Weekend open thread: Supreme Court marriage case edition

The U.S. Supreme Court confirmed on Friday that justices will consider two cases involving same-sex marriage. I’ve posted some background and analysis of those cases after the jump. One of the cases has the potential to affect same-sex couples legally married in Iowa.

This is an open thread: all topics welcome.

Happy Chanukah to everyone in the Bleeding Heartland community who celebrates—or rather observes—this holiday. My top Jewish parenting tip for this season: buy extra boxes of candles. Your children will want to load the menorah, and they will break some candles.

Most Chanukah traditions (lighting candles, eating fried foods, playing dreidel) don’t acknowledge the dark side of the events that inspired this holiday. History buffs will enjoy these brief accounts of what was really a Jewish civil war.

UPDATE: The National Weather Service reported on December 9, “The record streak for consecutive days with no measurable snow has ended in Des Moines at 279 this morning.”

The Supreme Court justices could have agreed to hear any or all of six cases involving same-sex marriage rights: five challenges to the federal Defense of Marriage Act, and one challenge to Califorinia’s Proposition 8, a ballot initiative approved in 2008 restricting marriage rights to opposite-sex couples only. I recommend clicking through to read Dana Liebelson’s summary at Mother Jones.

On Friday the Supreme Court agreed to hear the appeal challenging Prop 8 on equal-protection grounds and one of the DOMA cases. Adam Liptak wrote in the New York Times,

he new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.

A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the presumed swing member of that court, Justice Anthony M. Kennedy.

Judge Stephen R. Reinhardt, writing for the majority, relied heavily on a 1996 majority opinion from Justice Kennedy in Romer v. Evans, which struck down a Colorado constitutional amendment that had banned the passage of laws protecting gay men and lesbians. The voter initiative in California, known as Proposition 8, had done something similar, Judge Reinhardt wrote.

That reasoning, he added, meant that the ruling was confined to California. […]

The Supreme Court has several options in reviewing the decision. It could reverse it, leaving California’s ban on same-sex marriage in place. It could affirm it on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.

I would be shocked if the Supreme Court issued a broad ruling requiring states to allow civil marriages between same-sex couples. The plaintiffs in this case and some other LGBT activists are confident the high court will rule in their favor, as least as pertains to California marriages. I tend to agree with the pro-equality groups that expressed concern in 2009 about trying to defeat Prop 8 through the courts.

The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law. […]

There are also serious risks if we go to the Supreme Court and lose, especially if we’ve asked it to set aside state limits on marriage. We could still ask state courts to strike down marriage bans under state constitutions, and we could still ask state legislatures to pass marriage laws. But most state courts and legislatures pay attention to what the U.S. Supreme Court says about constitutional principles of fairness and equality. It will be harder for us to get state courts to strike down laws excluding same-sex couples from marriage (and many from civil unions, too) if the U.S. Supreme Court has said they are okay under the federal constitution (take a look at how much the Connecticut and Iowa Supreme Courts relied on analysis from the U.S. Supreme Court in their marriage decisions).

There is a very significant chance that if we go to the Supreme Court and lose, the Court will say that discrimination against LGBT people is fairly easy to justify, and that same-sex couples can be denied the right to marry based on mistaken, antigay assertions that LGBT people make bad parents. […]

A loss now may make it harder to go to court later, and we may need to. It will take us a lot longer to get a good Supreme Court decision if the Court has to overrule itself. Let’s not forget: it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld Georgia’s sodomy law. That was fast for the Supreme Court. […]

The limited DOMA challenge filed by Massachusetts couples is less risky.

In 1996, Congress passed a law saying that the federal government would discriminate against the marriages of same-sex couples (the so-called “Defense of Marriage Act” or DOMA) by denying them all the protections that the federal government gives to all other validly married couples. As a result, the federal government for five years has been discriminating against the married same-sex couples of Massachusetts. It will, as things now stand, continue to deny equal treatment to same- sex couples that marry in Connecticut, Iowa, Vermont, and Maine, and to those who married in California in 2008.

Note: the Supreme Court will not hear the Massachusetts appeal against DOMA. Instead, it will hear a case originating in New York. Adam Serwer notes,

The DOMA case asks the justices to strike down the federal law that dictates which marriages are valid. Even better for supporters of same-sex marriage: Of the several DOMA cases the court could have taken, it decided on Windsor v. United States, in which plaintiff Edith Windsor was unable to claim an estate-tax deduction after her female partner died. Between striking down part of a heavy-handed federal statute and helping someone get a tax cut, it’s the kind of same-sex marriage case even a conservative justice could love. Most importantly, from the point of view of getting the requisite five votes, striking down that part of DOMA would not prevent states from banning same-sex marriage.

I could see the Supreme Court go either way on this case. A ruling in favor of plaintiffs would do nothing for LGBT rights in states that currently ban same-sex marriage. On the other hand, LGBT couples in Iowa and other marriage equality states would benefit if five or more justices agree that it’s unconstitutional to deny federal tax benefits to couples who are legally married where they reside.

According to Liptak’s report,

There was reason to think that Justice Elena Kagan was not free to hear an appeal from the Boston case because she had worked on it or a related case as United States solicitor general. The current solicitor general, Donald B. Verrilli Jr., gave the court a number of other options, including Windsor, probably partly to make sure that a case of such importance could be heard by a full nine-member court.

Share any relevant thoughts or predictions in this thread.

  • A ruling for the plaintiffs in the Windsor DOMA case

    would give federal tax benefits to legally married citizens wherever they reside, in my opinion.

    LGBT couples in Iowa and other marriage equality states would benefit if five or more justices agree that it’s unconstitutional to deny federal tax benefits to couples who are legally married where they reside.

    If a same-sex couple legally married in Iowa moved to Mississippi, they would still get the same federal tax benefits.

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