Nov. 30, 2012 -- When the nine Supreme Court justices retreated behind closed doors Friday for a conference they were widely expected to announce whether they might hear at least one of two major cases concerning the issue of gay marriage. Instead they took no action on either a case concerning the 2008 california ballot initiative Proposition 8 that brought a stop to gay marriages in that state or the Defense of Marriage Act, a federal law that defines marriage as between a man and a woman.
The Court could act on Monday when it is scheduled to release orders, or discuss the cases again in their next scheduled conference on next Friday.
At issue in the cases is Proposition 8, the controversial 2008 California ballot initiative that defines marriage as between a man and a woman. It passed with 52 percent of the vote.
A divided three-judge panel of the 9th Circuit Court of Appeals in February struck down "Prop 8," ruling that it "serves no purpose , and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationship and families as inferior to those of opposite-sex couples."
Supporters of Prop 8 are asking the Supreme Court to hear an appeal of that ruling. Gay marriages have been put on hold in California until the Supreme Court decides whether to step in and hear the case.
In court briefs, Charles J. Cooper, a lawyer for ProtectMarriage.com, the original sponsor of Prop 8, writes, "Californians of all races, creeds, and walks of life have opted to preserve the traditional definition of marriage not because they seek to dishonor gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society's legitimate interests, and they cannot yet know how those interests will be affected by fundamentally redefining marriage."
Judge Stephen Reinhardt, who authored the Prop 8 decision, made clear that the court was ruling on the "narrowest grounds" specific to circumstances concerning the passage of Prop 8 and was leaving the more general question concerning whether under the Constitution same-sex couples "may ever be denied the right to marry" to be resolved "in other states" and by "other courts."
Opponents of Prop 8 are represented by David Boies, and Theodore Olson, two lawyers who argued on opposite sides in Bush v. Gore.
They contend in court briefs that the question about whether the states might discriminate against gay men and lesbians in the provision of marriage licenses could be the "defining civil rights issue of our time."
They say that the Prop 8 case might be an "attractive vehicle for approaching, if not definitively resolving, that issue."
"By eliminating the right of individuals of the same sex to marry, Proposition 8 relegated same-sex couples seeking government recognition of their relationships to so-called 'domestic partnerships.' Under California law, domestic partners are granted nearly all the substantive rights and obligations of a married couple, but are denied the venerated label of 'marriage' and all of the respect, recognition and public acceptance that goes with that institution," Boies and Olson say.
But because they won at the lower court, even though it was a narrow ruling, they have urged the Supreme Court not to take up the case. In part, they argue, the court should decline the case because more review would delay the ability of their clients to marry in California.
The Supreme Court could still act Monday in a number of ways. Even if it granted the case, it could issue an opinion narrowly tailored to California and, thus, avoid the broader question regarding a fundamental right to same sex marriage. It could decline to take up the appeal, which would mean gay marriages could resume in California.
Court watchers speculate that some of the conservative members of the court who are uncomfortable with a lower court decision that struck down a successful ballot initiative, might have a greater concern with Justice Anthony Kennedy's ultimate vote. While it only takes 4 justices to agree to take a case, it takes 5 to win and Kennedy is seen as a likely swing vote.
"Conservative justices hoping to find an ally in Justice Kennedy may be concerned about his majority opinion in favor of gay rights advocates in two previous cases in 1996 and 2003," professor Margaret Russell of the Santa Clara University School of Law said.
"Kennedy's basic approach in those cases was to protect the individual liberty and choices of gay men and lesbians."
Other justices might vote against taking up the case out of a belief that the issue should be allowed to percolate further at the state level.
Indeed, many gay rights advocates have been working for years to focus their attention to get a consensus at the state level on the issue of gay marriage, rather than go prematurely to the Supreme Court and get a ruling that could galvanize gay marriage foes or, alternatively, shut down legal avenues.
Nine states and the District of Columbia allow (or will soon allow) gay marriage.
Besides the Prop 8 case, called Hollingsworth v. Perry, the Justices Friday will also address several challenges to a federal law, the Defense of Marriage Act (DOMA) that defines marriage as between a man and a woman.
Such cases do not involve a fundamental right to gay marriage, as the couples involved are already legally married in their state. Instead, at issue is whether legally married same-sex couples (in states that allow gay marriage) can be denied federal benefits, such as Social Security survivor benefits and federal health care, that are available to opposite-sex couples.
The Obama administration decided in 2011 to no longer defend DOMA in court, arguing that it was unconstitutional. Two federal appeals courts have struck down the law.
In court briefs filed with the Supreme Court, Solicitor General Donald B. Verrilli Jr. writes about the impact of the law: "Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that permit them, it excludes such marriage from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status."
Because the government refuses to defend the law in court, Republican Speaker John Boehner of Ohio moved to intervene and appointed the U.S. House of Representatives Bipartisan Legal Advisory Group (BLAG) to do so.
Paul D. Clement serves as BLAG's lawyer and stresses that DOMA was enacted with strong majorities in both houses of Congress and was signed into law in 1996 by President Bill Clinton. In court briefs, Clement writes that DOMA was not meant to invalidate any marriages, but "simply asserts the federal government's right as separate sovereign to provide its own definition which governs only federal programs and funding."
Kenji Yoshino, a professor at New York University School of Law, believes that the court is more likely to take up one of the DOMA cases than the Prop 8 case. "I think the court is almost certain to take the DOMA cases, as they involve lower courts striking down a federal statute rather than a state law, as is the case in the Prop 8 case," he says.
"The DOMA case also asks the court for less, in that it does not affect the marriage law in any state. Rather it returns the Congress to its traditional posture of deferring to state definitions of marriage."