Supreme Court will hear same-sex marriage challenges

McClatchy NewspapersDecember 7, 2012 

— The Supreme Court turned to same-sex marriage Friday in a big way, by agreeing to review a California ballot measure that banned it and a federal law that blocks benefits for married same-sex couples.

In an ambitious move, the justices agreed to second-guess a lower court’s decision striking down California’s Proposition 8. Simultaneously, they agreed to consider challenges to the federal Defense of Marriage Act, which blocks same-sex married couples from receiving a host of federal benefits.

The separate cases, to be heard next year, will thrust the often-divided high court into hot political territory and tricky constitutional terrain.

It “tees up the fundamental question of whether the Constitution’s promise of equality for all persons applies to gay men and lesbians when it comes to marriage,” declared David Gans, the civil rights director of the Constitutional Accountability Center, which supports gay marriage.

Meeting in a private session Friday morning, justices had to pick and choose among 10 different appeals that deal in some fashion with same-sex marriage. Eight of the appeals cases challenged the federal Defense of Marriage Act. One appeal involved an Arizona law on benefits for state workers, and one dealt with California’s Proposition 8.

The justices’ action came a day after Maryland issued its first same-sex marriage licenses, after voters approved a ballot measure last month.

Advocates from both sides voiced confidence Friday that they’ll prevail once the court hears arguments, which could happen in March.

California Attorney General Kamala Harris, an opponent of Proposition 8, said the court’s decision to hear the case “takes our nation one step closer to realizing the American ideal of equal protection under the law for all people,” while National Organization for Marriage Chairman John Eastman called the decision “a strong signal” that the Supreme Court will reverse the lower courts and uphold Proposition 8.

At a dance club near California’s state Capitol building, a handful of same-sex marriage advocates, hoping the court would decline to hear the case, had waited for hours for the decision Friday and were crestfallen when it came. Ken Pierce, a spokesman for the Sacramento advocacy group Equality Action Now, lamented that “we’ve waited so long” for same-sex marriage to be upheld.

As is customary, the justices didn’t explain their decision about which cases to hear. No decision was announced on the Arizona case.

The California state ballot measure declared that “only marriage between a man and a woman is valid or recognized.” The state’s voters approved it in 2008 by 52-48 percent, casting into limbo the status of same-sex couples who’d already been married in the state. More than 18,000 same-sex marriage licenses were issued in California before the ballot measure passed.

In a narrowly written decision issued last February, the 9th U.S. Circuit Court of Appeals struck down Proposition 8 on the basis that it stripped individuals of rights that had previously been granted when gay marriages were permitted.

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” Judge Stephen Reinhardt wrote for the appellate court. “The Constitution simply does not allow for laws of this sort."

Opponents of same-sex marriage appealed the ruling to the Supreme Court. The attorneys who’d successfully argued against the ballot measure urged the justices not to hear the appeal, despite the issue’s importance.

“It fairly could be maintained that the question whether the states may discriminate against gay men and lesbians in the provision of marriage licenses is the defining civil rights issue of our time,” attorneys David Boies and Theodore Olson wrote, before noting that the high court’s “traditional standards” for hearing cases didn’t apply.

But Charles Cooper, an attorney for Proposition 8 supporters, urged the court to take the case, declaring that “the profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples is a matter of great debate.”

The Supreme Court could issue either a broad or a narrow ruling eventually. Justices might decide that the Constitution protects same-sex marriage rights in all states, or just in California, or they might uphold Proposition 8. Justices also left themselves a possible escape route, if they decide that the individuals who support Proposition 8 might lack the legal standing to sue.

The appellate court decision striking down the California ballot measure didn’t present a conflict with decisions in other appellate circuits, which is often a criterion for the Supreme Court deciding to hear a case. Although nine states and the District of Columbia now authorize gay marriage, no other state has put itself in California’s position of first granting and then revoking a right to same-sex marriage.

By contrast, the Defense of Marriage Act cases that the Supreme Court will hear involved appellate courts striking down a federal law, which is something the high court usually wants to review.

Congress passed the Defense of Marriage Act, signed by then-President Bill Clinton in 1996, by wide margins after occasionally heated debate. The bill’s author in the House of Representatives, then-Rep. Bob Barr, a Georgia Republican, said the measure would protect against “homosexual extremists” whose beliefs embodied “the flames of hedonism, the flames of narcissism, the flames of self-centered morality.”

Another leading Republican proponent, who’s now in the Senate, then-Rep. Tom Coburn of Oklahoma, denounced homosexual couples as engaging in behavior that’s “depraved” and “based on lust.”

Attorneys defending the Defense of Marriage Act now prefer less impassioned rhetoric.

The law “does not bar or invalidate any state-law marriage,” attorney Paul Clement wrote in a brief, adding that the measure “simply asserts the federal government’s right as a separate sovereign to provide its own definition for purposes of federal programs and funding.”

One section of the law denies a host of federal economic and other benefits to same-sex couples: They can’t save money by filing joint tax returns or share federal health insurance, and surviving spouses can’t collect Social Security survivor benefits, among many other restrictions.

Judges on the Boston-based 1st U.S. Circuit Court of Appeals struck down the law’s provision, while acknowledging that the final decision wouldn’t be up to them.

“Only the Supreme Court can finally decide this unique case,” conceded Judge Michael Boudin, whom President George H.W. Bush appointed.

The fundamental argument against denying federal benefits for same-sex couples under the Defense of Marriage Act is that it violates the Fifth Amendment’s constitutional guarantee of equal protection.

“More than 100,000 same-sex couples are disadvantaged,” Boston-based lawyer Mary Bonauto and her allies wrote in one brief.

The Obama administration initially defended the legislation in court, as is customary, but it stopped doing so last year. House Republicans stepped into the breach, hiring Clement and agreeing to spend up to $1.5 million to defend the law.

Clement is a highly regarded former George W. Bush administration solicitor general. He also argued unsuccessfully against the Obama administration’s health care law before the Supreme Court earlier this year.

The case will be heard sometime before the court’s 2012 term expires next June. As with other politically charged disputes, it’s certain to attract dozens of amicus briefs from interested parties on both sides.

Inevitably, some will target Justice Anthony Kennedy in particular. He was on the losing end of the court’s politically charged 5-4 decision in June to uphold the health care law. On previous gay-rights cases, though, the Reagan administration appointee has twice authored opinions striking down state measures deemed to be discriminatory.

David Siders of The Sacramento Bee contributed to this article.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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