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Topics In the News
Another Delay at the Supreme Court
Posted by: Claude J. Summers on 11/19/12
Last updated on: 11/19/12
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The Supreme Court of the United States has delayed its conference to consider several cases involving same-sex partners, including the Defense of Marriage Act (DOMA), California's Proposition 8, and an Arizona case about partner benefits. The conference, which was originally scheduled for September 24, 2012, then delayed until November 20, 2012, has now been rescheduled for November 30, 2012.

At the conference, the Supreme Court justices will decide whether the high court will hear a number of gay-related cases that have been petitioned for review by the court.

Four cases challenging the constitutionality of the Defense of Marriage Act will be considered for review: Massachusetts, Pedersen, Golinski, and Windsor. In these cases, courts in separate circuits have ruled DOMA unconstitutional on the ground that it violates equal protection principles.

Many observers predict that the Supreme Court will choose to review Windsor, the case brought by 83-year-old Edith Windsor, who was required to pay $350,000 in estate taxes after the death of her wife, Thea Spyer, that would not have been owed had she been married to a man.

On October 18, 2012, the United States Court of Appeals for the Second Circuit, in a 2-1 decision, ruled in Windsor's favor. Applying "heightened" or "intermediate" scrutiny, the Court found that DOMA violates the Fifth Amendment's equal protection guarantee.

If the Supreme Court upholds the appropriateness of applying heightened scrutiny to legislation that discriminates against gay people, then a decision in the Windsor case will have implications far beyond DOMA. As Ian Millhiser at ThinkProgress wrote last month, if the Second Circuit's "reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated."

The Court will also consider whether to hear a petition to review the constitutionality of Proposition 8, the amendment that banned same-sex marriage in California. In a narrowly crafted decision, the Ninth Circuit Court of Appeals declared Proposition 8 unconstitutional.

Also to be considered at the November 30 conference will the Diaz v. Brewer, a case about a lower court's issuance of a preliminary injunction that prevented Arizona from implementing a 2009 statute that would terminate the eligibility for health care benefits of the domestic partners of state employees.

It is expected that the Supreme Court will announce which cases have been accepted for review by December 3, 2012.

The actual decisions in the cases that are accepted for review will probably not be handed down until June 2013.

If the Supreme Court refuses to grant certiorari (or review) to the Diaz case, then the temporary injunction granted by the District Court would be upheld and the domestic partner benefits would continue pending the outcome of the underlying suit in which Lambda Legal alleges that the Arizona legislation violates the equal protection rights of state employees.

If the Court refuses to grant cert in the Proposition 8 case, then same-sex marriages could resume in California within days of the announcement.

However, there is a distinct possibility that the Prop 8 and Diaz cases will be held over until the DOMA case(s) that the Court accepts is decided in June.

As Nan Hunter at her Hunter of Justice blog recently observed, the Prop 8 and Diaz cases are quite different from the DOMA cases, but if the Court articulates an Equal Protection Clause standard for sexual orientation classifications in Windsor, then it will "either rule summarily on Prop 8 and the Arizona law or remand those two cases to the Ninth Circuit for reconsideration."

The prospect of delaying marriage equality for California is dismaying, but a broad ruling that legislation involving glbtq people is deserving of heightened judicial scrutiny would be welcome.

However, as Lisa Keen of Keen News Service reports, Jeffrey Toobin, an astute observer of the Supreme Court, said on Sunday that he believes the high court will take the Massachusetts case challenging the Defense of Marriage Act but that it will decline to consider the Proposition 8 case.

Speaking at a forum at the JFK Presidential Library in Boston, Toobin said, "I don't believe they are ready to take the backlash" of striking down laws banning same-sex marriage.

"They can see the writing on the wall," said Toobin. "They see that same-sex marriage is happening."

But, he said, "If they were to take [the Proposition 8 case] and decide there is a right to same-sex marriage, that means there's a right not just in California, but in Mississippi, too. And I don't believe they are ready to take the backlash."

The Lambda Legal video below explains the issues at state in the Supreme Court's decision on the Defense of Marriage Act.

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