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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Sunday, December 9, 2012

SCOTUS Will Hear Two Same-Sex Marriage Cases

Readers of this Blawg know that we have been tracking the same-sex marriage issue as it has wound its way through the federal courts.  Late Friday, the SCOTUS granted certeriorari in two high-profile same-sex marriage cases.

One of the cases, now known as Hollingsworth v Perry, presents a 14th Amendment Equal Protection challenge to California's Proposition 8, a voter-based initiative that passed back in November 2008.  The proposition enshrines into California's constitution the proscription that only a marriage between a man and a woman would be valid and recognized in the state, thus invalidating prior state laws recognizing such unions.

The case, controversial from the beginning, has many same-sex marriage proponents nervous due to the possibility of an adverse High Court ruling.  These proponents prefer a state-by-state process; slow, sure and steady. 

Also, SCOTUS often dodges sweeping constitutional rulings when it can.  One obvious "out" for the High Court in this case is to rule that the proponents of Proposition 8, basically nothing more than a political lobby, lack proper standing in the case.  Indeed, the SCOTUS raised this issue in its order granting cert.  We here at the Law Blogger, however, hope that the Court will issue a decision on the merits of this important issue.

The second case challenges various provisions of the Defense of Marriage Act [DOMA].  Like the California case, the order granting cert in United States v Windsor also questions the constitutional standing of the intervenors, and provides options for SCOTUS' ultimate disposition.

DOMA, passed surprisingly in 1996 under President Clinton, contains provisions that deny federal rights and benefits to same-sex federal employees and, in the process, legislatively defines marriage as between a man and a woman.  Most legal scholars are predicting the demise of DOMA's no-longer-valid definition of a married couple. 

This, however, is different than expressly recognizing a constitutional right of marital union for same-sex couples; the interplay between the cases therefore will be critical.  Some pundits wonder if these are the "right" cases for SCOTUS selection from among the broad menu of same-sex cases percolating through the federal courts at this time.

Presently, 9 states have declared same-sex marriages legal; another 8 states have granted rights to same-sex couples that are similar to marriage.  If SCOTUS upholds DOMA, it will go down in history as one of the more collosal "botches" of all time; right there with the infamous decisions in Korematsu [upholding Japanese citizen internment following Pearl Harbor] and Bowers v Hardwick [upholding state laws banning consensual sodomy].

As our High Court now takes a look at these momentus cases, we should not forget that this is a tribunal with a mixed track record on such civil rights issues.  For example, in the same year,1967,  SCOTUS struck-down all state laws denying the right to marry between inter-racial couples, but ruled that "homosexuals" were, as a matter of law, persons afflicted with psychopathic personality.

My how things change over time.

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