By David G. Savage, Los Angeles Times
December 7, 2012
WASHINGTON -- The Supreme Court set the stage Friday for a historic decision on gay rights, announcing it would hear appeals of rulings striking down California's Proposition 8 and the federal law denying benefits for legally married same-sex couples.
The court could decide in the Proposition 8 case whether the Constitution's promise of equal treatment gives gays and lesbians a right to marry. But the justices also left themselves the option to rule narrowly or even to duck a decision.
In 2008, California voters approved the measure limiting marriage to a man and a woman. Last year, the U.S. 9th Circuit Court of Appeals said the proposition had illegally taken away a right to marry that gays had won in the state courts.
This 9th Circuit decision, though limited to California, was the first by federal judges to reject a state's marriage law.
Ted Olson and David Boies, two nationally prominent attorneys who launched the legal attack on Proposition 8, served notice they would seek a broad ruling at a time when public opinion nationwide has turned in favor of gay marriage rights.
"We are going to address all the issues, focused on the fundamental constitutional right to marry of all citizens," Olson said Friday.
"We ought to have marriage equality as a constitutional right everywhere," Boies added.
They maintained they were not concerned that the decision to hear the case jeopardizes their court victory for California gays who wish to marry. If the justices had simply turned down the appeal, gay marriage would have once again been legal in the state.
John Eastman, a California law professor and chairman of the National Organization for Marriage, which supports traditional marriage, saw the court's announcement as a sign that Proposition 8 would be upheld. If so, gay marriage would remain illegal in California, barring another voter initiative.
"It's a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco. We believe the U.S. Supreme Court will overturn this exercise in judicial activism," said Eastman, a former clerk to Justice Clarence Thomas.
In a second case, the justices will review the constitutionality of the Defense of Marriage Act and its provision denying federal benefits to same-sex couples who are legally married. Judges in New York, New England states and California have ruled this law denies gays and lesbians the equal protection of the laws.
The court agreed to hear the case of Edith Windsor, an 83-year-old widow who was given a $363,000 tax bill by the Internal Revenue Service after her female spouse died in 2009. The two had lived together for 44 years and were married in Canada in 2007.
The U.S. government said Windsor did not qualify as a "surviving spouse" under the federal law. A married heterosexual couple would not have had to pay any tax.
A ruling on this issue could affect more than 100,000 gays and lesbians who are married in the United States.
The justices will have at least four options before them in the California case.
First, they could reverse the 9th Circuit and uphold Prop. 8, thereby making clear that the definition of marriage will be left to the discretion of each state and its voters. The defenders of Prop. 8 argue that federal courts should allow this divisive social issue to be resolved over time by voters and state legislatures.
A second possibility would be for the justices to agree with Olson and Boies and rule broadly that denying gays and lesbians the fundamental right to marry violates the Constitution. This would be a historic pronouncement, akin to the 1967 ruling in Loving vs. Virginia, which struck down the laws against interracial marriages.
A third option would be to follow the approach set by the 9th Circuit and strike down Proposition 8 in a way that limits the ruling to California.
The justices could even dismiss the appeal on the grounds that the sponsors of Proposition. 8 had no legal standing to defend it in court, leaving the fate of the law unclear.
Both sides look to Justice Anthony M. Kennedy, a California Republican who is the author of the court's two strongest gay-rights opinions.
Advocates for what they call "marriage equality" believe that Kennedy, 76, would like to cap his career by writing a landmark opinion on gay marriage.
However, conservatives who oppose same-sex marriage note that Kennedy also has been a strong supporter of states' rights. They hope he will decide that federal judges should stand back -- at least for now -- and let the states and their voters resolve the fight over marriage.
It is not clear why the court voted to hear the cases or which way it is headed. It takes the votes of four justices to grant an appeal, but the court does not disclose these closed-door votes. It is not known whether the conservative justices voted to hear the Proposition 8 case to reverse the 9th Circuit, or whether the liberal justices wanted to rule on the right of gays and lesbians to marry.
Both cases also arrived at the court in an odd posture. California's top elected officials -- Gov. Jerry Brown and Atty. Gen. Kamala Harris -- refused to defend Proposition 8 in court. Instead, the defense was taken up by the sponsors of the proposition.
They are represented by Washington attorney Charles J. Cooper, a Reagan administration veteran who once hired as his deputy Samuel A. Alito Jr., who now sits on the high court.
In announcing they would hear the case, the justices said they also wanted the two sides to "argue the following question: Whether the petitioners have standing" to bring the appeal.
A similar issue is in play in the challenge to the Defense of Marriage Act. The Obama administration has refused to defend in court the part of the law denying equal tax, healthcare and pensions benefits to gay couples who are legally married. The House Republicans hired former U.S. Solicitor Gen. Paul D. Clement to defend the law. In Friday's order, the court said it wanted to hear arguments on whether the House Republicans had standing to defend a law in place of the executive branch.
In past cases Chief Justice John G. Roberts Jr. has been insistent on enforcing procedural rules and requiring that all cases have a proper plaintiff and a proper defendant.
The court's intervention came just one month after voters in three states -- Maine, Maryland and Washington -- approved gay marriages.
This brought the total to nine states having legalized same-sex marriages.
The justices are expected to hear arguments in the two sets of gay marriage cases in March and issue decisions by late June.
Times staff writer Jessica Garrison in Los Angeles contributed to this report.
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