DECIDING MARRIAGE

[xchrom]

http://www.newyorker.com/online/blogs/comment/2012/09/supreme-court-proposition-8-doma.html



The Supreme Court is likely to take up the subject of same-sex marriage in its coming term, which begins next week. But how the Justices decide to approach the issue—and which case they choose to resolve—may make all the difference in the result. Proposition 8 vs. the Defense of Marriage Act is the first contest before the Court.

Two cases, in broad terms, will go before the Justices for review. The first, and more famous, is the Proposition 8 case out of California. There the lawyers David Boies and Ted Olson, who were antagonists in Bush v. Gore, are challenging the voter initiative that banned same-sex marriage in the state in 2008. The trial court in San Francisco overturned Prop. 8, and the Ninth Circuit Court of Appeals affirmed that ruling last year. Charles Cooper, the lawyer who defended Prop. 8, has asked the Justices to hear the case and overturn the Ninth Circuit. This trial is already so celebrated that there’s a play about the trial-court proceedings.

The other cases are based on challenges to the Defense of Marriage Act, the 1996 law that bars the federal government from recognizing same-sex marriages even in the states where it’s legal. The First Circuit and several district courts have held the law unconstitutional, as a violation of the equal protection of the laws. The Justices will soon decide whether to accept this case for review. (At SCOTUSblog, the great Lyle Denniston has a clear summary of where all of the cases stand.)

Both cases involve same-sex marriage, but they are, in fact, very different. At its core, the Prop. 8 case is about whether there is a constitutional right to same-sex marriage—and whether, or when, the state can ever take that right away. The case involves only California, but the Court could use it to require every state to offer same-sex marriage to its citizens—a dramatic transformation of the law, since only six states currently allow the practice. This is the high-risk high-reward case, one that might establish a right to same-sex marriage in the entire country, or, conversely, end with the Court declaring—in a ruling that could last a generation or more—that no such right exists anywhere.


Read more http://www.newyorker.com/online/blogs/comment/2012/09/supreme-court-proposition-8-doma.html#ixzz26q1Fww3w

[Fearless]

1. *Crosses fingers*