Even before Supreme Court rules, gay marriage battles rage in the states – U.S. News

The U.S. Supreme Court is set to tackle gay marriage in a matter of months, but legislative action this week in Rhode Island and Illinois shows that supporters aren’t in wait-and-see mode.

Buoyed by ballot victories in four states in November, they’re now on the offensive in two more; wins would mean that more than 20 percent of Americans live in places that have approved same-sex marriage.

Opponents are pushing back hard to make sure that doesn’t happen, even as they express confidence that the nation’s high court will rule in their favor when it weighs in on the Defense of Marriage Act and California’s Proposition 8.

“Everyone is looking at the Supreme Court. What happens then defines a lot of more about what happens next in the fight,” said Bill Brown, president of the National Organization for Marriage.”

“We’re gonna win that and then there’s going to be a state-by-state fight, and our record on that is amazing.”

The scope of any Supreme Court decision is far from clear. They could rule that every American is entitled to the right to same-sex marriage or they could allow states to keep bans on gay marriage or they could do something in between.

In the meantime, gay-marriage advocates are pressing the issue at the state level. In addition to Rhode Island and Illinois, lawmakers in Delaware, Hawaii, Minnesota, New Jersey and Rhode Island reportedly could consider the issue later this year.

via Even before Supreme Court rules, gay marriage battles rage in the states – U.S. News.

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Supreme Court sets briefing schedule for DOMA lawsuit | Gay News | Washington Blade – America’s Leading Gay News Source

The U.S. Supreme Court has announced the schedule for submitting legal briefs in pending DOMA litigation, making the deadline for the first round of such documents Jan. 22.

Here’s when each brief should be filed in case of Windsor v. United States, the lawsuit against DOMA the Supreme Court agreed to hear last week. The briefing schedule was announced in an orders list on Friday.

No announcement was made on the briefing schedule for Hollingsworth v. Perry, the case challenging California’s Proposition 8 the Supreme Court has also agreed to take up.

For the briefs on the merits of the lawsuit:

* the brief of the House Republican-led Bipartisan Legal Advisory Group, not to exceed 15,000 words, must be filed by Jan. 22;
* the brief of the U.S. solicitor general, not to exceed 15,000 words, must be filed by Feb. 22;
* the brief of lesbian plaintiff Edith Windsor, not to exceed 15,000 words, must be filed by Feb. 26;
* and the reply brief of BLAG, not to exceed 6,000 words, must then be filed within the court’s established rules.

On the jurisdictional question on whether the U.S. Justice Department and BLAG have standing to petition the court in the case:

* the brief of Court-appointed friend-of-the-court Harvard law professor Vicki Jackson, not to exceed 10,000 words, must be filed by Jan. 22;
* the briefs of the U.S. solicitor general, BLAG and Windsor, not to exceed 10,000 words each, must be filed by Feb. 20;
* and reply briefs of the litigants and Jackson, not to exceed 4,000 words, will then be filed within established rules of the court.

The orders lists says other friend-of-the-court briefs must be filed under established rules of the court, except for briefs supporting the positions of Windsor and the solicitor general, which must be filed seven days after the brief of the solicitor general on the merits has been submitted.

via Supreme Court sets briefing schedule for DOMA lawsuit | Gay News | Washington Blade – America’s Leading Gay News Source.

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Supreme Court showdown expected over DOMA and Prop. 8 decisions – latimes.com

WASHINGTON — For more than two decades, the defining battles within the Supreme Court over social and moral controversies have been fought between two devout Catholics appointed by President Reagan.

Justice Antonin Scalia believes the law can and should enforce moral standards, including criminal bans on abortion and on “homosexual conduct” that many “believe to be immoral and destructive.”

Justice Anthony M. Kennedy is a libertarian conservative who believes the Constitution protects the freedom of individuals to “make personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.”

FULL COVERAGE: The battle over gay marriage 

Now the ideological fight between the conservative giants is set for another round. The two 76-year-olds are to some extent likely to be on opposite sides when the court meets in the spring to decide whether the government can refuse marriage and federal benefits to gays and lesbians.

The two have much in common. Born in 1936, they graduated from high school in the early 1950s and excelled at Harvard Law School, where they were a year apart. They were Republicans who rose through the legal ranks. When appointed to the court, both bought homes in McLean, Va.

They agree on much. Both voted to strike down President Obama‘s healthcare law as an overreach by the government. Scalia joined Kennedy’s majority opinion in the Citizens United case that freed corporate and union spending on political ads.

But Kennedy, the libertarian, and Scalia, the social conservative, clash fiercely over the court’s role in deciding moral controversies.

The two split 20 years ago when the court’s conservative bloc was poised to overturn Roe vs. Wade, the ruling that legalized abortion. Though personally opposed to abortion, Kennedy switched sides in spring 1992 and cast a crucial vote to uphold a woman’s right to choose. “Our obligation is to define the liberty of all, not to mandate our own moral code,” Kennedy wrote.

In the past, Scalia has accused Kennedy of having “signed on to the so-called homosexual agenda.” Scalia is likely to have the votes of fellow conservatives Clarence Thomas, Samuel A. Alito Jr. and probably Chief Justice John G. Roberts Jr. to uphold state and federal laws that exclude gays from marriage.

But Kennedy has the much stronger hand. He ranks third in seniority after the chief justice and Scalia, and he has four liberal justices on his left. Because the senior member of the majority decides who writes the opinion, Kennedy could decide who writes the opinions if he votes with the liberals. And he could take the assignment for himself..”

FULL COVERAGE: The battle over gay marriage

Now the ideological fight between the conservative giants is set for another round. The two 76-year-olds are to some extent likely to be on opposite sides when the court meets in the spring to decide whether the government can refuse marriage and federal benefits to gays and lesbians.

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via Supreme Court showdown expected over DOMA and Prop. 8 decisions – latimes.com.

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Scalia defends opposition to gay rights in response to question at Princeton – The Daily Princetonian


On the heels of the announcement that the Supreme Court will hear two cases regarding gay marriage, Associate Justice Antonin Scalia defended some of his more controversial decisions concerning gay rights in a lecture Monday afternoon.

Scalia came to campus to discuss his recent book and share his thoughts on interpreting the Constitution. Scalia, the longest-serving justice on the current Court, has been described as the intellectual anchor of the Court’s conservative wing.

When questioned by Duncan Hosie ’16, who identified as gay, on his dissent in Lawrence v. Texas — which struck down a Texas anti-sodomy law — Scalia stood behind his decision. Hosie questioned Scalia’s comparison between having a moral objection to sodomy and having a moral objection toward things like bestiality or murder. Scalia defended his comparison as a form of argument.

“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” Scalia asked, explaining his dissent. “It’s a reduction to the absurd … I don’t think it’s necessary but I think it’s effective,” Scalia said, adding dryly, “I’m surprised you weren’t persuaded.”

Born in nearby Trenton, N.J., Scalia applied, but was not accepted, to Princeton. He instead attended Georgetown where he graduated summa cum laude as valedictorian in 1957. He later graduated from Harvard Law School.

Scalia was notably plain-spoken during both the lecture and the Q-and-A.

“For those of you who have been to some of our previous lectures, you’ll notice it was a little different this time,” said politics professor Robert George, the campus conservative leader who introduced Scalia and offered closing remarks.

Scalia declined to discuss issues related to active cases or potential future cases during the Q-and-A, instead directing the conversation back to the general arguments he made during the lecture.

During his lecture, he defended his view that focusing on the text and the original meaning of the Constitution are the best interpretive measures to protect the Constitution and democratic ideals.

“The text is what governs,” said Scalia, explaining that it would be wrong to bring in the historical circumstances at the time of the Constitution’s signing or to attempt to interpret the intent of those who wrote the document.

“I don’t care what their intent was. We are a government of laws, not of men,” he explained.

Scalia defends opposition to gay rights in response to question at Princeton – The Daily Princetonian.

Three Paths for the Supreme Court in Gay Marriage Cases – Law Blog – WSJ

It’s been a year full of news on gay marriage, including President Barack Obama’s statement that he personally favors allowing it and several state votes in November supporting it.

Now one of the biggest developments may be imminent. Supreme Court justices are discussing gay-marriage cases at their conference today and may announce as soon as this afternoon whether they will hear the cases.

The first dispute involves the 1996 federal Defense of Marriage Act, which denies federal recognition to same-sex marriages in states that have legalized the practice. Federal appeals courts in Massachusetts (May 2012) and New York (October 2012) struck down the federal law, saying it impermissibly discriminated against gays and lesbians.

Second, the Supreme Court has been asked to review California’s Proposition 8, passed by voters in 2008, which bars gay marriage in the state. The Ninth U.S. Circuit Court of Appeals struck down Proposition 8 in February, but on narrower grounds than gay-marriage proponents had hoped. The appeals court ruled 2-1 that California had improperly granted same-sex marriage rights and then taken them away.

What happens next? Here are three possible scenarios for the Supreme Court’s action Friday or Monday.

1)      The court declines to hear any of the gay-marriage cases. Perhaps the justices might feel that the issue is moving too quickly for them to weigh in now. Also there isn’t a split among appeals courts that needs to be resolved. If the justices go this route, the appellate court rulings favoring gay marriage would stand, but there would be no national precedent to guide other parts of the country.

2)      The court decides to hear a Defense of Marriage Act case but takes no action on Prop 8. The legal issues in the two disputes aren’t entirely the same. In particular, the DOMA issue has a states’ rights component: Those who want to strike down the federal law say Washington shouldn’t be allowed to interfere with a state’s decision to recognize a certain kind of marriage. Supporters of DOMA, which was passed by bipartisan majorities and signed by President Bill Clinton, say the federal government has a legitimate interest in upholding the traditional definition of marriage.

3)      The court takes up both DOMA and Prop 8. This would pave the way for a broader landmark ruling by June 2013 on gay marriage. Even in this scenario, though, the justices could avoid taking a stand on whether gays have a constitutional right to marry, perhaps by endorsing the Ninth Circuit’s more limited reasoning.

via Three Paths for the Supreme Court in Gay Marriage Cases – Law Blog – WSJ.

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Supreme Court to consider whether to review gay marriage cases

Nov 30 (Reuters) – The nine justices of the U.S. Supreme Court are widely expected to decide in a private meeting on Friday to enter the legal fray raging over same-sex marriage.

An announcement to take a case could come as early as Friday afternoon or Monday morning.

Thirty-one of the 50 states have passed constitutional amendments banning gay marriage while Washington, D.C., and nine other states have legalized it, three of them on Election Day, Nov. 6.

At issue is the 1996 Defense of Marriage Act, or DOMA, passed by Congress, which only recognizes marriages between a man and a woman. Gay men and lesbians have specifically challenged a part of the law that prevents them from receiving federal benefits that heterosexual couples receive.

The high court is considering requests to review five cases that challenge the law as a violation of the equal protection provisions of the U.S. Constitution.

Most courts to address the issue, including federal appeals courts in Boston and New York, have found the law’s contested provision unconstitutional.

The Supreme Court is expected to take at least one of the challenges, as the court typically reviews lower-court decisions that invalidate a federal law.

Even in states where same-sex marriage is legal, the couples do not qualify for a host of federal benefits because of DOMA.

If the court accepts one of the cases, the oral arguments will likely take place in early 2013, with a ruling expected by the end of the court term in June.

If the court invalidates the law, states could still be free to legalize or deny same-sex marriages on their own terms.

Friday’s scheduled court conference is one of the Supreme Court’s regular weekly sessions at which it considers what new cases to add to the calendar.

The meetings, attended only by the justices, are held in a small conference room adjacent to the chambers of Chief Justice John Roberts.

The justices vote in order of seniority, and while it takes five of the nine for a majority decision in a dispute, it takes only four votes to add a case to the agenda and schedule oral arguments.

via Supreme Court to consider whether to review gay marriage cases.

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What did Supreme Court hear about same-sex marriage on Election Day? – The Washington Post

Just before Tuesday’s elections, a national gay-rights group sent its supporters in Maryland an e-mail listing an additional reason to go to the polls to approve same-sex marriage.

“Justice Anthony Kennedy is watching you,” the subject line said.

Marylanders used their 2012 ballots to legalize gay marriage, narrowly passing a referendum with only 52% of the vote. But the results meant more to some than others, and one person whose intimate life hinged on the consequences of the vote was a state senator named Rich Madaleno.

What Kennedy and the rest of the Supreme Court saw was by all accounts a momentous day for gay rights and same-sex marriage.

The country reelected a president who has “evolved” enough on the issue to support gay marriage. Wisconsin elected Democrat Tammy Baldwin, who will be the first openly gay member of the U.S. Senate.

Iowa, which two years ago voted out three state supreme court justices who ruled that homosexuals must be allowed to marry in the state, reversed course. It retained a fourth justice who had joined in the decision after a spirited campaign to oust him.

Maryland, Maine and Washington became the first states to approve same-sex marriage through popular vote, rather than a decision of the legislature or the courts. Minnesota defeated an attempt to amend the state constitution to prohibit same-sex marriage, the first time such an attempt has failed at the ballot box.

“The justices obviously pay attention,” said Chad Griffin, president of the Human Rights Campaign, a gay-rights organization.

But, with the court on the cusp of its most serious examination of the constitutional issues surrounding same-sex marriage, it is unclear what the justices heard.

They will soon sort through a half-dozen cases that raise the issue of same-sex relationships; the date for their private conference on whether to accept any has been rescheduled for Nov. 30.

via What did Supreme Court hear about same-sex marriage on Election Day? – The Washington Post.

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Voters boost marriage equality movement – Courant.com

Four years ago this week, Connecticut became the second state to allow same-sex couples to legally marry. Since then, four states — plus the District of Columbia — have joined Connecticut and Massachusetts in ending marriage discrimination.


In the last four years, the momentum was palpable. But nothing provided quite the same jolt to the national consciousness and sense of momentum as last week’s Election Day. Marriage equality was on the ballot in four additional states and won.


With that four-state sweep in Maine, Maryland, Washington and Minnesota, the opponents of marriage equality lost their final talking point, putting to rest the last desperate argument that victories in courts and legislatures somehow are not legitimate and that only a vote of the people counts.

via Voters boost marriage equality movement – Courant.com.

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States legalizing same-sex marriage and marijuana now face battle with Feds

Chicago, IL — Tuesday, voters in Maine, Maryland, and Washington approved same-sex marriage; in Colorado and Washington they legalized recreational marijuana. The problem? In both instances it violates federal law and rules.

The Defense of Marriage Act (DOMA), passed in 1996 by Congress and signed into law by then President Bill Clinton, came about after fear that Hawaii would legalize same-sex marriage, long before the nation would embrace such an adjustment. DOMA defines marriage as between and man and a woman. Attitudes about same-sex marriage have changed dramatically in the last sixteen years and current polling suggests the more than 50% of Americans approve of the unions. Recent Federal Court rulings have declared DOMA to be unconstitutional, but there are further appeals available which will ultimately put the controversy in the Supreme Court before a final resolution is determined. It could be a long path before it is all ironed out.

Although DOMA seems to be on the way out the door via the courts, currently married same-sex couples, while endorsed by the state they live in, will be denied marriage benefits from social security, estate taxes and federal pensions.

via States legalizing same-sex marriage and marijuana now face battle with Feds.

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BREAKING NEWS: Supreme Court to decide on Prop 8/DOMA cases in late November | San Diego Gay and Lesbian News

WASHINGTON — The U.S. Supreme Court this morning indicated that it will consider whether to grant review in Hollingsworth v. Perry (formerly Perry v. Brown), the federal constitutional challenge to California’s Proposition 8.

The Perry case, along with several cases challenging the federal Defense of Marriage Act (DOMA), will be considered at the justices’ private conference scheduled for Tuesday, Nov. 20.

Enacted in November 2008, Proposition 8 eliminated the fundamental freedom of gay and lesbian Californians to marry. DOMA, which was enacted by Congress in 1996, nullifies the marriages of gay and lesbian couples for all purposes of federal law.

“For far too long, gay and lesbian couples in California have been waiting to exercise the fundamental freedom to marry that the United States Constitution already tells them they have,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights (AFER), the sole sponsor of the Perry case.

“With the distribution of our case for the Court’s consideration, we move one step closer to the day when the nation will be able to live up to the promise of liberty and equality enshrined in our Constitution, and all Americans will be able to marry the person they love.”

via BREAKING NEWS: Supreme Court to decide on Prop 8/DOMA cases in late November | San Diego Gay and Lesbian News.

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