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Guide to SCOTUS Hearings on Prop 8 and DOMA

Guide to SCOTUS Hearings on Prop 8 and DOMA

by Karen Ocamb on March 25, 2013

This is it. At 10:00am Eastern time on Tuesday, the Justices of the Supreme Court will sit down and for one hour hear oral arguments on the constitutionality of Prop 8. They will hear DOMA on Wednesday.

The American Foundation for Equal Rights (AFER) explains that Chief Justice John Roberts – who’s invited his lesbian cousin to attend the hearing – will call the case and ask Prop 8 attorney Charles Cooper to make his argument for 30 minutes. Roberts will then ask AFER lead co-counsel Ted Olson to make his argument for 20 minutes. Olson will be followed by U.S. Solicitor General Donald B. Verrilli, Jr. to speak for 10 minutes on behalf of the United States government, which has filed an amicus curiae supporting AFER’s Plaintiffs Kris Perry (after whom the case is named) and Sandy Stier and Jeff Zarrillo and Paul Katami.

Bear in mind that the time allotted is not just for the attorneys to argue but for the Justices to ask questions. Additionally, if Cooper saved some of his time for rebuttal, he can use that after Verrilli concludes.

The arguments will not be broadcast and any texting or electronic feeds out of the courtroom are prohibited. However – the Court will release audio of the proceedings by 1 p.m. EDT on Tuesday and 2 p.m. EDT on Wednesday on DOMA. AFER says: Sign up for breaking news updates to receive an audio recording >

The Justices will vote at their private Conference on Friday, March 29 on both Prop 8 and DOMA.  A final decision is expected by the end of June.

There are a slew of LGBT and straight journalists reporting, blogging and tweeting before and after the hearing – and during if they’re outside cover the 550 faith leaders at A Prayer for Love & Justice on March 26th at the Lutheran Church of the Reformation as the Court deliberates the legal equality of LGBT love and marriage. They will then march (singing This Little Light of Mine) to the massive United for Marriage Rally at the steps of the Supreme Court. Members of the Courage Campaign handed out 500 signs – so watch for them, too. The National Organization for Marriage is also going to be marching to the steps.


AFER - @AFER (https://twitter.com/afer)

Freedom to Marry -@freedomtomarry

Also you can follow the hashtags #time4marriage and  #marriageequality

Buzzfeed’s Chris Geidner (a gay attorney who has a press pass for inside the court) is at @chrisgeidner

Variety’s Ted Johnson who’s following the Hollywood/political connection (Bruce Cohen, Rob Reiner, Dustin Lance Black, etc) at his new blog at Variety’s new site and tweeting at @tedstew

The Courage Campaign will be there in force – as they have been at every trial. Their impressive Prop 8 Trial Tracker is now EqualityOnTrial.com Adam Bink and Scottie Thomaston will be blogging there. Jacob Combs also has a press pass and will be tweeting at @jacobdcombs. Scottie is @indiemcemopants and Adam is @adamjbink.  Look for a first impression piece, followed later in the afternoon with more in-depth pieces on issues such as standing and strict scrutiny, as well as arguments for and against – all posted on EqualityOnTrial.com

Think Progress’ Zack Ford is @ZackFord.

AFER has been REALLY GOOD about posting everything – transcripts, breakdowns of the key arguments, etc. They also have a landing site on their blog “Everything You Need to Know About Marriage Equality at the Supreme Court.

Here’s an excerpt from Right Wing Watch’s Peter Montgomery really good primer: History-Making Week for Marriage Equality at the Supreme Court — The Stakes Are Enormous:

 What Could Happen?

Almost anything. If a conservative majority rules that Prop 8 and DOMA are constitutional, we’d be back where we are now, with marriage equality needing to be fought on a state-by-state basis, and with DOMA blocking federal recognition until the law is overturned by Congress and the president. It would leave many Americans without equal protection under the law, but would not block future progress.

In the Prop 8 case, the court could agree with the district court that allowing voters to take away the right to marry from some couples was unconstitutional. A narrow ruling on that front would give couples in California a right to marry but might not change the law anywhere else. The most expansive possibility – also the most explosive politically – would be a ruling that the principle of equal protection under the law, guaranteed by the 14th Amendment to the Constitution, requires all states to recognize marriage equality.

If the Court upholds the lower court rulings on the Defense of Marriage Act, Edith Windsor will have a big tax refund coming to her, and couples whose states recognize them as legally married should get access to all the federal benefits and legal protections afforded to other married couples, including access to Social Security and veterans’ survivor benefits.

Each case is complicated by questions about “standing” – the legal principle about who has a right to file or participate in a lawsuit. If the court decides that Prop 8’s supporters lack standing to defend the initiative that the governor and attorney general declined to defend, Prop 8 would be nullified, and same-sex couples in California could once again get legally married.

The DOMA case has an even more complicated set of questions around standing. Normally the federal government defends federal laws that are being challenged in court. But the Obama administration changed its mind on this case and has declined to defend the law. So Republican members of the House of Representatives – technically the Bipartisan Legal Advisory Group – stepped in and hired a lawyer to defend the law. The Supreme Court justices asked law professor Vicki Jackson to submit a brief on the standing issues. She told the court that since the federal government agrees with the lower court rulings, the Supreme Court has no jurisdiction in the case, and that the congressional BLAG has no standing to intervene.

How Will They Make Up Their Minds?

Justices will be considering a wide range of arguments made by proponents and opponents of equality. There are briefs, for example, on both sides invoking the principle of federalism.

One question is whether a denial of marriage equality is a form of discrimination. Opponents of marriage equality say there’s no discrimination because even gay people are allowed to marry a person of the opposite sex. Equality proponents say that courts have recognized the freedom to marry the person you want is a fundamental right, one obviously denied to a gay person who cannot marry a person of the same sex.

Another question is what kind of legal standard will be used. Equality opponents will argue that the laws should be upheld as long as there is any “rational basis” for passing the law. Equality supporters, including the Obama administration, argue that the defenders of these discriminatory measures should have to defend them against a higher standard known as “heightened scrutiny.” The court could decide, as the district court did in Prop 8, that the law doesn’t even pass the “rational basis” test, so that the court doesn’t have to make a decision on whether sexual orientation deserves a form of heightened scrutiny that is applied to evaluating laws with a discriminatory impact based on gender or race. An amicus brief by a number of women’s organizations argued that heightened scrutiny should apply because discrimination based on sexual orientation is similar to discrimination based on gender because it is also grounded in gender stereotypes.

This is one arena in which equality opponents will point to gay-rights victories as evidence that LGBT people are powerful enough to defend themselves and don’t need the courts’ protection. And they’ll cite “ex-gays” to argue that homosexuality is not “immutable” so gay people don’t merit protection as a class.

The strangest argument from opponents of marriage equality might be that government needs to protect against the unique “threat” posed by irresponsible heterosexuals. Paul Clement, the lawyer spending millions of taxpayer dollars to defend DOMA, has argued that opposite-sex couples have the “undeniable and distinct tendency” to “produce unplanned and unintended offspring.” Charles Cooper, another lawyer arguing against marriage equality wrote that the government doesn’t need to let same-sex couples get married because they “don’t present a threat of irresponsible procreation.” This is quite a come-down from rhetoric about the “sanctity of marriage.”

But bear in mind, Montgomery says, everything might not be cleared up when the Court issues its ruling in June.

The Bottom Line

Regardless of what the court does, the political and cultural shift in support of LGBT equality will continue. Support for equality among young Americans is overwhelming.

Last week, the American Foundation for Equal Rights described the Prop 8 case this way:

The Prop. 8 Proponents’ arguments boil down to this: The Constitution does not protect the right of every American to marry the person they love. California can single out its gay and lesbian citizens for unequal, second-class treatment under the law. Government can treat its gay and lesbian citizens as separate and inferior. These arguments cannot be squared with the principles of liberty and equality enshrined in our Constitution. That is why the Prop. 8 Proponents lost in district court and the court of appeals.

“Beneath the legal arguments in both cases is a simple principle,” says People For the American Way’s Michael Keegan. “These cases are about equality under the law. That’s a core American value and a constitutional principle that, thankfully, is supported by a growing majority of Americans.”

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Los Angele is With You Ted Olson and Prop 8 Plaintiffs
March 26, 2013 at 7:21 AM

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