Supreme Court Expected to Take Up Same-Sex Marriage in the Fall
- By: Geoff Bennett
WASHINGTON, D.C. — The Supreme Court has adjourned for the summer, and many legal experts believe when the justices reconvene in the fall, they’ll likely decide whether statewide bans on same-sex marriage are constitutionally legal.
Across the country, there are currently more than 70
legal challenges in the 32 states and territories where gay marriage is
illegal, but the tipping point came in late June when a federal appeals
court struck down Utah’s ban on gay marriage.
Legal analysts say that set the stage for the high court to settle the matter for the entire country.
“Clearly,
America is ready for the freedom to marry and the [Supreme] Court
should move swiftly because every day of denial is a day that real
families are deprived of the important protection and responsibilities -
as well as the personal dignity - that come with the freedom to marry,"
said Evan Wolfson, founder and president of Freedom to Marry.
A year ago, the justices avoided the question of
whether marriage is a constitutional right when they rejected parts of
the Defense of Marriage Act. In that case, brought by Edith Windsor, the
Court narrowly ruled that same-sex spouses legally married in a state
that permits it can receive federal benefits
.“Since then, more than 20 courts - federal and
state - have all found that the language and logic of the Windsor case,
as well as the Constitution itself, make clear that the denial of the
freedom to marry is unconstitutional," Windsor said.Conservative
activists disagree.
They said Justice Anthony Kennedy's majority opinion in that 5-4 ruling preserves the right of states to decide.
No
one knows if or when the Supreme Court will take up a particular case,
but legal analysts say the speed at which challenges are proceeding
through the lower courts, and the change in public approval for same-sex
marriage, suggest the Supreme Court will soon weigh in. -
Gay marriage groups pop the question to SCOTUS
Their optimism marks a sharp turn from two years ago. | AP Photo
By EDWARD-ISAAC DOVERE | 7/1/14 6:47 PM EDT Updated: 7/2/14 3:17 PM EDT
Break out the rainbow flags and wedding bands, say gay
marriage advocates: As this year’s term ends, they now predict that
they’ll be celebrating a Supreme Court decision at the end of the next
one — or at latest, 2016’s — fully legalizing same-sex marriage
nationwide.
Their optimism marks a sharp turn from two years ago, when many LGBT advocates were wary of rushing to the Supreme Court with a gay marriage legalization case, worried that they’d get there too quickly, get ruled against, and set the movement back years.
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Today, just a year after the Windsor decision striking down the core of the Defense of Marriage Act and the Perry
decision that kept California’s Proposition 8 off the books, all major
LGBT advocates support going to the Supreme Court. They plan to use the
same kind of coordinated legal and public relations strategy that’s led
them to 16 out of 16 victories in lower courts, including Tuesday’s in Kentucky, where a district judge appointed by President George H.W. Bush struck down the state’s gay marriage ban.
(Also on POLITICO: Hobby Lobby decision: 5 takeaways)
Those decisions, along with movement in states that have legalized marriage legislatively, have created momentum. But they’ve also created an unusually pockmarked legal landscape that has different marriage laws state to state, even in the same region.
It’s the sort of situation, many believe, that just might motivate the Supreme Court to step in and establish one set law.
That, and not his own view on gay marriage, is what’s driving Utah Attorney General Sean Reyes to petition the court, explaining in a statement that he’s seeking “certainty and finality for all Utahns on such an important issue with a decision from the highest court.”
Noting that even among the attorneys in his office there are differing personal views on gay marriage, he added, “The state looks forward to the day when these issues are resolved and Utah, along with its citizens, have certainty and a clear understanding of the law.”
(Also on POLITICO: The Supreme Court did not just kill public sector unions)
Meanwhile, advocates are counting on that certainty to take the form of a legalization ruling from the same five justices who struck down DOMA — and maybe even a legacy-minded Chief Justice John Roberts joining, too.
They say they might get there via the Utah attorney general’s petition. Or via circuit court decisions in Oklahoma and Nevada. Or by way of the case that went through a full trial in Michigan, or others in Texas, Ohio, Wisconsin, Tennessee or beyond.
Marriage legalization advocates also feel that the lack of chaos or disruption in the 19 states (plus Washington, D.C.) that have legalized gay marriage — in a statistic advocates like to cite, that accounts for 44 percent of the total American population — will ease the minds of justices who might worry that the country’s not ready for gay marriage, as even Justice Ruth Bader Ginsburg has hinted at in the past. The polls that show popular opinion sprinting to legalization should help, too, they say.
(Also on POLITICO: SCOTUS sides with Hobby Lobby on birth control)
“A movement like ours doesn’t have to win in the four corners of the country. We had never been intending to plod state-by-state until we get through Mississippi in 2030 or something,” said Evan Wolfson, the founder and president of Freedom to Marry, which has been bringing cases for years. “But though you don’t have to win every state, you have to win enough states.”
“We’re just about as ready as we’re going to be,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project, who was among those urging advocates to put the brakes on efforts to go to the court for the Perry decision.
Since Windsor and Perry, over 80 cases have been filed in federal and state courts, now in every single state that doesn’t have legal gay marriage already.
“The court decisions were the equivalent of, ‘Come on in, the water’s warm.’ You have seen the arguments replicated in all these cases,” said Fred Sainz, vice president for communications at the Human Rights Campaign — a group that had, under previous leadership, been among the leading groups wary of now-executive director Chad Griffin’s push to get Perry in front of the Supreme Court.
Even among those who’d been eager earlier to go to the Supreme Court, there used to be a debate over finding the right case, the perfect plaintiff, the exact set of legal issues to present to wary justices. At this point, advocates don’t seem to think it matters which case is the one that gets there, confident that any of them would hit at the same due process and equal protection issues, and that, anyway, the court is seen as likely to wait for a few of them to rule on together rather than just taking the first one.
“Will the court take the first cert petition, I don’t know,” said Andrew Pincus, a former assistant solicitor general during the Reagan administration and currently a partner at Mayer Brown specializing in its Supreme Court practice. “But I think they’re going to take it.”
The timeline, Pincus said, is likely “sometime in the next six or eight months,” adding that as to the likely outcome, “I do think it’s quite telling that there’s been, except for one vote, such unanimity in the results the judges have reached, regardless of who appointed them. I think that tells you a lot of how people are looking at these legal arguments.”
Their optimism marks a sharp turn from two years ago, when many LGBT advocates were wary of rushing to the Supreme Court with a gay marriage legalization case, worried that they’d get there too quickly, get ruled against, and set the movement back years.
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(Also on POLITICO: Hobby Lobby decision: 5 takeaways)
Those decisions, along with movement in states that have legalized marriage legislatively, have created momentum. But they’ve also created an unusually pockmarked legal landscape that has different marriage laws state to state, even in the same region.
It’s the sort of situation, many believe, that just might motivate the Supreme Court to step in and establish one set law.
That, and not his own view on gay marriage, is what’s driving Utah Attorney General Sean Reyes to petition the court, explaining in a statement that he’s seeking “certainty and finality for all Utahns on such an important issue with a decision from the highest court.”
Noting that even among the attorneys in his office there are differing personal views on gay marriage, he added, “The state looks forward to the day when these issues are resolved and Utah, along with its citizens, have certainty and a clear understanding of the law.”
(Also on POLITICO: The Supreme Court did not just kill public sector unions)
Meanwhile, advocates are counting on that certainty to take the form of a legalization ruling from the same five justices who struck down DOMA — and maybe even a legacy-minded Chief Justice John Roberts joining, too.
They say they might get there via the Utah attorney general’s petition. Or via circuit court decisions in Oklahoma and Nevada. Or by way of the case that went through a full trial in Michigan, or others in Texas, Ohio, Wisconsin, Tennessee or beyond.
Marriage legalization advocates also feel that the lack of chaos or disruption in the 19 states (plus Washington, D.C.) that have legalized gay marriage — in a statistic advocates like to cite, that accounts for 44 percent of the total American population — will ease the minds of justices who might worry that the country’s not ready for gay marriage, as even Justice Ruth Bader Ginsburg has hinted at in the past. The polls that show popular opinion sprinting to legalization should help, too, they say.
(Also on POLITICO: SCOTUS sides with Hobby Lobby on birth control)
“A movement like ours doesn’t have to win in the four corners of the country. We had never been intending to plod state-by-state until we get through Mississippi in 2030 or something,” said Evan Wolfson, the founder and president of Freedom to Marry, which has been bringing cases for years. “But though you don’t have to win every state, you have to win enough states.”
“We’re just about as ready as we’re going to be,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project, who was among those urging advocates to put the brakes on efforts to go to the court for the Perry decision.
Since Windsor and Perry, over 80 cases have been filed in federal and state courts, now in every single state that doesn’t have legal gay marriage already.
“The court decisions were the equivalent of, ‘Come on in, the water’s warm.’ You have seen the arguments replicated in all these cases,” said Fred Sainz, vice president for communications at the Human Rights Campaign — a group that had, under previous leadership, been among the leading groups wary of now-executive director Chad Griffin’s push to get Perry in front of the Supreme Court.
Even among those who’d been eager earlier to go to the Supreme Court, there used to be a debate over finding the right case, the perfect plaintiff, the exact set of legal issues to present to wary justices. At this point, advocates don’t seem to think it matters which case is the one that gets there, confident that any of them would hit at the same due process and equal protection issues, and that, anyway, the court is seen as likely to wait for a few of them to rule on together rather than just taking the first one.
“Will the court take the first cert petition, I don’t know,” said Andrew Pincus, a former assistant solicitor general during the Reagan administration and currently a partner at Mayer Brown specializing in its Supreme Court practice. “But I think they’re going to take it.”
The timeline, Pincus said, is likely “sometime in the next six or eight months,” adding that as to the likely outcome, “I do think it’s quite telling that there’s been, except for one vote, such unanimity in the results the judges have reached, regardless of who appointed them. I think that tells you a lot of how people are looking at these legal arguments.”
“Each of us who’s involved in one of these cases would love it to be our case. Who wouldn’t?” said Esseks, who’s involved in several of the pending cases. “But does it matter which case it is? I don’t think it does.”
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“Whichever case it is, it’s going to involve a compelling story of real people who are really being harmed by the denial of the freedom to marry,” said Wolfson. “Whoever may get to be the lawyer who stands in front of the court, that lawyer will be swaddled by an extraordinarily rich and powerful presentation. It won’t all depend on one brief or one lawyer.”
Already, advocates have essentially standardized their public relations strategy with the arguments and amicus briefs that they’ve been making in front of courts across the country, largely coordinated by Mary Bonauto, the civil rights project director for Gay & Lesbian Advocates & Defenders — who was an attorney in the case that legalized gay marriage in Massachusetts but was initially hesitant herself about rushing to the Supreme Court.
The amici effort, Bonauto wrote in an email, is geared to “ensure there is authoritative information from all relevant experts.”
That’s what they’ll be hoping to bring to the Supreme Court — with the addition, they hope, of another amicus brief from the Obama administration, which provided one in Windsor.
Even over the past year, proponents’ read on the court has changed: Justice Anthony Kennedy’s opinion in Windsor dismissed the argument that gay marriage caused harm to children and seemed to be inviting the next, larger challenge.
“One can’t be sure what the Supreme Court’s going to do, but that opinion made it feel like it’s a lot safer to go forward now,” said LAMBDA Legal’s legal director Jon Davidson, who also initially warned against the filing of the Proposition 8 challenge, saying no one anticipated how much would shift while the case was working its way through the courts.
Especially after the decisions he’s written so far, Kennedy’s seen as unlikely to cap off his legacy on gay rights by overruling lower courts on legalization. The working assumption is that Kennedy will write the opinion again, joined by the four justices on the court’s liberal wing, where marriage advocates have also read signals from Ginsburg who has, since expressing her concerns two years ago about moving too quickly, officiated at a gay wedding at the Kennedy Center last August and a few weeks later said she thought the growing acceptance of marriage reflected the Constitution’s “genius.”
LGBT advocates had initially thought they could count on Roberts, too — in part because of his vote to uphold Obamacare, in part because they thought he wouldn’t want to be on the other side of an issue with still-expected decades ahead of him as chief. But his questions during the Windsor and Perry arguments and the separate dissent he wrote on Windsor dashed most of those expectations, though they still hold out the possibility that the historic nature of a legalization decision may lead him to give it the extra weight of a 6-3 vote.
Even Robbie Kaplan, the lawyer who argued the Windsor case in front of the Supreme Court, wasn’t counting on this.
“I would never have predicted it would have moved this fast,” she said.
Read more: http://www.politico.com/story/
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