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This week at the Supreme Court


Graeme

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I've recently stumbled across www.scotusblog.com which I've found to be fascinating reading at times (and extremely dry at others).

They have a special section on the issue of same-sex marriage, and with the hearings at the Supreme Court this week they've been going through in quite some detail in what I consider to be a very fair-minded manner.

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This has been the lead news story on most of the local LA TV news shows (it may be a slow news day), but no question, it's a pivotal civil rights issue. I only hope they'll vote the way we want and expect them to.

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The articles at that site include a couple that go through all the possible options that could occur, and why the court would pick those options. After reading the articles, I suspect that they'll resolve both issues in a very narrow way, and conceivably by denying standing in both cases. If there's too much disagreement between the justices, that's their fall back position - putting off the decision to another case. That's the only reason I can think of why they added the questions about standing to both cases.

If, however, they can get a majority (and I suspect Chief Justice Roberts will want at least a 6-3 majority), then I expect they'll declare section 3 of DOMA to be unconstitutional, and will probably go with the Obama Administration's 8 (now 9) state option of saying any state that has civil unions that are the equivalent to marriage will need to 'upgrade' those to marriage. I just don't see them making the sweeping decision that some people hope. But both of those would be good outcomes, because by declaring DOMA section 3 unconstitutional, they open up the states to claims to recognise those marriages legal in other states. That will be the wedge used down the track to force same-sex marriage to be legal across the country, but only after there's been more time to show that the country is firmly behind the change.

But there are so many options and possibilities, and trying to second guess the justices's isn't easy.

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There've been first page stories about the decision in the LA times yesterday and today. I learned that Chief Justice Roberts has a first cousin who's gay and in a partnership, and both ladies will be attending the session. The article also shows that people knowing a gay person or gay couple are much more likely to support gay rights and gay marriage than people who claim to know no one who's gay.

C

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Most news articles are coming down on the side of the Court wimping out and not deciding anything on the Prop 8 issue. That, however, isn't all bad. Prop. 8 was determined unconstitutional by the 9th circuit, but the finding was stayed while the issue was being considered by the Supreme Court. My understanding is, if the SCOTUS doesn't find one way or the other on constitutionality of the case, then the 9th circuit's finding will go into effect, and Prop 8, banning gay marriage in CA, will be history.

This won't be a win for the rest of the country, but will for it's most populous state.

C

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I agree that that is the most likely result for the Prop 8 case. The other two main possibilities are that they strike down the appeals court ruling because the people who made the appeal didn't have standing to do so (in which case the original ruling by Judge Walker takes over and the argument starts as to whether that applies to just the couples in the case, or to everyone in CA - some people have argued that he didn't have the power to rule Prop 8 unconstitutional for everyone) and that they send the case back to the Ninth Court, telling them to review it again after seeing the result of the DOMA case.

Result:

* If they decline to rule, the Ninth Court ruling takes hold

* If they rule that the appellant's didn't have standing, Judge Walker's ruling takes hold

* If they send it back to the Ninth Court to reconsider based on the DOMA ruling, then it gets complicated again as to whether marriages can start up again

However, in all three of these possibilities, Prop 8 is either cancelled or (in the last case) likely to be cancelled.

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