[Vision2020] SCOTUS May Rule on California's Proposition 8, or Other Gay Marriage Cases

[Ted Moffett]

Of course the legal issues in these cases can be very technical, but I
recall discussion on Vision2020 in August 2010 that California's
Proposition 8 ban on same sex couples would probably not reach the SCOTUS,
or at least the California federal judge ruling overturning Proposition 8,
as can be read from the Vision2020 archives at website below.
It appears the current SCOTUS is going to review gay rights issues to some
degree, with a potentially historic outcome, as the 11-25-12 article from
the SF bay area pasted in below indicates:
http://mailman.fsr.com/pipermail/vision2020/2010-August/071207.html

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http://www.insidebayarea.com/samesexmarriage/ci_22064789/u-s-supreme-court-poised-take-up-gay?source=inthenews


U.S. Supreme Court poised to take up gay marriage

By Howard Mintz
<hmintz at mercurynews.com?subject=Inside%20Bay%20Area:>

hmintz at mercurynews.com
Posted:   11/25/2012 06:28:46 PM PST
Updated:   11/26/2012 07:51:44 AM PST

When the U.S. Supreme Court convenes behind closed doors Friday, the
justices will weigh whether to jump headlong into the historic same-sex
marriage debate -- or merely dip their toes in the roiling legal waters.

The high court could decide whether to rule once and for all on
California's Proposition 8, the 2008 voter-approved ban on same-sex
marriage. And it could choose to hear up to eight other cases that
challenge the 1996 federal Defense of Marriage Act, which bars federal
benefits to same-sex couples.

Depending on how far the court goes, it could end up legalizing gay
marriage nationwide, banning it nationwide, or continuing the current
state-by-state experiment in whether gays and lesbians can marry and
whether they are entitled to equal benefits under federal law.

All the cases on the court's docket involve lower court decisions declaring
gay marriage restrictions unconstitutional.

Both sides in the gay marriage battle and legal experts have little doubt
the Supreme Court will take up at least some of the cases to put its stamp
on one of the country's most pressing social issues. The mystery is in how
far it will go.

If the Supreme Court chooses not to review the challenge to Proposition 8,
gay and lesbian couples will have the right to legally marry in California.

The justices are expected to release orders revealing their decisions the
first week in December, which means they would hear arguments in the spring and
rule on same-sex marriage by the end of the term in June.

"They're going to take one or more of the'' cases on the Defense of
Marriage Act, or DOMA, said David Boies, a lead attorney for two California
couples challenging Proposition 8. "The more complicated question is what
they do with our case."

Jane Schachter, a Stanford University law professor, agreed.

"There is sort of a circle at the core of all of this, which is DOMA, and
from there it comes down to how broad to make the circle," she said. "One
thing to think about is how much of the overarching issues do they want to
get into."

For a variety of reasons, most experts say the Supreme Court has a more
straightforward path to tackling the federal law than the California law.
Foremost is the fact that numerous courts, including two federal appeals
courts and a San Francisco judge, have invalidated DOMA, leaving the
justices little choice but to evaluate a sweeping law enacted by Congress
that has been deemed unconstitutional.

The Supreme Court is well aware that the Obama administration, which argues
DOMA is unconstitutional, is on one side, while House Republicans are
defending the law on the other.

In addition, experts say, the Supreme Court can rule on DOMA without
expressly deciding the broad question of whether same-sex couples have a
constitutional right to marry. Two federal appeals court have struck down
DOMA on the grounds that it is unconstitutional to deny federal benefits to
same-sex couples in states such as New York and Massachusetts that permit
gay marriage. Nine states now fall into that category.

But the Proposition 8 case is stickier and allows the Supreme Court to save
for another day the question of whether a state ban on gay marriage is
unconstitutional.

The 9th U.S. Circuit Court of Appeals struck down Proposition 8 in a narrow
ruling steering clear of broader legal issues, finding the law
unconstitutional because it stripped away a previous right of same-sex
couples to marry in California. There is a school of thought that the high
court can let that ruling stand, permitting same-sex marriages in
California but avoiding a decision that would extend to other states.

"I don't think they can wait on DOMA," said Vikram Amar, a UC Davis law
professor. "But they can wait on the Proposition 8 stuff."

Karen Golinski, a San Francisco woman whose DOMA challenge is one of the
cases on the court's docket, is eager for the Supreme Court to enter the
legal fray.

"It's going to resolve it for all of us," said Golinski, who sued because
her same-sex spouse was denied health benefits. "I feel confident the court
is going to take at least one of the cases."

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow
him at Twitter.com/hmintz <http://twitter.com/hmintz>

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Vision2020 Post: Ted Moffett
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