The fight over same-sex marriage reaches a climax in March when the U.S. Supreme Court has scheduled argument on California's Proposition 8 and on the federal Defense of Marriage Act on consecutive days.
Media outlets say the rough jostling for seats in the courtroom has already begun. Two pews in the courtroom, to the left of the bench and at a right angle to it, can accommodate about 16 to 20 journalists, but those seats are reserved for news organizations that cover the court on a regular basis.
Some high-profile broadcast journalists may find themselves exiled to the open gallery just outside the courtroom, but anyone there can't see much of the bench and has to be able to recognize the voice of an individual justice asking a question. Since most broadcast reporters make very few visits to the court, confusion may reign supreme.
SCOTUSBLOG.com, one of the few outlets that truly understands the Supreme Court, predicts transcripts of the arguments will be released on the days the cases are heard.
The Supreme Court arguments are unusual in that the national executive and the state executive are not defending the laws.
California voters approved Proposition 8, the California Marriage Protection Act, in 2008 with slightly more than 52 percent for, nearly 48 percent against. Prop 8 says in part, "Only marriage between a man and a woman is valid or recognized in California."
A federal judge declared Prop 8 unconstitutional, and a three-judge appeals court panel in San Francisco agreed 2-1. Argument in the U.S. Supreme Court in Hollingworth vs. Perry is scheduled for March 26.
California Gov. Jerry Brown, when he was state attorney general, refused to defend Prop 8. ProtectMarriage -- its sponsor is a state non-profit, California Renewal -- is the official proponent of the proposition and has been allowed to defend it in the Supreme Court.
The federal Defense of Marriage Act says federal benefits and considerations for married couples apply only to heterosexual unions. The Obama administration is enforcing the 1996 act, but is one of the main challengers in court. Counsel representing the Republican leadership of the U.S. House is doing the defense honors.
Argument in the case, United States vs. Windsor, is scheduled for March 27.
Though arguments are still more than two months away, some heated words already have been filed in briefs.
In the Prop 8 case, proponents of the voter-enacted law score the appeals court ruling against them.
"At the heart of [opponents'] equal protection claim is the remarkable proposition, adopted by the court below, that the traditional definition of marriage, which has prevailed in virtually every organized society throughout human history, is so utterly irrational, so wholly bereft of any legitimate purpose, that it can only be explained as designed to 'dishonor' and 'marginalize' gays and lesbians," a brief filed by proponents said.
Prop 8 opponents point to the Supreme Court's ruling in 1996's Romer vs. Evans.
A number of Colorado municipalities had passed "ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities."
But in a statewide referendum, Colorado voters adopted Amendment 2 to the state Constitution, which banned legislative, executive or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."
The affected communities filed suit and a state judge issued a preliminary injunction declaring Amendment 2 invalid. The judge was sustained by the Colorado Supreme Court.
In the U.S. Supreme Court in a 6-3 majority opinion written by Justice Anthony Kennedy said Amendment 2 violated the U.S. Constitution's equal protection clause.
"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else," Kennedy said. "This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."
But a group of Prop 8 proponents filed a brief arguing that the Colorado decision, Romer vs. Evans, should be overturned by the modern Supreme Court.
"In light of ... perceived parallels between Romer and this case, the [Prop 8 review] should be granted to re-examine Romer. Indeed, this [Supreme] Court's decision in Romer spawned, and shares many of the same flaws with, the circuit court [of appeals] decision and opinion below.'
The Supreme Court erred by imputing in Romer both "'animus' and 'a bare ... desire to harm a politically unpopular group' to the supporters of Colorado Amendment 2," just as the appeals court did in the Prop 8 case.
Citing Justice Antonin Scalia's dissent in Romer, the brief said Scalia "thoroughly refuted such an imputation when he explained that Amendment 2 is not the manifestation of a 'bare ... desire to harm' homosexuals ... but rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."
The brief concludes, "Romer stands as one of the premier contemporary illustrations of the degradation of our founder's understanding of a written Constitution in which authorial intent is jettisoned in favor of an evolving ... Constitution based on the policy preferences of the justices."
A brief filed by the city and county of San Francisco takes a different tack.
The appeals court "grounded its view in uncontroverted evidence that Proposition 8's supporters bombarded California voters with statements conveying the message that 'gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships," the brief said.
The Prop 8 campaign contained "a message that is rooted in historical stereotypes that have long operated to diminish the dignity of gay people."
In the DOMA case, only section 3 of the act is challenged. Section 3 says, "In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
Since the Obama administration won't defend the act, the Bipartisan Legal Advisory Advisory Group of the U.S. House of Representatives, or BLAG, has taken up the banner. BLAG represents the GOP leadership, including House Speaker John Boehner, R-Ohio.
BLAG's brief cites conflicts among the nation's U.S. appeals courts in unsuccessfully arguing that the case accepted by the U.S. Supreme Court, U.S. vs. Windsor, should not be reviewed, and a separate DOMA case, Golinski vs. OPM, out of California, should be reviewed.
The brief said decisions by appeals courts in Boston and New York declaring DOMA unconstitutional conflicted with decisions by the 11 other U.S. appeals courts in the country, at least on how they interpreted precedent.
A brief filed by the Obama administration largely concentrates on the effects of DOMA's section 3, rather than technical arguments.
"Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them," the administration told the Supreme Court in the brief, "it excludes such marriages from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status. ... Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax and other laws."
In the DOMA case to be heard by the Supreme Court, Edith Windsor, now 83, had married her same-sex partner of 40 years in Canada in 2007. When her partner, Thea Spyer, died in 2009 of multiple sclerosis, she left her estate to Windsor.
As executor of Spyer's estate, Windsor paid approximately $363,000 in federal estate taxes, but filed a refund claim under a federal statute that says "property that passes from a decedent to a surviving spouse may generally pass free of federal estate taxes." The Internal Revenue Service denied the claim because Windsor is not a "spouse" under DOMA's Section 3 and thus not a "surviving spouse" within the meaning of the federal estate tax statute.
Windsor then filed suit in Manhattan challenging Section 3's constitutionality, saying it violated the equal protection guarantee of the Fifth Amendment.
There is no guarantee the Supreme Court will decide the constitutionality of DOMA.
In agreeing Dec. 7 to hear argument on section 3, the justices said in addition to arguing on whether the act violates the Constitution's equal protection clause, "the parties are directed to brief and argue the following questions: Whether the executive branch's agreement with the court below that DOMA is unconstitutional deprives this [Supreme] Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has [constitutional] Article III standing in this case."
Similarly, in its order accepting the Prop 8 case, the justices said, "In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, section 2 of the Constitution in this case."
In order to have "standing," or the right to challenge a law or action, a plaintiff must show he or she was harmed by the law or action.
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