Monday, December 10, 2012

Same-Sex Marriage Heading to SCOTUS - COTW #121

Due to illness, we have a special, belated, Monday Case of the Week. On the plus side, the delay allowed me to pick up the Supreme Court's order from friday granting certiorari in two same sex marriage cases!

No doubt, these two cases will receive a ton of media hype. For now, let's just start with the questions presented.

Hollingsworth v. Perry
Per the Petition for Certiorari:
Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.
AKA "the Prop 8 case." The Supreme Court also added its own question: "Whether petitioners have standing under Article III, §2 of the Constitution in this case." For additional coverage and all available documents, view the SCOTUSblog case page here.

United States v. Windsor
Per the Petition for Certiorari:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
AKA "the DOMA case." The Supreme Court also added its own question to this case:
Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
SCOTUSblog case page here.

The added questions in the two cases leave the Supreme Court an escape hatch to avoid answering the tough questions. I hope that doesn't happen, but you never know. For example, could we end up with three justices holding the parties lack standing in the Prop 8 case, three holding that it's unconstitutional because of a right to same-sex marriage, and three holding that it's constitutional and there is no right to same-sex marriage? It's possible.

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