WASHINGTON – What will the U.S. Supreme Court do about Proposition 8 and the Defense of Marriage Act cases that are now before them?
Early this Friday, the nine justices of the nation’s high court are scheduled to meet behind closed doors to discuss these crucial gay-rights cases that affect millions of LGBT Americans.
Will the justices listen to the voices of voters in Maine, Maryland and Washington state, making history on Nov. 6 as the first states to approve marriage equality via the ballot box? Will they pay attention to the numerous national polls that show that a majority of Americans are in favor of marriage equality?
Will the justices be influenced by another four years of the Obama Administration, which supports marriage equality and refuses to defend DOMA in court because the Justice Department thinks the law is discriminatory and unconstitutional?
Will the justices take a bumpy ride on the highway of caution, keeping marriage equality as a state’s rights issue?
Will the justices dive in head first and decide whether to legalize same-sex marriage for all Americans or ban it nationwide for all gay and lesbian couples?
Will the justices choose any or all of the DOMA cases that seek to overturn the law that prohibits federal benefits to same-sex couples?
Looking for answers
These heavy questions have LGBT Americans on pins and needles awaiting answers.
The first answer could come as early as Friday morning, should the high court decide to announce at that time what cases it will not review. Traditionally, the high court meets in closed session on Friday morning and publicly announces on the following Monday morning what orders they have issued.
Most legal experts expect the Supreme Court to take up at least one of the DOMA cases, but more likely lump them all together. They appear split on whether the justices will review the Prop 8 case.
David Boies, a lead attorney for the American Foundaton for Equal Rights which took up the case of two California couples challenging Proposition 8, told Bay Area News Group that the justices would take one or more of the DOMA cases.
"The more complicated question is what they do with our case," Boies said.
Jane Schachter, a Stanford University law professor, agreed with Boies in the same article.
"There is sort of a circle at the core of all of this, which is DOMA, and from there it comes down to how broad to make the circle," she said. "One thing to think about is how much of the overarching issues do they want to get into."
Ted Olson, who teamed with Boies in the Prop 8 case, said Monday that he is unsure whether the Supreme Court will hear the challenge to the Prop 8 ruling in a lower court and an appeals court that the California law banning same-sex marriage was unconstitutional.
“We won the case, and if they don’t take it, our clients have won. They will be allowed to marry,” Olson said. “But if they take the case, it could lead to a broader victory. We believe gays and lesbians have a constitutional right to be treated equally. And if it is a constitutional right, you shouldn’t have to try to win at the ballot box in every state.”
If the high court does not take the Prop 8 case, gay and lesbian couples would be able to marry again in California within a matter of days following the decision. It could be an early holiday gift for Californians, especially to Paul Katami and Jeffrey Zarrillo as well as Kristin Perry and Sandra Stier, the four plaintiffs in the Prop 8 trial, two loving couples who simply want to get married.
But if the Supreme Court takes up the case, the justices will probably render a decision by next spring.
Boies, a Democrat, seems more confident than Olson, a Republican, about the prospects of the Supreme Court taking up the Prop 8 case. On Nov. 12, Boies predicted that there would be “more than five votes” out of nine justices to strike down Prop 8.
Some legal observers look to Chief Justice John G. Roberts as another swing voter, based in his deciding vote that protected Obamacare.
Olson, however, sees Justice Anthony Kennedy as the swing vote on Prop 8. Kennedy authored the majority vote in 1996 that struck down an anti-gay initiative approved by Colorado voters and the 2003 opinion that nixed an anti-sodomy law in Texas.
Michael J. Klarman, a Harvard legal historian, told the Tribune Washington Bureau that Kennedy may be looking at these cases as the crowning jewel of his legal legacy.
“If you care about history and your legacy, that must be pretty tempting, to write the court’s opinion that could be the Brown v. Board of Education of the gay rights movement,” Klarman said, referencing the historic case that ordered school desegregation.
Ken Williams is Editor in Chief of SDGLN. He can be reached at [email protected], @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.