Fingers crossed

Today may be the day we hear what the Supreme Court is going to do about same-sex marriage.

The very first thing I was going to do on Saturday morning was write up an informative and detailed post providing info about where things stand. But what with one thing and another, the weekend got away from me, and by the time most of you see this post, the news will be public.

But on my way home tonight, I was listening to music, and “Getting Married Today” came on (from Company; those of you unfamiliar with it, don't be fooled by the first 45 seconds; the rest of the song is hilarious). And then while I was still smiling about that, the next song came on, and it was Vienna Teng's “City Hall,” about a same-sex couple getting married in San Francisco in 2004. (That song was the first Vienna Teng song I heard, and is still one of my favorites of hers.)

And it reminded me that today may be the big day.

So, for those of you who haven't been following closely, here's a status update.

First, the TL;DR short version:

The US Supreme Court is expected to announce this week—possibly on Monday (today)—whether they'll take several same-sex-marriage-related cases. My sense is that it's expected that they'll decline to take the Prop 8 appeal, which will mean that same-sex marriage will be legal in California again; and that they will agree to take at least one of the DOMA appeals, which may eventually result in their ruling that the US government has to recognize same-sex marriages that are performed in a state where they're legal.

Now the longer version:

On Friday the 30th (a couple days ago), the US Supreme Court met behind closed doors to decide whether or not to take several cases. Among them were some very important cases involving same-sex marriage. The Court may have made decisions on Friday about whether to take those cases, but the announcement of which ones they will and won't be taking won't come until Monday morning (which is to say today) or later. (There are details about the schedule on SCOTUSblog, but I don't really understand all the details.)

The cases in question fall into two categories:

Prop 8

First, the Proposition 8 case. California's Proposition 8, which amended our state constitution in 2008 to make same-sex marriage illegal, was challenged in federal court in California. The Prop 8 supporters barely tried to defend the proposition, and were trounced by the pro-same-sex-marriage legal dream team, Boies and Olson, seasoned lawyers who've been very successful in the past arguing cases in the US Supreme Court.

Prop 8's supporters appealed, of course. In February of 2012, a three-member panel of a US appeals court ruled against Prop 8 again, but this time on much narrower legal grounds. The Prop 8 people appealed again, this time to the US Supreme Court.

If the Court has decided not to take the case, then the appeals court's ruling stands, and Prop 8 gets thrown out, and same-sex marriages can once again happen in California. (Though possibly not immediately.) Which would be SUPER EXCITING.

If the Court has decided to take the case, then the case may not be resolved until June of 2013 or later. A lot of us are apprehensive about what might happen in this scenario; the Court could easily decide to overturn the lower court rulings, leaving Prop 8 in place. Then again, conventional wisdom has it that the current Court consists of four liberal justices, four conservative justices, and Justice Anthony Kennedy, who's been in favor of gay rights in some past cases. And if anyone has a chance of successfully arguing the case to the Supreme Court, it's Olson and Boies. Who, by the way, have been saying all along that they think more than five justices will vote to overturn Prop 8 if it goes to the Supremes.

So if the Court decides to take the Prop 8 case, the outcome could be very good indeed; it could not only result in Prop 8 being overturned, it could even conceivably result in all anti-same-sex-marriage laws throughout the US being overturned all at once (though that's fairly unlikely).

But taking the case to the Court is risky. And most of the informed opinions I've read have indicated that, although obviously nobody knows for sure, the Court seems relatively unlikely to take the Prop 8 case.


The other set of cases (somewhere between five and eight of them, I think?) are about the Defense of Marriage Act. Back in 1996, the US Congress panicked, and they passed DOMA (and Bill Clinton signed it) in order to ensure that even if some wacky state (I'm looking at you, Massachusetts) were to decide to allow same-sex marriage, at least the US government wouldn't have to recognize that as marriage.

In the past couple years, eight Federal courts have found section 3 of DOMA (the part that says the US government can't recognize same-sex marriages) unconstitutional. Obama's Justice Department refuses to defend DOMA, on the grounds that they too consider it unconstitutional. A lawyer hired by the House of Representatives has thus been defending DOMA in court.

The predictions I've seen say the Supreme Court is very likely to take at least one of the DOMA cases, and maybe several of them grouped together. And although nothing is certain, I think there's a general sense that the Court is fairly likely to eventually (after hearing arguments, of course) agree with all the other Federal courts that have ruled on this issue. Which will open the door to all sorts of awesome ways for life to get better and easier for same-sex married couples in the US. (Possibly including, I hope I hope, immigration issues.)

Okay, enough. And that was the short version. Aren't you glad I didn't get around to writing up the long version?

I'm off to sleep soon. Fingers crossed that when I wake up in the morning, California will have marriage equality again, and DOMA will be one step further along the road to being history.

(Scheduling this post to be automatically posted a few hours after I wrote it, 'cause more people are likely to see it than if I post it in the middle of the night California time.)

2 Responses to “Fingers crossed”

  1. jacob

    It appears that they released today’s orders list without mentioning any of the same-sex-marriage cases, so longer to wait, sadly.

  2. Jed

    And then yesterday, a week after I posted this, they decided to take both the Prop 8 case and a DOMA case. Both to be argued in March, iIrc, and decisions to be released by the end of June, I think. Fingers crossed.


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