Analysis of "the Streak"

Scotusblog's estimable Lyle Denniston takes on the concept of a winning streak in marriage equality cases:

What the occasional breaks in the “streak” illustrate, though, is that the outcome is not necessarily predictable as other courts take on the question, and an ultimate Supreme Court decision in favor of same-sex marriage is hardly inevitable. ....

The “streak” also has created a lower-court record that, even if it does not produce the same result each time, will surely impress the Supreme Court when it finally allows itself to be drawn into the fray. Some historians have said that they know of no instance when the Court has bucked a trend such as this one has become. 

But the very nature of that trend can also be an argument against the Supreme Court choosing to get involved itself. If the only breaks in the “streak” have been a handful of rulings by divorce-court judges, none of whom so far has gone deeply into the issue before ruling, the Court could conclude that the issue is working itself out sufficiently in lower courts..... 

But that may not happen.

A number of observers who listened to hearings held last week in the U.S. Court of Appeals for the Sixth Circuit came away with a clear impression that a majority of that three-judge panel might well uphold one or more of the state bans in effect in the four states involved in that hearing. 

That kind of a break in the current “streak” would certainly demonstrate that there is a real division of opinion on the question, one that it would take a Supreme Court decision to resolve.

And there are no guarantees from the Supremes.  Ever.

What it comes down to: Is same sex marriage a new right, or equal access to an existing right?

Excellent analysis by Lyle Denniston:

When judges have ruled that gays and lesbians must be allowed, constitutionally, to marry, they have done so on the premise that this would not be the creation of a new right – that is, not a new-found right special to same-sex couples, but a right to join in equally in the existing, traditional right to marry. Those judges have accepted the argument of the same-sex couples that they want nothing more than equal access to the legal opportunity to wed. That, in essence, is the marriage equality argument. 

When judges have resisted (most often, these days, in dissenting opinions) the idea that same-sex couples’ choice to marry must be constitutionally protected, they have argued that this would be creating a new and special right, and they have noted that the Supreme Court has actively discouraged the crafting of new rights by constitutional fiat, rather than by constitutional amendment or by the acts of legislatures. That, in essence, is the argument against minting a new right. 

Both sides in this exchange can enlist some Supreme Court decisions on their side. After all, the Supreme Court has been working on its interpretation of just what marriage rights encompass for decades – indeed,at least since the late 19th Century. Little by little, the Justices have moved steadily toward the conclusion that, constitutionally speaking, the right to marry is fundamental to the civic order, a right of the highest constitutional rank. 

But yet to be decided, at least for gays and lesbians, is this: just what is the nature of that fundamental right? Is it a sweeping right to choose one’s life mate without interference by government? Or is it a right that is fundamental only because it has deep roots in the traditional definition of one-man, one-woman marriage?

Anti equality arguments just get sillier and sillier

From Slate:

Judge Vaughn Walker raised [a] point with a lawyer defending California’s Proposition 8, demanding to know “how permitting same-sex marriage impairs or adversely affects” straight people’s marriages. The lawyer had this response: “Your honor, my answer is: I don’t know. I don’t know.” 

The problem here, of course, is that an honest answer—“your honor, we believe gay people will destroy the marital institution altogether”—would undermine the supposedly secular, animus-free nature of these arguments. In developing them, anti-gay activists began with a conclusion—gay people don’t deserve the rights that we straight people have—then worked backward, camouflaging each prejudiced premise with a supposedly neutral talking point. Under any kind of scrutiny, these theories instantly fall apart, revealing their bigoted, constitutionally impermissible core.
...
And yet the inanity continues full-throttle, because gay marriage opponents have backed themselves into the corner they’ve always dreaded. They can’t give up their quest now—but they’re barred from citing the explanations that they truly believe, deep down, to be correct. The result is the current tailspin of idiocy, a shifting argument with rootless standards roaming from rationale from rationale in a desperate attempt to find shelter from the storm of progress swirling around it. It’s a pathetic display, but not an unpleasant one to witness. Stripped of all logic and reason, the argument against gay marriage has been reduced to gibberish. Enjoy the babbling while it lasts.

Why Marriage Equality is going to start losing

Important analysis from Think Progress:

Currently, six federal appeals courts, the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits, face marriage equality cases. Though it is fairly likely that equality will prevail in most of these circuits — the legal arguments for marriage equality are very strong, especially after the Supreme Court’s 2013 decision, and supporters of discrimination are left with a questionable states rights argument that no judge has yet embraced — it is unlikely that appellate court judges will show the same unanimity as their counterparts on the trial bench. Among other things, appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.

They go on to enumerate where the problems are most likely to be: the 5th,6th, and 7th. THis is because Appeals Court judges are appointed by the president and are often appointed for ideological grounds. It's why the presidency really matters, because the President appoints the judiciary.

A busy week in equality

Arizona's attempt to facilitate discrimination against LGBT people came perilously close to passing, before being vetoed last night by Gov. Brewer.  While many of the similarly-worded "okay to discriminate" laws have not made it, there are still a number in play.

Yesterday also saw another federal judge strike down an anti-marriage amendment, this time in Texas.  As is usual, there was an immediate stay pending appeal, so no one's getting married just yet, but this is the latest in a line of federal district courts applying the logic of the Windsor case.  So now, we've had rulings in Oklahoma, Virginia, Utah, and Texas.

The delicious thing about these cases is that Justice Antonin Scalia so often has provided the words.

From the HuffPo:

[Judge Garcia] chose to quote from Scalia's dissent in the landmark 2003 case Lawrence v. Texas, which struck down the state's anti-sodomy law....

In explaining why tradition alone can't form a rational basis for a law, Garcia pointed to Scalia's argument in the 2003 dissent that the phrase "the traditional institution of marriage" is "just a kinder way of describing the State’s moral disapproval of same-sex couples." 

And in explaining why the biological ability of many opposite-sex couples to procreate doesn't justify denying equal rights to same-sex couples, Garcia cited Scalia, too. 

"[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry," Scalia wrote at the time. 

Other judges have pointed at Scalia's words in his dissent to Windsor.

 Scalia wrote in that dissent that he believed the majority's logic would inevitably lead to other judges striking down same-sex marriage bans.

What happens if SCOTUS punts?

From the LA Times:

The justices could decide that the sponsors of the ballot measure outlawing same-sex marriage had no legal right, or standing, to defend it in federal court. That would end the case in Washington, but it is not clear what it would mean for California. 

If state officials declared Proposition 8 dead, relying on U.S. District Judge Vaughn R. Walker's 2010 ruling against the measure, same-sex weddings could commence within weeks or months. Or there could be another legal fight over the reach of Walker's ruling.
That technicality has prompted fierce arguments among prominent law professors over legal procedure.

Depending on what the Supreme Court decides, a ruling on standing could provoke a fight over whether the San Francisco judge's decision applies statewide or only to the two couples who sued or the counties where they live, Los Angeles and Alameda.

So,  Gov. Brown could view Judge Walker's ruling as a statewide mandate....

Such a step conceivably could lead to same-sex weddings before a court even had time to rule on the breadth of Walker's ruling. The judiciary would still have the final say, though, and could stop the nuptials once a challenge was filed.

It appears that both sides may have dropped the ball to prevent this.

During the 9th Circuit's hearing on the case, Judge Stephen Reinhardt grilled the Proposition 8 challengers on why they had not named more defendants to ensure a statewide impact....

They didn't think it was necessary.  But meanwhile

ProtectMarriage, the sponsors of Proposition 8, insist that Walker's ruling affected only the two gay couples who sued. But the group did not appeal the scope of his injunction at the time.

So then what?
If the Supreme Court determines that ProtectMarriage has no standing, the group would have to find a surrogate, possibly a county clerk opposed to gay marriage, to make its arguments in court. And that clerk would then also have to show standing. 

"One would hope our opponents would say it is time to stop this fight and move on to something else," Boutrous said.

That's naive.  Our opponents have made an industry out of this and are making serious money opposing equality. I am not sanguine that anyone will be marrying in California any time soon.

Paying the price for equality

Have we won? Some commentators argue that it's all over bar the shouting, that the breathtaking steps towards marriage equality in the last 6 months prove that equality is now guaranteedas this article suggests:

But full legal equality is inevitable, as polls show overwhelming majorities of young people do not hold the same prejudices against homosexuals as their parents' and grandparents' generations. ….

Still the author admits

That gays won the culture war may seem paradoxical in light of the fact that, in most states, they still cannot get married or obtain civil unions (something which the Supreme Court is unlikely to change in its pending decision). The victory might also come as cold comfort to gays living in the 29 states where they can be fired due to their sexual orientation. 

Paradoxical?  You bet. The constitutional amendments against marriage equality will be difficult and in some places nearly impossible to overturn. And, we have hardly won if we can be fired for mentioning we have a same-sex partner. We have made progress, but not nearly as much as the media thinks.

 For one thing, there's the backlash, with a steep increase in anti-gay violence culminating a few days ago in a murder in NYC, of a young man, simply for being gay.

From the HuffPo:

Carson's murder highlights the shortcomings of a rights-based, marriage-based approach to LGBT equality, and cries out for deeper, and more difficult, forms of engagement.

With states falling like dominos into the marriage-equality camp, many have expressed shock that homophobic hatred and violence is "still" possible. But why is this shocking? The advent of civil rights for African Americans did not end racial violence, still widespread nearly 50 years after the Civil Rights Act. Feminism has not ended violence against women. Indeed, from Seneca Falls to Selma to Stonewall, to echo President Obama's historic turn of phrase, legal inequality is only the tip of the iceberg. Submerged beneath it are deep-seated patterns of injustice, privilege, prejudice and fear.…

In social struggles, legal equality is not the beginning of the end, but the end of the beginning. Yes, the state's imprimatur upon animus is now being, gradually, removed. But the animus itself remains. Carson's murder; the other acts of violence against LGBT people in New York… are not vestiges of bygone days we thought we'd left behind. Rather, they are a reminder that most of the work still lies ahead.

That's for sure. It's all too easy to fall into the lull that it's all okay.   But anti-gay attitudes are not vestigial.  They are mainstream.  In Virginia, the GOP has just nominated for Lieutenant Governor a man who defines hate speech against gay people with his lies and insults.

So, as the backlash escalates and the rhetoric becomes more poisonous, we must be more careful. Every gay person knows how to guard their contact with each other, to be wary all the time, as described here:

It's a practice well-learned, the art of coming together and slipping apart -- every corner starts not with a footstep but with a glance forward, every kiss begins and ends with darting eyes above a smile. Sometimes people smile -- women with strollers whose babies reach out and gurgle, old couples who nod slowly in silent recognition and acceptance.

Sometimes it's the long, long stare that goes right through my body…..

Oh, the stare.  Yes, we've all felt the stare:  the disdain, sometimes disgust, as they rake you with their eyes. They don't look away.  They want you to be uncomfortable, to pierce you through.   The writer goes on to describe an encounter in a restaurant, where a woman yanks her daughter to another table lest she (the daughter) be contaminated by the proximity of lesbians. You've got to be taught, you see, to hate the gays. The author goes on to lament,

When I hold my wife's hand I only want to feel her skin in my palm and our rings clink together. I only want to feel safe. 

But we are not safe.  All of us know that feeling--the constant awareness of where we are.  Is it safe to touch our fingertips?  To hold hands?  To exchange a glance?  If we get the stare--will violence follow?

And it's not just the threats of physical violence. There is a mental effect too, of having this constantly in the news, of enduring the lies, the bile, and the hatred of those opposed to equality. I've been worn down by this, by the degrading feeling of being talked about with such language. And a recent study suggests that I'm not alone in feeling this:

As the country awaits two important Supreme Court decisions involving state laws on same-sex marriage, a small but consistent body of research suggests that laws that ban gay marriage — or approve it — can affect the mental health of gay, lesbian and bisexual Americans. When several states passed laws to prohibit same-sex marriage, for example, the mental health of gay residents seemed to suffer, while stress-related disorders dropped in at least one state after gay marriage was legalized….

"They reported multiple stressors during that period," Hatzenbuehler [, the lead investigator,] says. "They reported seeing negative media portrayals, anti-gay graffiti. They talked about experiencing a loss of safety and really feeling like these amendments and these policies were really treating them as second-class citizens." ...

Hatzenbuehler says his larger point is really that policymakers, judicial leaders and ordinary citizens need to remember that social policies are also health policies.

What the equality opponents constantly ignore is that they are not talking about anonymous "they". They are talking about me, my family, my loved ones. They are talking about someone's brother, father, friend, or co-worker. As they tell lies about the gays and our relationships, as they beat (and shoot) our brothers, they are attacking all of us.

And here we sit, waiting for the Supreme Court to dissect us again with their pointed legal niceties, for them to decide if we are we, the people, full American citizens with equal rights--or whether once again we will be pushed aside as something other than fully human.

And it is taking a toll.

Update: will they decide not to decide?

Veteran SCOTUS watcher and SCOTUSblog writer Tom Goldstein think they will decided not to decide:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.... 

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now...So his suggestion was that the case should be dismissed. 

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. ... 

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision. 

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.

Arguments TODAY in front of Supreme Court

Oral arguments on both the Prop8 and DOMA cases will be held today in the Supreme Court. There will also be demonstrations pro and anti. Follow all the action on Scotusblog.

Obama Administration files brief against Prop8

As we all hoped, the Obama Administration/DoJ has filed an amicus brief calling DOMA unconstitutional.  They do this in the context that separate is not equal, and say that offering the benefits of marriage (civil unions) without the name is not right.  If the Court went with this, it would affect not just CA but also 7 other states.

Fron the estimable Scotusblog:

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married. 

And

The brief recommended that the Court, for the first time, apply a tough constitutional standard that courts are to use in judging laws that treat gays and lesbians less favorably. That standard goes by the technical name “heightened scrutiny.” It means that such a law must serve an important government interest, and be effective in doing so. 

Applying that test to California and the other states that now withhold marriage itself from only one group of couples when all couples who share a committed relationship are entitled to the other benefits of marriage, the administration argued that this amounts to a form of discrimination based on sexual orientation and thus cannot stand.

The brief is here.  And just so you can enjoy it, this is the concluding paragraph.  (I've stripped the citations):

California’s extension of all of the substantive rights  and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s  withholding of the designation of marriage is not based  on an interest in promoting responsible procreation and  child-rearing—petitioners’ central claimed justification  for the initiative—but instead on impermissible prejudice. As the court of appeals observed,  that is not necessarily to say “that Proposition 8 is the  result of ill will on the part of the voters of California.”  ‘‘Prejudice, we are beginning to understand, rises not  from malice or hostile animus alone. It may result as  well from insensitivity caused by simple want of careful,  rational reflection or from some instinctive mechanism  to guard against people who appear to be different in  some respects from ourselves.”   Prejudice may not, however, be the basis  for differential treatment under the law.

Long list of big companies come out against Prop8

As the amici briefs regarding the Prop8 case come in, here's another worth noting:

The justices will hear arguments March 26 on California’s Proposition 8, the 2008 ballot initiative that halted gay marriage in the state after it was allowed for five months.
The corporate group, which also includes Facebook Inc. (FB) and Intel Corp., (INTC) will argue in its brief that gay-marriage bans in 41 states harm workplace morale and undermine recruiting. 

“No matter how welcoming the corporate culture, it cannot overcome the societal stigma institutionalized by Proposition 8 and similar laws,” the companies will argue.
...

The publicly traded companies backing gay marriage include Abercrombie & Fitch Co. (ANF),Alcoa Inc. (AA), American International Group Inc. (AIG), Becton Dickinson & Co., EBay Inc. (EBAY), Marsh & McLennan Cos. (MMC), NCR Corp. (NCR), Nike Inc. (NKE), Oracle Corp. (ORCL), Office Depot Inc. (ODP), Panasonic Corp. (6752), Qualcomm Inc. (QCOM), Sun Life Financial Inc., Xerox Corp. (XRX), Zynga Inc. (ZNGA), Barnes & Noble Inc. and Caesars Entertainment Corp. 

A larger group of companies -- more than 200, including Goldman Sachs Group Inc. (GS) -- is also poised to side with gay- rights advocates in a second Supreme Court case, involving a federal law that defines marriage as a heterosexual union. Under that law, known as the Defense of Marriage Act, legally married gay couples can’t claim the federal tax breaks and other benefits available to opposite-sex spouses. 

The companies in that case are part of a collection of more than 250 employers, including cities, counties and law firms.

So if the pro-gay rights lobby includes businesses and prominent REpublicans, just who is the anti-gay rights lobby?

Prominent Republicans to file amicus brief AGAINST Prop8!

From the NY Times:

Dozens of prominent Republicans — including top advisers to former President George W. Bush, four former governors and two members of Congress — have signed a legal brief arguing that gay people have a constitutional right to marry, a position that amounts to a direct challenge to Speaker John A. Boehner and reflects the civil war in the party since the November election.

The document will be submitted this week to the Supreme Court in support of a suit seeking to strike down Proposition 8, a California ballot initiative barring same-sex marriage, and all similar bans. The court will hear back-to-back arguments next month in that case and another pivotal gay rights case that challenges the 1996 federal Defense of Marriage Act....

Legal analysts said the brief had the potential to sway conservative justices as much for the prominent names attached to it as for its legal arguments. The list of signers includes a string of Republican officials and influential thinkers — 75 as of Monday evening — who are not ordinarily associated with gay rights advocacy, including some who are speaking out for the first time and others who have changed their previous positions.... 

In making an expansive argument that same-sex marriage bans are discriminatory, the brief’s signatories are at odds with the House Republican leadership, which has authorized the expenditure of tax dollars to defend the 1996 marriage law. The law defines marriage in the eyes of the federal government as the union of a man and a woman.
...
Tom Goldstein, publisher of Scotusblog, a Web site that analyzes Supreme Court cases, said the amicus filing “has the potential to break through and make a real difference.”

He added: “The person who is going to decide this case, if it’s going to be close, is going to be a conservative justice who respects traditional marriage but nonetheless is sympathetic to the claims that this is just another form of hatred. If you’re trying to persuade someone like that, you can’t persuade them from the perspective of gay rights advocacy.”

The Brief Against Prop8

The Dream Team of Ted Olson and David Boies have filed their brief in the Supreme Court against Prop8 and it's a doozy. (Expect amicus briefs to arrive over the next week. Arguments on March 26th). Here's a slice (my emphases)

Proponents accuse Plaintiffs (repeatedly) of “redefining marriage.” But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court’s declarations regarding the emotional bonding, societal commitment, and cultural status expressed by the institution of marriage, Proponents actually go so far as to argue that, without the potential for procreation, marriage might not “even..exist[ ] at all” and “there would be no need of any institution concerned with sex.” (internal quotation marks omitted). Thus, under Proponents’ peculiar, litigation-inspired concept of marriage, same-sex couples have no need to be married and no cause to complain that they are excluded from the “most important relation in life.” Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.

and

The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships—their love—of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right. They have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry. Indeed, the only harms demonstrated in this record are the debilitating consequences Proposition 8 inflicts upon tens of thousands of California families, and the pain and indignity that discriminatory law causes the nearly 40,000 California children currently being raised by same-sex couples.

The unmistakable purpose and effect of Proposition 8 is to stigmatize gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are “unequal to everyone else,” that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” Neither tradition, nor fear of change, nor an “interest in democratic self-governance,” can absolve society, or this Court, of the obligation to identify and rectify discrimination in all its forms. If a history of discrimination were sufficient to justify its perpetual existence, as Proponents argue, our public schools, drinking fountains, and swimming pools would still be segregated by race, our government workplaces and military institutions would still be largely off-limits to one sex—and to gays and lesbians, and marriage would still be unattainable for interracial couples. Yet the Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relation in life. “In respect of civil rights, all citizens are equal before the law.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).

Read the whole thing! 
(H/T Rob Tisinai)

Anti Equality Groups Broke?

From Reuters:

Foes of same-sex marriage are laboring to pay the tab for an epic legal case now before the U.S. Supreme Court, as the movement suffers from fundraising shortfalls that could sap its strength in future battles. 

ProtectMarriage.com, the advocacy group defending a California gay marriage ban now under review by the high court, showed a $2 million deficit in its legal fund at the end of 2011 - the third year in a row that expenses exceeded donations, federal tax records show.
....
The fund-raising fall-off is a result of donor fatigue, the dramatic rise in public support for gay marriage and the softening of some major gay marriage opponents, including the Mormon Church, people involved with the campaigns say. Both individuals and institutions opposed to gay marriage say many are fearful of being associated with the cause.
"On the New York cocktail party circuit, the intensity of anger over the marriage issue has made being pro-life easy," said Sean Fieler, who runs the New York City hedge fund Equinox Partners. Fieler has donated over $1 million to gay marriage opponents such as the National Organization for Marriage.

All together now:  AWWW.

Prop 8 case: what if they don't find standing?

One of the arguments the Supreme Court will hear in the Prop8 case is whether or not the proponents of Prop8, who appealed their case to the 9th Circuit Court of Appeals, had legal "standing" to do so, since the State of California declined. Scotusblog discusses the possible outcomes.

If the Court were to hold that the petitioners in Hollingsworth v. Perry — the Proposition 8 initiative sponsors — do not have Article III standing to appeal, what then? What would become of the judgments below, and of Proposition 8 more broadly?

The Supreme Court presumably would reverse and vacate the judgment of the U.S. Court of Appeals for the Ninth Circuit, since the Proposition 8 proponents were also the only parties to appeal to that court from the district court judgment. If that were to happen, the Ninth Circuit’s opinion would no longer have precedential effect that would govern future cases challenging California’s (or any other state’s) refusal to recognize same-sex marriages. ....

But what about Judge Walker’s judgment and injunction in the district court in Perry? What would become of that?

Most likely, nothing — it would stand. In the district court, the named defendant state and local officials did appear, and there was complete Article III adversity between them and the plaintiffs. Judge Walker’s injunction was entered against the named defendants, and it altered the legal relationship between them and the plaintiffs. Therefore it should remain intact.....

...it would mean that the two couples who sued in Perry — Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo — would receive marriage licenses from the defendant Clerks of Alameda and Los Angeles Counties, respectively.

But would the injunction have any further effect, on other same-sex couples in California?

It shouldn’t — not of its own force, anyway.

WOuldn't that be amazing....all this and it wouldn't affect the rights of any other couples in CA besides the two couples who brought the case.

If this happens, there will be another ballot measure. Because ultimately that's the most reliable way to overturn this bigoted, hate-filled amendment.

Buckle your seatbelts, here we go again

The Supreme Court has announced the date for oral arguments in the gay marriage cases. From Scotusblog:

The Supreme Court on Monday released the schedule of oral arguments for the sitting that begins March 18, showing that the two cases on same-sex marriage will be heard — one on each day — on Tuesday, March 26, and Wednesday, March 27. The case on California’s “Proposition 8″ will come first, followed by the case on the constitutionality of the federal Defense of Marriage Act; each case is scheduled for one hour of argument, although the fact that each is to be heard alone will allow the argument time to be expanded, and that appears likely.

The Standing Issue on the Prop8 case

As well as hearing arguments on the Constitutionality of Prop8, the Supreme Court has asked to be briefed on the issue of "standing":  that is, whether the proponents of Prop8 have the right to appeal the decision, given the State's unwillingness to do so.

Some people think this may offer the court an "out" to avoid finding one way or the other on marriage. If the Prop8 supporters lack standing (since they can't demonstrate any actual harm to them caused by Prop8), the whole thing becomes rather messy, but remains limited to California.

From Linda Greenhouse at the NY TImes:

Standing has been an issue in the Proposition 8 case ever since the state of California decided not to appeal Federal District Judge Vaughn Walker’s 2010 ruling that the proposition was unconstitutional. The appeal to the United States Court of Appeals for the Ninth Circuit was carried on by a group of people who had worked to get the proposition adopted. The Ninth Circuit questioned whether this group had the requisite Article III standing, and asked the California Supreme Court to tell it whether under California law, a ballot measure’s proponents are regarded as properly standing in the state’s shoes if the state decides not to defend the measure. When the state court answered yes, the Ninth Circuit took the answer as sufficient and proceeded to decide the appeal, finding Proposition 8 unconstitutional. 

Whether standing under state law translates into standing for the purposes of Article III is a question that the United States Supreme Court has poked at but never resolved. Whether this is the right case in which to do so remains to be seen, but it was not particularly surprising for the court to raise the issue. In fact, in an era of direct democracy run amok, with voters being presented with extreme propositions that no rational state government would wish to embrace, a Supreme Court decision on who can carry the ball into federal court is probably overdue.

This was part of the appellate litigation for Prop8, so the existing attorneys have already briefed on this. 

Lyle Denniston at ScotusBlog tells us the court has identified an outside lawyer to argue the standing issue for the DOMA case.  The issue there is a little different than for Prop8, and I believe that it hasn't been part of the case previously, hence the outside lawyer.

Why we should wait

Jonathan Rauch argues for a minimalist finding, in a letter to SCOTUS:

Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.... 

In the California marriage case, you certainly don’t lack for options. You could give gay-marriage opponents a home run, foreclosing gay couples’ constitutional claim for decades to come—a tragic setback, from a gay point of view. You could give gay-marriage supporters a home run, as a California district court did. You could uphold the narrower opinion of the Ninth Circuit federal appeals court, which overturned California’s ban on gay marriage but would have no practical effect in other states. 

Or you could do something you hinted at in your decision to take the case, when you asked to be briefed on whether the parties have standing to sue. That is, you could rule that the case was improperly brought and isn’t ripe for any kind of ruling. Though the precise legal consequences would depend on how you wrote the fine print, the basic effect would be to defer the constitutional battle over gay marriage until a later day. 

That day will come. We can even guess when. In 1948, California’s supreme court overturned the state’s ban on interracial marriage. It took the U.S. Supreme Court 19 years to affirm and nationalize that ruling, and by then the decision wasn’t controversial. In 1993, Congress banned openly gay people from serving in the U.S. armed forces. It took the courts and Congress 17 years to repeal that ban, and by then the decision wasn’t controversial. You see the pattern. Massachusetts enacted gay marriage in 2004. If the past is prologue, by the early 2020s the country will have reached a consensus on same-sex marriage.

 I think there is no chance the court will find broadly. I have hopes for a narrow overturn of Prop8, but I have a bad feeling that it won't happen.

 I think that they will uphold Prop8 and knockout DOMA's clause 3, based on the same arguments:  the states' rights to determine marriage.

That's my bet.

Why the Supreme Court is unlikely to vote for equality

I am not happy the SCOTUS took the Prop8 case.  I fear that they will find that states are perfectly entitled to forbid equality (thus upholding Prop8) and we will be sentenced to a long, hard slog through the ballot box, even if they over turn Clause 3 of DOMA.  Here's why I think so:

From the NY Times:

In private correspondence in 1957, Justice Felix Frankfurter said the court was doing all it could to avoid hearing cases that would require giving the nation an answer about whether bans on interracial marriage — anti-miscegenation laws, in the parlance of the day — were constitutional. 

“We twice shunted it away,” Justice Frankfurter wrote to Judge Learned Hand, “and I pray we will be able to do it again without being too brazenly evasive.” 

Judge Hand responded that “I don’t see how you lads can duck it.” 

But Justice Frankfurter was unpersuaded. 

“I shall work, within the limits of judicial decency,” he wrote, “to put off decision on miscegenation as long as I can.” 

The Supreme Court did not strike down laws banning interracial marriage until 1967, inLoving v. Virginia, when 16 states still had them on the books. That was almost two decades after the California Supreme Court in 1948 struck down a law making illegal “all marriages of white persons with Negroes” in Perez v. Sharp. 

It has been just four years since the California Supreme Court, citing Perez, struck down two state laws limiting marriage to a man and a woman. 

“We are in the midst of a major social change,” Justice Carol A. Corrigan wrote in dissent. She said she supported allowing “our gay and lesbian neighbors” to marry. But she said change must come from the political process, not the courts. 

“Societies seldom make such changes smoothly,” Justice Corrigan wrote. “For some the process is frustratingly slow. For others it is jarringly fast.”

More legal analysis

Two from Soctusblog, well worth reading.

Lyle Denniston considers the standing issue

But besides accepting for review the questions raised in those two petitions, going to some of the fundamental constitutional disputes over marriage laws, the Court — somewhat at the prompting of some of the parties — added questions to each case about its authority to rule. The added questions themselves are constitutional in nature: they arise under Article III, and its grant of power to the federal courts. But that is a power to decide only a “live” case or controversy, and that means there have to be two sides with the legal right to be in court before Article III can be satisfied.

Kenji Yoshino on how the Prop8 case could be "incremental"

DOMA represents an intrusion of federal law into the traditional state domain of family law. As the lower courts have pointed out through various formulations, invalidating DOMA would represent a triumph for state sovereignty as well as for gay rights. Justices on the right tend to favor state power (relative to federal power); Justices on the left tend to favor gay rights. The Justice in the middle—Justice Kennedy—has historically favored both. 

The second premise is that the Court will wish to proceed incrementally—that it will not, in one Term, strike down DOMA and flip the forty-one states that do not currently recognize same-sex marriage. Here, too, I agree. In 1967, when the Court decided Loving v. Virginia, it only had to invalidate the laws of sixteen states. In general, the Court does not like to get too far in front of national consensus. 

It might seem to follow from these two premises that the Court will split the baby between the cases. But the error lies in thinking that the Perry Court must require marriage in all fifty states or none. In fact, the Court can more narrowly invalidate Prop 8 in at least three ways.