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Wednesday’s Supreme Court Watch – Marriage Equality Cases (UPDATE: DOMA Struck Down)

Supreme Court of the United States (SCOTUS)


– DOMA struck down as unconstitutional

– Prop 8 petitioners have no standing and the District Court ruling stands. California can resume marrying same-sex couples.

Today the final decisions on the merit cases argued in the October 2012 term will be announced starting at 10am Eastern.

SCOTUS Blog for liveblog starting at 9:00am Eastern.  

Pending cases include:

– Hollingsworth v. Perry 12-144, heard 03/26/2013 (Prop 8)

– United States v. Windsor 12-307, heard 03/27/2013 (DOMA)

Here are the two marriage equality cases:

Hollingsworth v. Perry 12-144 CA9 Mar 26, 2013

(1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, ยง2 of the Constitution in this case.

United States v. Windsor 12-307 CA2 Mar 27, 2013

(1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

Some SCOTUS news and commentary, found on the Internets:

Amy Howe at SCOTUSBlog – Waiting on Proposition 8 and DOMA decisions: In Plain English

Over four years ago, superlawyers Ted Olson and David Boies – who opposed each other in the Bush v. Gore presidential election case – came together to challenge California’s ban on same-sex marriage on behalf of two California couples.  In the next few days, the Supreme Court is finally expected to rule on whether that ban (known as Proposition 8) and the federal Defense of Marriage Act – which limits marriage to a union between a man and a woman for purposes of federal law – are constitutional.  But then again, it might not . . . .  So let’s talk about the same-sex marriage cases and what the Court could do with them in Plain English.


WaPo: How the Supreme Court could rule on same-sex marriage, in 1 interactive chart

If the Supreme Court upholds Prop. 8:

– California will continue to have the power to ban same-sex marriages.

If the Supreme Court strikes down Prop. 8:

– on the merits that states cannot withdraw the right to same-sex marriage once it has been extended, only California would be affected.

– on the merits that states cannot provide benefits of marriage through civil unions and withhold the label “marriage,” the seven states in the 9th Circuit would be affected.

– on the merits that the constitutional right of marriage must be extended to same-sex couples, marriage bans in 35 states would be affected.

If the Supreme Court says Prop. 8 supporters lack standing:

– Same-sex marriages in California are likely to resume. How the ruling applies elsewhere would require additional litigation.

If the Supreme Court overturns DOMA:

– Federal benefits available to heterosexual couples must be extended to same-sex couples in the 12 states and the District of Columbia where same-sex marriages are legal.

If the Supreme Court upholds DOMA:

– Congress has the power to define marriage for federal purposes as between one man and one woman. No states would be affected.


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  1. Tom: We had over 6,000 comments and questions yesterday from 274k live readers. Thanks for your interest and for your patience with us as we try to get you answers.

    Thank you, SCOTUSblog and Bloomberg Law for this great public service.

  2. Its the Supreme Court Stupid

    Three cases will be coming down today at the Supreme Court: Sekhar v. US, which has to do with whether the reccommendation by a US gov’t employed attorney can properly be the subject of an extortion attempt, and the two Marriage Equality cases, US v. Windsor, which deals with DOMA, and Hollingsworth v. Perry, which deals with California’s Prop 8. The tea leaf readers at SCOTUSblog believe that, due to the distribution of opinions so far this term, it is likely that Scalia is writing Sekhar, Kennedy Windsor and Roberts Perry. If that is the case, since the opinions are announced by the Justice writing for the majority in reverse seniority order, the first case to come down would be Windsor, followed by Sekhar, with Perry being announced last

  3. HappyinVT

    The one damn day in months that I have to be away from the computer between 10-11.  And I’ll be driving!

    Kysen, if you’re lurking ’cause you care, IM me!!

  4. iriti

    possibility that DOMA also gets punted for standing.

    With this court, I think that’s possible if only because they don’t want to have to overturn DOMA. I wouldn’t lay money on the ‘no standing’ outcome, but I wouldn’t be shocked either.

  5. Comment From David Boies  

    Does anyone know if Ted Olson is in attendance today? From Amy: I cannot personally confirm, but he has been here almost every day lately, so we can presume that he would be here today if at all possible.

  6. iriti

    Per SCOTUSblog

    Justice Scalia is reading from his dissent right now. The Court’s opinion both in explaining its jurisdiction and its decision “both spring from the same diseased root: an exalted notion of the role of this court in American democratic society.”

    Seriously? After yesterday’s travesty on the VRA you dare to put that in today’s dissent?

  7. The Ninth Circuit was without jurisdiciton to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

    Amy Howe: The line up is 5-4: Kennedy dissents, joined by Thomas, Alito, and Sotomayor.

    Majority is Roberts with Scalia, Ginsburg, Breyer, and Kagan.

  8. That makes it 13 states plus DC again, right?

    …and 70% of Millenials support equality, so the train has left the station and will never come back again. I predict a SCOTUS ruling within three years making it federal law to prohibit discrimination anywhere in the country.

  9. slksfca

    …(now California’s lieutenant governor) who started the whole thing back in February, 2004 by ordering city clerks to officiate at same-sex marriages, is now speaking in our City Hall rotunda to an enthusiastic crowd assembled there.

    “We don’t just tolerate diversity [here], we celebrate it.”

    There’s a rally tonight at 6:30 at Market and Castro Streets in the gayborhood, but I’m betting the celebration there has already begun and will continue throughout the day and night.

  10. Angry Man (Rev. Mueller):

    This will devastate the nation.

    Tony Perkins something, Family Research Council:

    “We won.”

    “Natural definition of marriage.”

  11. Frowning blond anchor scowls the questions…

    Tim somebody:

    SCOTUS is saying the states don’t have rights.

    No consistent thread in all the rulings

    Shows where the court is going towards.

    Equality proponents should go to Texas and Utah and file the own Prop 8s to get them thrown out (damn fine idea).

    Now, let’s just change the subject…

  12. Without DOMA, legally married same-sex couples will receive the same benefits that heterosexual married couples received including SSA survivor benefits and military pensions (?).

    Is the next step for a legally married couple that moves to a state with a constitutional or statutory ban on same-sex marriage to file suit against that state under civil rights laws or the commerce clause? I assume that the couple’s federal rights follow them to the new state.

    Inquiring minds want to know.

  13. slksfca

    …when a reporter asked her about comparisons to Rosa Parks and Harvey Milk:

    An accident of history put me here.

    She added that she feels very happy and proud. As well she ought.

  14. slksfca

    Dear Friend:

    Today my spirits are soaring because the Supreme Court reaffirmed the promise of America by rejecting two blatantly unconstitutional measures that discriminated against millions of our families.

    I was proud to have voted against the Defense of Marriage Act in 1996, and it is so heartening to see that the federal government will now treat all marriages equally.

    Because of the Court’s ruling on Proposition 8, millions of Californians will be able to marry the person they love – with all the rights and responsibilities that go along with it.


    Barbara Boxer

    United States Senator

  15. HappyinVT

    A New York City immigration judge immediately stopped the deportation proceedings of a gay Colombian man who is legally married to an American citizen soon after the Supreme Court struck down the Defense of Marriage Act (DOMA) for being unconstitutional, as was first reported by Americablog on Wednesday. The federally-sanctioned DOMA only recognizes marriage between a man and a woman, so Sean Brooks and his Colombian husband Steven’s marriage did not exist in the eyes of the U.S. Citizenship and Immigration Services (USCIS). Therefore, USCIS cancelled Steven’s green card petition.…  

  16. Scalia Rages Against Supreme Court’s Gay Rights Ruling

    Underlying Scalia’s pushback was anger at the majority’s decision to even involve itself in the “abstract questions” of this case and his view that states should be permitted to determine whether or not gay conduct is moral and legislate on that basis.

    My “favorite”:

    “We have no power to decide this case,” Scalia wrote. “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.

    Except the VRA and the ACA and McCain-Feingold and :::tips over from hypocrisy overload:::

    This quote, however, pretty much spells out why Scalia is so ANGRY:

    “As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms,” Scalia wrote. “However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex) …

    There you have it. Scalia disapproves of same-sex sex and Republicans, the party pretending to be against government intrusion in people’s lives, once again steps into people’s bedrooms to choose how they have sex and who they have it with.

    The only “diseased root” is Scalia’s brain where the basis for all his legal decisions is “if I don’t like it, it should not be a law.”

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