Dec 6, 2012

Supreme Court Still Quiet on Gay Marriage

There are presently 10 pending appeals potentially before the Supreme Court addressing the issue of same sex marriage.  8 of the 10 appeals directly challenge the controversial Defense of Marriage Act (DOMA) on equal protection grounds.  DOMA has already been declared unconstitutional by the 1st and 2nd Circuit Courts of Appeal, as well as by other courts.

It is almost certain that the Supreme Court will address the constitutionality of DOMA on equal protection grounds.  However, the Court can decide which case it will hear to determine the issue, and many legal scholars are eagerly awaiting a decision by the Court as to which case it will hear.  The Justices addressed this issue on Friday, November 30, 2012, but reached no conclusion.  They are expected to address it again when they meet tomorrow, but it is not certain that a decision will be reached before the long holiday recess.

Another appeal potentially pending before the Court has been filed by Massachusetts Attorney General Martha Coakley and raises a separate challenge to DOMA.   Coakley argues that marriage is a matter of state law, and DOMA, a federal law, violates the state’s rights under the 10th Amendment (quick refresher – “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).

The final appeal deals with California’s “Proposition 8”, which was ruled unconstitutional by the Ninth Circuit Court of Appeals.  Proposition 8 amended the California State Constitution to include the phrase that “only marriage between a man and a woman is valid or recognized by the state of California.”

Even if the Court decides the DOMA issue, it is uncertain whether it will address the Massachusetts appeal or California’s Proposition 8.

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