that Spyer would not live much longer. She suffered from multiple sclerosis for many years. Spyer left everything she had to Windsor.

There is no dispute that if Windsor had been married to a man, her estate tax bill would have been $0.

The 2nd U.S. Circuit Court of Appeals in New York agreed with a district judge that the provision of DOMA deprived Windsor of the constitutional guarantee of equal protection.

Timeline: Same-sex marriage in California