Supreme Court Defers Considering Prop 8/Article Argues Narrow Decision Permissible

“So when they ask me later, I won’t tell them how it’s going/But now my head is empty and the work load keeps on growing”

As readers probably know by now, the Supreme Court has rescheduled its consideration of the Proposition 8 litigation, now captioned Hollingsworth v. Perry.  The Court will now discuss whether to grant the Prop 8 proponents’ petition for certiorari (i.e., review of the decision by the U.S. Court of Appeals for the Ninth Circuit) at its (private) conference on November 30.  (The SCOTUS docket for the case is here.)  Although the Court is likely to announce shortly thereafter that it is granting or denying review, it is also possible that the Justices might keep the case in limbo until after it decides one or more challenges to the constitutionality of the so-called Defense of Marriage Act (DOMA) – which virtually all Court watchers including me are certain it will grant review in – even though there are some distinct issues in the DOMA challenges and the Prop 8 challenge. 

While we await word on the Court’s conference on Perry, here’s a link to a draft of Repealing Rights: Proposition 8, Perry, and Crawford Contextualized, a short piece I’m preparing for a symposium issue of the N.Y.U. Review of Law & Social Change, which hosted me at a live symposium (also featuring Rachel Maddow!) on “Making Constitutional Change: the Past, Present, and Future Role of Perry v. Brown” on October 5, 2012.  In it, I argue that Prop 8’s proponents and their supporting amici are wrong in claiming that one Supreme Court decision from 1982 affirmatively establishes the constitutionality of Prop 8’s targeted, partial repeal of marriage rights enjoyed by same-sex couples in California.  The proponents are therefore also wrong to maintain that the narrow, California-specific reasoning of the Ninth Circuit Court of Appeals is foreclosed by Supreme Court precedent.  It is not, and the Court would not act improperly if it were simply to deny review in Perry, leaving the Ninth Circuit judgment intact and finally clearing the way for same-sex couples to marry civilly in California.

Historic Vote by Four States for Marriage Equality

“Can’t you feel a brand new day?”

Based on the available results, I am thrilled to note that on November 6, 2012, the voters of four states reversed a dramatic and discouraging pattern of popular votes against same-sex couples’ freedom to marry.   The people of Maryland and (it appears as of this writing) Washington voted “yes” on referenda approving measures their state legislatures had passed to open civil marriage to same-sex couples.  The people of Maine approved an initiative to remove the mixed-sex requirement from their marriage law, just three years after a referendum there defeated a bill the Maine legislature had passed to do the same.  And in Minnesota, the voters defeated a proposed constitutional amendment that would have entrenched the state’s present statutory exclusion of same-sex couples from marriage.  This is an especially welcome development, as it interrupts an unbroken string of thirty-two marriage “definition” state constitutional ballot measures.  (Although Arizona voters rejected a discriminatory initiative in 2006, that measure would have gone further and amended the state constitution to block any legal status for same-sex couples “similar to marriage.”  A narrower ‘marriage only’ amendment was approved by a majority of Arizonans voting on it two years later.)

Coupled with the first-ever election of an openly LGBT person to the U.S. Senate (Tammy Baldwin, a lesbian and member of the U.S. House of Representatives from Wisconsin), these four states’ voting for marriage equality may well mark the beginning of a sea change in the country’s views of LGBT people and issues affecting us.  It certainly reinforces the view that nationwide marriage equality is, with the continued hard work of equality supporters of all sexual orientations, an eventuality and not a mere pipe dream.  I fervently hope that a majority of the Justices of the Supreme Court of the United States see that and welcome this shift toward fuller justice, and that they rule accordingly in whatever they do with the cases challenging the discriminatory federal law restriction on marriage in Section 3 of the so-called Defense of Marriage Act (DOMA), one or more of which the Court is certain to take up, and in the Perry litigation thus far holding unconstitutional California’s Proposition 8, which amended our state constitution to strip same-sex couples of the right to marry, which the Court could well decide not to review in light of the careful, narrow opinion written by Ninth Circuit Court of Appeals judge Stephen Reinhardt.  We may know shortly after November 20 whether the Supreme Court will hear any of those cases.  Today, though, feels like a brand new day.

Everybody look around

'Cause there's a reason to rejoice you see

Everybody come out

And let's commence to singing joyfully

Everybody look up

And feel the hope that we've been waiting for

Everybody's glad

Because our silent fear and dread is gone

Freedom, you see, has got our hearts singing so joyfully

Just look about

You owe it to yourself to check it out

Can't you feel a brand new day?

[“Everybody Rejoice (Brand New Day),” by Charlie Small, from the soundtrack of The Wiz]


[date typo corrected 20121107 8:23 p.m. PST]