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Supreme Court choices grow, speculations about strategy abound
by Lisa Keen, Keen News Service
2012-12-11

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Court watchers and the mainstream media are having a field day with what the U.S. Supreme Court did and did not say about same-sex marriage cases during the past week —both raising and lowering expectations for a blockbuster LGBT legal victory or defeat this year.

At least one high profile television talk show host said the Supreme Court is about to decide whether to make same-sex marriage legal in the United States. That is not necessarily true.

Some legal experts have pointed out that the Supreme Court could use a procedural maneuver to dodge a meaningful ruling on the two marriage-related cases it has accepted. That seems unlikely.

And there was no announcement from the court Monday (December 10) as to whether the high court will hear an appeal from the state of Arizona regarding benefits for the same-sex partners of gay state employees. That seems a bit puzzling.

To all this, add that, on December 5, a group opposed to same-sex marriage petitioned the Supreme Court with yet another marriage case —a case the group and the state of Nevada won in a federal district court just November 26.

The group, the Coalition for the Protection of Marriage, was an intervening party in the case, Sevcik v. Sandoval, joining the state to defend its particular brand of same-sex marriage ban. The Nevada ban, like that of a few other states, provides that same-sex couples can have all the rights and benefits of marriage, but they can't have the term marriage.

Lambda Legal Defense, which filed the lawsuit, said the Nevada law is a particularly onerous violation of the U.S. Constitution's guarantee of equal protection because the Nevada law essentially designates same-sex couples as second-class.

Lambda's lawsuit, said Lambda legal director Jon Davidson, "argues, as a matter of equal protection, that, when the state provides all or virtually all the state law rights of marriage to same-sex couples (as does Nevada), it no longer has any legitimate reason to deny those couples access to the name and dignity of the institution of marriage, and that they are harmed by being singled out in this way."

Lambda filed an immediate appeal to the Ninth Circuit U.S. Court of Appeals of the Nevada federal district court's decision upholding the Nevada law. Briefs are due to that court starting in March.

Meanwhile, Lambda's response brief to the Coalition's petition to the U.S. Supreme Court is due February 6.

Typically, the Supreme Court takes only cases that have received a hearing and ruling from a federal appeals court and, typically, only the party that loses in the lower court petitions the high court.

The Coalition's lead attorney did not respond to a reporter's questions concerning the appeal.

Many legal experts believe the high court will likely say nothing about the Arizona and Nevada cases, nor any of the several other DOMA challenges, until it rules or takes some action on the two cases it has taken.

Pat Cain, a nationally recognized scholar in sexuality law, said that, once the Supreme Court decides Windsor, "they are likely to dispose of the other cases in accord with the Windsor holding.

"If they find no standing or rule more narrowly, then they might have to grant [review to] one of the other cases. But most pundits expect them to make the ruling in Windsor and then dispose of the other cases in accord with whatever they rule."

William Eskridge, another well-known legal expert in sexuality law, agreed, saying the same could happen after a decision in the Perry case.

"The court may vacate and remand," said Eskridge, or exercise "other options."

The two cases that the Supreme Court said December 7 that it will review include one appeal seeking to preserve the core section of DOMA, and another appeal seeking to preserve the California ban on same-sex marriage.

The former case is U.S. v. Windsor, a lawsuit that the ACLU won in the federal district court for Manhattan and the Second Circuit. The latter is Hollingsworth v. Perry, which the American Foundation for Equal Rights won at the federal district court for San Francisco and the Ninth Circuit. Both question whether the challenged laws violate the equal protection rights of gays.

In both cases, the Supreme Court also indicated it wants attorneys to also argue questions of legal procedure: whether the appealing parties in each case have proper authority to file those appeals. The Perry case included that question in the courts below. But, though the standing issue was raised in other DOMA lawsuits, it is new for the Windsor case. The high court asks whether the U.S. House's Bipartisan Legal Advisory Group (BLAG) has proper standing to appeal, given that the executive branch of government chose not to appeal the Second Circuit decision. It also asks whether the Supreme Court itself has jurisdiction, asking: "Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case…."

Interestingly, the high court accepted review of only one petition appealing the Windsor decision in the Second Circuit. There were two petitions, and veteran Supreme Court reporter Lyle Denniston of Scotusblog.com noted in a recent posting that the petition the high court chose to take could affect how the case is argued.

"Because there are questions, procedural in nature but also bearing on constitutional powers, it is not exactly clear who will be on the 'top side' of the two cases, and who will be on the 'bottom side,'" said Denniston. "The top side usually challenges the lower court ruling at issue, and the bottom side defends it. But in the DOMA case granted, the U.S. is both appealing the Second Circuit and arguing that the Circuit Court got it right. That means the Court has to figure out the order in which the lawyers will appear, and what their arguments will be."

Politically minded legal activists speculate the justices, in announcing their decision to review Windsor and Perry, may have added the procedural questions to give themselves a "way out" of a majority vote they don't like.

Denniston said, in a scotusblog post, that the Supreme Court is "very strict about jurisdictional issues like those, so there is a reasonable chance that neither case will result in a merits decision."

The Supreme Court could have limited its review in the Perry case to the much more narrow issue—one presented by the Ninth Circuit panel— but chose instead to look at "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."

That's a much broader question and that doesn't sound like a court that is looking for a way to dodge a politically sensitive issue.

As for why the court chose the Windsor case and not Gill v. Office of Personnel Management, the first lawsuit filed against DOMA: Most legal activists presume it's because Justice Elena Kagan indicated during her Supreme Court confirmation hearing that, as Solicitor General, she had some conversations with Department of Justice officials about the DOMA cases. At that time, the only DOMA cases that had been filed were Gay & Lesbian Advocates & Defenders' Gill case and another filed by the Commonwealth of Massachusetts.

"I assume the Kagan recusal eliminated Gill from consideration," said GLAD civil rights director Mary Bonauto.

Arguments in the Windsor and Perry cases are likely to be scheduled for the second half of March. A decision in each will be rendered before the end of the 2012-13 session June 29.

The eleven petitions related to LGBT issues —one for Prop 8, eight for DOMA, one for Arizona, and one for Nevada —represent the largest number of LGBT-related petitions ever before the U.S. Supreme Court at the same time.

© 2012 Keen News Service. All rights reserved.


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