SCOTUS deliberates

Timothy Kincaid

November 30th, 2012

Today the Supreme Court of the United States will meet and discuss a number of cases of importance to our community. The two highest profile cases are California’s Proposition 8 (currently called Hollingsworth v. Perry), and the collective challenges to the Third Clause of the Defense of Marriage Act.

Today they will decide whether to hear challenges in those cases or to let them stand. For a case to be heard, four justices must agree that they wish to deliberate the appeal. Their decisions will be announced Monday.

It’s all guesswork at this time, but my prediction (a common one) is that the judges will refuse to hear the appeal to the overturn of Proosition 8, agreeing with the Ninth Circuit Court of Appeals that once a right has been granted to citizens, it then cannot be taken away from one group of people based on dislike or disapproval, thus returning marriage equality to California. Thus the Court can, for now, delay a decision on the larger question about the constitutionality of anti-gay marriage bans.

Should they decide to hear Perry, it may mean that the court is prepared to decide whether heterosexual and homosexual citizens have equal standing under the law.

As for DOMA3, that is clearly unconstitutional. It is almost certain to get a writ of certiorari. The cases will probably be clumped, but common wisdom suggests that the Edie Windsor case will be the vehicle through which the challenge is argued. On the face of it “gay couples should pay higher taxes than straight couples” is and argument that does not sit comfortably with pro-gay liberals or anti-tax conservatives. Also going against DOMA3 is that it is a federal usurpation of an area of law that has traditionally been left to the states.

Of course, there is a chance that the court will not even hear DOMA3 but will simply agree that this is an unconstitutional law and let it be stricken next week. Monday will be exciting no matter the decisions made today.

DN

November 30th, 2012

On the topic of “gay couples should pay higher taxes than straight couples,” a NOM supporter made that argument (with a straight face) on their facebook page in the days after the most recent election.

I pointed out to him that what he was suggesting was having an underclass of citizens who are required to shoulder a heavier tax burden so he could have a lighter one. Shortly thereafter, I was banned from posting at NOM. I didn’t swear, and I was never impolite or uncivil. For all the bleating they do about free speech, they sure love to shut down dissenters. PS I know that moderating a facebook page comes nowhere near the land of free speech – just pointing out their contradiction.

Rob

November 30th, 2012

You assume that if the Court refuses to grant certiorari, it means that the Court agrees with the decision below. That is not necessarily the case. Some justices may believe the Prop 8 case has too unique a fact pattern and may want to wait for another case. Some justices may be uneasy about the way the other justices might rule. The Court hears only about 1 percent of the cases before it. It’s refusal to hear a case doesn’t indicate agreement with that 99 percent.

Also, if the Court refuses to hear the challenge to Section 3 of DOMA, the statute would not be held unconstitutional nationwide, but only in the circuits that have already ruled. This would create a regional patchwork of differing federal law and a bureaucratic nightmare for federal officials. If for no other reason than this, the Court is likely to hear one or more of the DOMA challenges.

Hunter

November 30th, 2012

Maggie Gallagher made essentially the same argument in response to an article at NRO that Roman Catholic priests should just refuse to sign civil marriage licenses — in her eyes, it’s OK for gay couples to live without the protection of the law, but not straight women and children.

I pointed out in the comments that it was obvious her concern was not preserving marriage, but pushing anti-gay bias.

customartist

November 30th, 2012

SCOTUS: 202-479-3000

markanthony

November 30th, 2012

I believe all of the current justices use whats called defensive voting when granting certi, which is what Rob is referring to. Its easy to imagine that the liberals and conservatives being so uncertain about Kennedy’s (and Robert’s) vote in these cases, that they decline to hear all of them.

A little far fetched, but its certainly possible.

Mark F.

November 30th, 2012

customartist:

Why are you giving out the number of Scotus? You seriously can’t believe the justices are influenced by phone calls, do you?

Robert

December 1st, 2012

pretty good analysis, Timothy. I saw that Jim posted an article from the Scotus Blog, I think this review is a good one as well (it’s one of a series and the others are good too, all from Scotus Blog):

http://www.scotusblog.com/2012/11/same-sex-marriage-iv-the-courts-options/

Mark F:

While it might not be apparent at first glance, the Supreme’s are Human Beings, and as such, are sometimes swayed by Public Opinion. Read Jim’s article on the fromt page about Justices decide case of lifetime….

And yes, it might seem silly to call them, but hey, even the smallest chance of affecting the outcome is better than no affect, not to mention the other side is calling, so it might be prudent to do so ourselves and be represented.

Timothy Kincaid

December 1st, 2012

Thank you, Robert

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.

 

Latest Posts

Today's Agenda Is Brought To You By...

Today In History, 1646: Execution in New Netherlands Colony

Today In History, 1741: An Early Ex-Gay Testimony

Today In History, 1962: Supreme Court Rules Physique Magazines Are Not Pornographic

Today In History, 1972: United Church of Christ Ordains First Gay Minister

Today In History, 1978: Rainbow Flag Debuts

Born On This Day, 1935: Larry Kramer

Born On This Day, 1963: George Michael

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.