Wednesday, November 28, 2012

Marriage Equality Update

Even after the victories for marriage equality in Maine, Washington and Delaware (and to a lesser extent Minnesota), all eyes will be in the US Supreme Court this Friday as they head into a long delayed private conference to tackle 6 petitions related to marriage equality.  Two of the cases involve a right previously recognized and then removed by either popular vote, Proposition 8 in California, or by legislative action as in regards to the case out of Arizona.  The remaining petitions deal with the notorious so called Defense of Marriage Act or DOMA which denies federal recognition of same-sex marriages.

The question they will answer in conference is which, if any, of the cases they will hear oral arguments on.  They could deny cert and let the lower courts' decisions to stand without comment, they could decide to hear each of the individual cases, combing those asking the same basic constitutional question or they could remand to the lower courts with or for clarification.

After talking to a friend who has experience with the Supreme Court and considering the ideologies of the individual justices, I believe the following decisions will be made:
  • Prop 8 and Arizona - Both cases basically come down to can a right that was recognized be taken away.  In both cases, the 9th Circuit ruled that no, you can't take a way a right previously recognized.  I think the Supreme Court is going to deny cert in both cases.  As much as certain justices might be biting at the bit to rule one way or the other, I believe that they don't want to delve into this issue just yet.  By denying the cert, they don't have to rule on the broader issues and the decisions of the lower courts are narrow enough for the Justices to feel comfortable in denying cert.
  • DOMA - I think the Justices will agree to hear the cases, but in a combined format.  I also think that the Justices will punt by deciding which standard of scrutiny the various courts are supposed to use in regards to marriage equality without dealing with whether or not DOMA is constitutional.
As anyone knows with the Supreme Court, any guess as to how the Justices will decide is just that, a guess.  What we can be assured of is that President Obama will most likely have the opportunity to appoint three, maybe even four justices.  This fact could way heavily on the Justices or it may not matter at all.

Lyle Denniston over at SCOTUSBlog is doing a great preview of the cases.  Be sure to check it out for more views.

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