Supreme Court Hears Volatile Same-Sex Marriage Cases

The U.S. Supreme Court has again waded into controversial waters, after upholding “Obamacare” last June, and is hearing arguments regarding the legal rights of gay couples. A lawsuit attacking California’s new law banning same-sex marriages was heard yesterday in Hollingsworth v. Perry. Perry was one of several plaintiffs denied the right to marry in 2009. The transcript of the oral arguments can be found here here.

I was especially interested that the first concern the justices had — and which may decide the case — was the concept of legal standing, i.e. whether the plaintiffs could even file suit.

Standing, a tricky bar a plaintiff must clear, was one reason used by the Dallas District Court and Fifth Circuit Court of Appeals to dismiss the lawsuit I filed to challenge Dick Cheney’s election in 2000. The lawsuit was appealed to the Supreme Court by appellate attorneys, but having just decided the controversial case of Bush v. Gore the week before, the Court declined certiorari. More information about that case can be found in this article from the Wall Street Journal here — tenth story down. Interestingly, the two opposing lawyers from the pivotal Florida decision, David Boies and Thedore Olson, were on the same side of yesterday’s case.

Today the Supreme Court is hearing a parallel case, U.S. v. Windsor, where an elderly woman sued to overturn the Defense of Marriage Act of 1996 (DOMA) that prevents legally married gay couples from collecting federal benefits or participating in federal programs. The law was struck down by lower courts. It affects more than 1,000 federal laws, including estate taxes (at issue here), Social Security survivor benefits, and health insurance. Oral arguments have just ended. Here’s today’s transcript.

This morning five of the justices questioned the constitutionality of DOMA. Justice Anthony Kennedy, often the swing vote on the equally split court, joined the four liberals in posing skeptical questions to the lawyer defending the law. Justice Ginsburg observed that DOMA had created full marriages and skim milk marriages.

As always, it is not clear which way the justices are leaning. It is believed that the Court will not make definitive rulings on these issues and might even decline to rule, citing standing and other technical reasons. Decisions on the two cases are expected in late June.

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