Supreme Court Could Make History on Same-Sex Marriage, or Not

da The New York Times del 26 giugno 2013

di Adam Liptak

WASHINGTON — It is usually impossible to say when the Supreme Court will announce any particular decision. There is one exception: On the last day of the term, when the court takes action on every remaining case, the process of elimination supplies the answer.

The last day of the term is Wednesday. The court has yet to issue decisions in two momentous cases on same-sex marriage.

Those facts in combination mean that shortly after 10 a.m. the justices will announce their rulings on challenges to two laws that define marriage to include only unions of a man and a woman.


One case, from New York, concerns the federal Defense of Marriage Act of 1996, which denies federal benefits to gay and lesbian couples married in states that allow such unions.

The other, from California, challenges Proposition 8, the state’s ban on same-sex marriage.

The rulings will come against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. When the justices heard arguments in the two cases in March, nine states and the District of Columbia had laws allowing same-sex marriage. Since then, three more states have enacted such laws.

The New York case, United States v. Windsor, No. 12-307, challenges the part of the 1996 law that defines marriage as between only a man and a woman for the purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that would not have applied to a spouse in an opposite-sex marriage.

Ms. Windsor sued, and last year the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law.

Should the justices strike down the law, married same-sex couples would start to receive federal benefits. Should they uphold the law, the current state of affairs for married same-sex couples – Justice Ruth Bader Ginsburg called it “skim milk marriage” when the case was argued in March – would continue.

No ruling in the case on the 1996 law would require states without same-sex marriage to adopt it.

The case is procedurally tangled. The Obama administration argued that the law is unconstitutional, though it continues to enforce it. House Republicans intervened to defend the law, though it is not clear that they were entitled to represent the interests of the United States.

That leaves the possibility that no party before the Supreme Court had standing to challenge the appeals court’s decision.

The California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 byTheodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit, brought on behalf of two same-sex couples, argued that California voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriage.

Lower federal courts agreed with Mr. Olson and Mr. Boies, striking down Proposition 8.

The justices have several options in the California case. They could reverse the appeals court, leaving California’s ban on same-sex marriage in place. They could affirm the appeals court’s ruling on a theory that would allow same-sex marriage only in California. Or they could address the broader question of whether the Constitution requires states to allow such marriages.

It is also possible that the court will give no answer on the merits, deciding instead that it was powerless to hear the case because no party before it was entitled to appeal from the decisions of the lower courts. (The California officials who lost in the lower courts declined to appeal. Supporters of the ballot initiative did appeal, but it is not clear that they were entitled to step into the government’s shoes to do so.)

That last option – dismissal on standing grounds, or something similar — would lead to short-term confusion, but many legal experts say they expect it would result in same-sex marriage returning to California in a matter of weeks.

Lines Began Overnight for Same-Sex Marriage Rulings

For more than two weeks, gay rights advocates have stood at the steps of the United States Supreme Court waiting to hear decisions from the justices about two cases that will affect millions of gays and lesbians across the nation. With each day that passed without a ruling, they left disappointed.


But Wednesday marks the last day the court will convene for this term, and decisions are expected to be handed down for both the Defense of Marriage Act, known as DOMA, which denies federal benefits to gay and lesbian married couples, and Proposition 8, which bans same-sex marriage in California.

Dozens of people made their way to the court building on Tuesday night, beginning around 7:30 p.m., to sit in line in order to be admitted inside on Wednesday morning to hear the decisions. By 7 a.m. Wednesday the line stretched down the front steps and wrapped around the corner. People stood up to start walking into the building at about 7:15 a.m., and court officials started handing out tickets to enter.

Coffee cups and candy wrappers lined the sidewalk and a few sleepy college-aged boys brushed their teeth in the street. “You only can sleep on the cement and witness history once,” said Joanne Joseph, a law student at Cornell who is studying religious freedom.

In the early morning, the scene in front of the court was relatively tame compared with the throngs outside the hearings that took place in March, but bigger crowds were expected. News media crews clogged the sidewalk in front of the building.

Maureen Mentrek and Karna Adam, both sophomores at Dartmouth, said they came to the court last night at 9:30 p.m. to get in line. They said they slept for about an hour, with pillows and sleeping bags on the sidewalk.

“It’s a huge landmark case and to actually be able to see it and to see these people in line so passionate about it is really great,” Ms. Adam said. “It is a changing time for us and these cases are like the civil rights cases used to be for past generations.”

Jared Millrad, a lawyer who lives in Washington, arrived at the court at about 11 p.m. Tuesday night. He said he came to hear the decisions because DOMA personally affects him. He and his boyfriend got engaged last month in New York and hope to be married within a year.

“I came for those who couldn’t be here whether living or dead, including those heroes of mine in the LGBT community,” Mr. Millrad said.

The court will begin handing down decisions at 10 a.m.

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