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Supreme Court Update

March 9, 2013

The two same-sex marriage cases the Supreme Court has agreed to consider will be argued on March 26 and 27. The Proposition 8 case, Hollingsworth v. Perry, will be argued on March 26, and the Defense of Marriage Act case, United States v. Windsor, will be argued the next day. Final briefs in the two cases are due by March 19 and 20.

The briefs and comprehensive commentary are available on Here are some of the more interesting points.

The U.S. Solicitor General, who is a party to the DOMA case, also submitted a friend of the court brief in opposition to Proposition 8, and has asked to be included in the oral argument. Friends of the court are rarely included in oral argument unless they are the Solicitor General, so the request is likely to be granted. Formally opposing Proposition 8 carries out President Obama’s inaugural promise to pursue marriage equality (“from Seneca Falls to Selma to Stonewall”).

Aside from the Solicitor General’s Prop 8 brief, the Court received almost 60 friend of the court briefs. Many on both sides were from the usual suspects, like the Family Research Council on the right and the National Organization for Women on the left. But there were some surprises. For instance, more than 130 nationally prominent Republicans filed a brief arguing that the Court should recognize that same-sex couples have a fundamental constitutional right to marry. More than 250 corporations, municipalities, chambers of commerce, not-for-profits and other organizations signed on to an anti-DOMA brief, arguing that second-class federal treatment of same-sex marriages imposes unnecessary administrative costs on those organizations and requires them to discriminate against same-sex couples in contravention of their values. Commentators have noted how much faster the corporate world has come to terms with marriage equality than it did with earlier civil rights issues of similar importance. usefully points out that one of the more important aspects of the friend of the court briefs is who did not sign on. Of 41 states that ban same-sex marriage, 20 submitted briefs, but 21 did not. That includes 11 states with Republican governors, of which four also have Republican attorneys general. contrasts this half-heartedness to the unanimous state support for Maryland’s position that a state may collect DNA samples of arrestees. One gets the sense that even states that have gone so far as to amend their constitutions to exclude same-sex couples from the majestic malls of matrimony can see that history – and electoral politics – are not on their side. also usefully outlines the options the briefs present to the Supreme Court in the Prop 8 case. At the extremes, the Court can rule that same-sex marriage is constitutionally guaranteed in no states or in all 50 states. In between, the Court could accept the Ninth Circuit’s conclusion that same-sex marriage is constitutionally protected only in a state like California, that granted same-sex marriage and then took it away under circumstances that led the lower court to believe the taking away was motivated by anti-gay prejudice, and not by legitimate governmental objectives.

A similar argument made in the briefs, of particular note in the Solicitor General’s brief: same-sex marriage is constitutionally protected in the eight states that have decided to give same-sex couples the full rights and obligations of marriage but under the rubric of “civil union” rather than “marriage.” The reasoning here is that a state has a legitimate interest in who gets what rights and obligations, but not so much in the label that goes with those rights and obligations. So when a state gives full marriage rights and obligations to same-sex couples but denies them the legal status of “marriage,” the argument is that the denial is not based on legitimate governmental objectives.

I’ve been predicting for some time that the Court will rule for marriage equality in the DOMA case, but not in the Prop 8 case. In other words, I think the Court will conclude that once a state has determined who can be married under that state’s law, the federal government must accept that determination, but the Court will not require the states to legalize same-sex marriages.

I’ve also been dismissive of the “one-state solution” – the argument that same-sex couples gained a permanent federal constitutional right to marry by California’s temporary recognition of same-sex marriages. The “eight-state solution” seems to me to be only slightly more convincing.

Instead, I think the Court will do what it did with interracial marriages. The court will uphold Prop 8, and will reject a constitutional right to same-sex marriage, until it is ready to go completely the other way.

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