The Daily Agenda for Monday, December 3
December 3rd, 2012
Supreme Court May Announce Whether It Will Hear Marriage Cases: Washington, D.C. Or, it may not. But according to custom, the Court is expected it release its next orders list this morning. According to Lyle Denniston at SCOTUSblog:
The next opportunity for the Court to issue orders will be at 9:30 a.m. Monday. Nothing has ruled out the possibility that some actions on same-sex marriage could be announced at that time, although there is no indication that that will occur. It may be that the Court needs more time to decide what it wants to do next on any of the cases. If the Court has chosen to deny review of all of the cases, even that might not come out on Monday, since the chances are that there would be dissents from some of the denials, and it would take some time to prepare dissenting opinions. But denial of all of the cases is an extremely remote possibility anyway.
If no orders on any of these cases emerge on Monday, the next indication of what the Court may be doing with the issue could come with re-setting them for the private Conference that will be held next Friday. It is not uncommon, in cases that have some complexity, for the Court to require more than one Conference sitting to decide how to proceed. Ordinarily, the Court re-schedules cases after releasing orders and opinions from a Conference. Thus, that could happen on Monday or Tuesday of next week — orders are due Monday, one or more opinions Tuesday, but only in cases already heard.
About a half-dozen cases challenging the constitutionality of Section 3 of the Defense of Marriage Act are also before the Court. This decision is probably the more complicated one for the Court to take because they can decide to pick one or more of them, and there are undoubtedly strong arguments over which one to pick. (Not picking any appears highly unlikely, as that would render DOMA Section 3 unconstitutional in some states but not in others.) U.S. v. Windsor. this case brought by Edie Windsor who is being forced to pay an inheritance tax of $363,053 after her legally married wife passed away, is considered a very strong contender for two reasons: not only did the Second Court of Appeals rule that Section 3 was unconstitutional, but also that the case merited heightened scrutiny in reaching the decision. The U.S. Justice Department urged the court to consider this case. The House Bipartisan Legal Advisory Committee (BLAG) urged the court take a different case: BLAG vs. Gill, formerly Gill vs. Office of Personnel Management.
The second marriage-related question before the court is Hollingsworth v. Perry, the Ninth Circuit Court of Appeals issued a very narrow ruling which declared California’s Proposition 8 banning same-sex marriage unconstitutional. Some Court observers believe that the Court may decide to pass on hearing this appeal because of the narrowness of the Ninth’s ruling. But if the Court does decide to deny certiorari, I suspect we wouldn’t hear about it today. I can’t imagine that Scalia could get his blistering dissent written and spell-checked so quickly. If the Court denies certiorari, then California’s same-sex couples may have their marriage rights restored to them before the year is out.
A third somewhat marriage-related issue before the court is Brewer v. Diaz, in which the Ninth Circuit Court of Appeals struck down an attempt by the Arizona legislature to eliminate health care benefits for the same-sex partners and dependents of state employees following the passage of Proposition 102 in 2008. The question before the Court is whether Arizona’s action violates the Equal Protection Clause by limiting healthcare benefits to married spouses and dependents.
TODAY IN HISTORY:
New York Business Group Says People with AIDS Should Be Forced to Work at Home: 1985. Just as the state of New York was about to release a report showing that workplace AIDS discrimination complaints had gone up from four the previous year to nineteen in 1985 (one was a heterosexual security guard who was fired after a one-week hospital stay), the New York Business Group on Health, which advised 265 businesses including Bloomingdale’s and New York Telephone Co., recommended that employees diagnosed with AIDS should be required to work from home. The group also suggested that supervisors treat workers as they would any other seriously ill employee.
“Our theses is employers should recognize the importance of AIDS as a problem and prepare for its eruption,” said Dr. Leon Warshaw, the group’s Executive Director. “They should form fairly explicit policies and procedures. Otherwise, they’ll find themselves suddenly involved in a crisis situation and as a result they will be liable to take ill-ocsidered actions, knee-jerk reactions that could boomerang.” Like, say, telling a Bloomies sales clerk to try doing his job from his walk-up, instead of following the group’s other recommendation: that companies educate their employees of the then-prevailing medical opinion that AIDS couldn’t be spread through casual contact.
Ron Najman of the National Gay Task Force blasted the proposal. “That suggestion is totally inappropriate,” he said. “It’s counterproductive, and it leads to de facto discrimination. They are speaking with forked tongue here. It’s opening the door to tolerating hysteria and panic.”
Allan Bérubé: 1946. He is best known as the author of the best-selling book, Coming Out Under Fire, about the stories of gay men and women who served during World War II. The book, which drew on GIs wartime letters, interviews with veterans and declassified military documents, Bérubé revealed a history that had previously been hidden. What’s more, his timing was prescient; the book came out just three years before “Don’t Ask, Don’t Tell” was enshrined into law. The book earned Bérubé an Lambda Literary Award for outstanding Gay Men’s Nonfiction. The book was made into a documentary in 1994, which won a Peabody Award in 1995 and earned Bérubé “Genius Grant” from the John D. and Catherine T. MacArthur Foundation in 1996. After he died in 2007 the bulk of his personal and professional papers were donated to the GLBT Historical Society in San Francisco, where they are currently being organized and catalogued for future historians.
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