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Topics In the News
 
No Word from Supreme Court
Posted by: Claude J. Summers on 12/01/12
Last updated on: 12/01/12
 
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The justices of the Supreme Court of the United States met in conference on November 30, 2012 to consider whether to review several cases concerning glbtq relationships, including challenges to the Defense of Marriage Act (DOMA) and California's Proposition 8. At the conference, the Court apparently took no action on the cases. Shortly after 3:30 p.m., an order posted on the Supreme Court's website announced that they would review two unrelated cases but made no mention of the gay-related cases.

As explained here, the conference was originally scheduled for September 24, 2012, then delayed until November 20, 2012, and then for November 30, 2012.

On Monday, December 3, at 9:30 a.m., the Supreme Court will issue its next list of orders and could indicate that it has taken action on some of these cases. More likely, the Court will delay action until December 7, when the justices hold their next conference.

As Lyle Denniston at SCOTUSblog observes, "It is not uncommon, in cases that have some complexity, for the Court to require more than one Conference sitting to decide how to proceed."

He adds, "At this point, any prediction about where the same-sex marriage cases stand at the Court is subject to serious error. The Court does not explain inactions, so silence can mean many alternative possibilities."

Also at SCOTUSblog, editor-in-chief Tom Goldstein described the marriage cases as the "most significant cases these nine Justices have ever considered, and probably that they will ever decide."

"I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government's assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution."

"The cases present a profound test of the Justices' judgment. The plaintiffs' claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively."

"The striking feature of these cases--not present in any others I have ever seen--is that that they would have been decided by the Justices' predecessors one way and would be decided by the Justices' successors another way."

After noting that the claims of same-sex marriage advocates would have been hopeless in the Supreme Court as recently as five years ago, Goldstein concludes: "But the arc of history tilts towards equality and justice, and our society is rapidly but unevenly coming to the judgment that same-sex marriage is just and right. The claims presented by this case would just as inevitably prevail (probably by a wide margin) in the Supreme Court twenty years from now. By then, it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational. Our attitudes are shifting that fast."

In the videos below, from February 2012, acclaimed attorney Theodore Olson and former American Foundation for Equal Rights president (current HRC president) comment on the historic decision by the Ninth Circuit Court of Appeals declaring Proposition 8 unconstitutional.

 
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