By James Lopata
Is this the year the Supreme Court takes on marriage?
The consensus seems to be, yes.
On Monday, September 24, the Supreme Court has scheduled a closed meeting, with marriage cases involving same-sex couples on the agenda. The Court could announce its intentions regarding these cases as early as Tuesday, September 25.
And Massachusetts could figure prominently—in fact, more prominently, than the much hyped, though still important, Prop 8 case from California.
One of the most promising cases is Gill v. Office of Personnel Management. And the lead counsel on that case is New England-based Mary Bonauto.
It was Bonauto who successfully argued for the right of same-sex couples to marry in Massachusetts in the Goodridge case in 2003.
Will Bonauto be arguing before the Supreme Court this year? We asked her in a recent phone interview from her office at the Gay & Lesbian Advocates & Defenders (GLAD).
Bonauto deferred the question in her characteristically humble manner saying, “we have a rock star team.” When pressed on the question, she demurred, “It could be me.”
So what are the chances Bonauto may argue before the Supreme Court during the 2012-13 term?
But first, why might Massachusetts play a greater role in same-sex marriage legal battle than other states, like California, at the Supreme Court this year?
The California Prop 8 case—also known as the Perry case and officially before the Supreme Court as Hollingsworth v. Perry—involves one state—California—and was decided by lower courts on narrow grounds, meaning that the ruling isn’t likely to have much of an effect beyond California.
While the Supreme Court may decide to take on the Perry case on broader grounds than the lower court did—which could have ramifications beyond the Golden State—it seems more likely that the Court will decide to hear a growing number of cases that directly address the constitutionality of the Defense of Marriage Act, often referred to as DOMA. These DOMA cases have broader, national implications.
The two DOMA cases with the greatest chance of being heard by the Supreme Court originated in Massachusetts. They are commonly known as the Gill case and the Massachusetts case. Their official names are, respectively, Gill v. Office of Personnel Management, and Massachusetts v. United States Department of Health and Human Services.
What makes Gill and Massachusetts different from the other DOMA cases?
While the other cases have been ruled on by lower federal circuit courts, these two have been decided on by higher courts—courts whose next and only court of appeal is the Supreme Court.
Thus, the Supreme Court could easily say that it will hear Gill and Massachusetts while referring all other DOMA cases back to federal circuit courts of appeal for decisions.
On the other hand, the Supreme Court could decide to hear all of the DOMA cases together, since they all deal with very similar constitutional concerns.
Or the Supreme Court could decide not to hear any of the cases.
Or, well, the Supreme Court could decided to do any number of things, as the Court can essentially do whatever it wants.
But then Supreme Court justice Ruth Bader Ginsberg, at a talk in Colorado a couple of days ago, seemed to think that at least one case concerning civil marriage rights for same-sex couples would be heard by the Court this term. "I think it's most likely that we will have that issue before the court toward the end of the current term," Ginsburg told an audience when asked about DOMA according to the Associated Press, as published on NYTimes.com.
It is important to keep in mind that it is primarily only one part of the DOMA law that is under scrutiny in these cases. That part is section 3, which keeps lawfully married same-sex couples from having their marriages recognized by the federal government. Section 3 keeps married same-sex couples from sharing in over 1,000 federally granted benefits that married different-sex couples enjoy—such as tax incentives, social security, and estate benefits.
Another major part of the DOMA law that is not currently being challenged in any significant way is the section that prevents states from recognizing marriages of same-sex couples from other states. That is, the Supreme Court is unlikely to take up the question of whether, say, Texas must recognize the legal marriage of a same-sex couple from Massachusetts this term.
So what about our original question? Could GLAD’s Mary Bonauto be standing before the Supreme Court sometime in the next few months?
It is a distinct possibility. But, then again, maybe not.
The conventional wisdom says that the Supreme Court is likely to address same-sex marriage this term, but sometimes conventional wisdom is wrong.
“It’s extremely likely one or more of these DOMA cases will be heard,” Bonauto told us, “but don’t be surprised if none of them are.”
For more information, check out:
— Scotusblog.com. For a particularly good overview of all the marriage cases the Supreme Court may consider, check out Lyle Denniston's post, "Same-sex marriage cases: Made Simple."
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