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Christopher Stoll

Analysis

LGBT rights take center stage at Supreme Court: What to expect this week

Sunday, September 23, 2012

On Monday the United States Supreme Court returns from its summer break. From their very first day back on the job, the justices will begin considering what is surely the largest number of LGBT equality cases that they have ever faced in a single term.

And these aren’t just any cases, either. The cases on the Court’s fall docket have the potential to become watershed moments in the history of the LGBT movement.

Depending on what the justices do over the next several weeks, marriage equality may soon be restored in California, the Court may be on its way to striking down a destructive and discriminatory law that denies federal benefits to every married same-sex couple in America, and an important precedent about same-sex domestic partners could be set.

So here’s a breakdown of what to expect.

The Supreme Court Conference

First, some background: The Supreme Court is not required to accept all the cases it is asked to review. In fact, it rarely accepts more than 100 or so of the thousands of cases it is asked to hear each year. The justices hold a conference several times a month at which they vote on whether or not to accept cases that they have been asked to review.

If they take a case, they set the case for argument within a few months and generally issue their decision no later than the last day of the term, in June. If they do not accept a case, the decision of the lower court stands and becomes the final ruling in the case. The justices also have the option to postpone deciding whether to take a case and consider it at a later conference.

On Monday, Sept. 24, the justices will hold their first conference of the new term. It’s a lengthy agenda, given that it includes all the cases that the Court has been asked to review since they held their last conference before the summer break.

The Cases

Three of this year’s potential landmark LGBT equality cases are on that Sept. 24 agenda. The first is the decision of the Ninth Circuit court of appeals earlier this year to uphold Judge Vaughn Walker’s 2010 ruling striking down California’s Proposition 8, which banned marriage for same-sex couples in that state.

The second is a decision from the U.S. District Court in New York striking down Section 3 of the so-called Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing the legal marriages of same-sex couples for any purpose, such as Social Security spousal benefits. The Court has also been asked to review three other challenges to DOMA, and those cases will be on the Court’s conference calendar in the coming weeks.

The third is another Ninth Circuit ruling, which said that an Arizona law that stripped domestic partner benefits from state employees is very likely unconstitutional, so Governor Jan Brewer cannot enforce the ban on benefits until the federal courts issue a final decision in the case.

What Could Happen

The justices’ conference is completely secret. No one is ever told how any justice voted, except in rare cases where a justice writes a public dissent expressing disagreement with the Court’s decision to turn down a case. The public does not find out whether the Court decided to take a case until it issues an order either granting or denying review.

If the Court decides on Monday to take any of the three LGBT rights cases on the calendar that day, it could announce as early as Tuesday morning that they have been accepted, and those cases will then be on their way to a Supreme Court decision by June 2013.

Most observers (including me) think it’s very likely that the Supreme Court will take at least one of the DOMA cases that are up for consideration over the next few weeks. With the Prop 8 and Arizona cases, it’s more likely that the justices will let the lower court rulings stand.

What It Means

OK, I know what you’re thinking now: Come next Tuesday, if the Supreme Court hasn’t decided to take the Prop 8 case, it’s over, and marriage will be legal again in California. Time to celebrate!

Well, not quite. Keep that champagne corked for just a little bit longer.

There’s a confusing twist here. The Court usually releases the list of cases in which it has denied review at 10 a.m. on the Monday following the conference. Normally, conferences are held on Fridays, so there’s not much of a delay, and we find out on the same day which cases have been accepted, which cases have been declined, and which ones are being held over for a later conference.

But this first conference after the summer is being held on a Monday. That means that although we could know as early as Sept. 25 which cases were accepted, we will have no idea until Monday, Oct. 1, whether the remaining cases have been turned down, or whether they have been rescheduled for consideration at a later conference.

Translation: If the Court announces next week that it is accepting some of the cases from Monday’s conference, but the three LGBT equality cases do not appear on that list, we will still know precisely nothing about whether the Supreme Court is going to take them. We will not find out until Oct. 1 whether the justices have voted to turn down any of the LGBT cases, or whether the Court is still considering whether to take them.

It’s entirely possible that the Court could decide to hold off considering any of these cases until a later conference — possibly so that they can be considered at the same time as the other DOMA cases.

I know your next question, too: So what about Oct. 1? If the Court denies review of the Prop 8 case, is the case over? Can same-sex couples once again marry in California?

The answer is yes, but probably not for several days. Once the Supreme Court denies review, the case goes back to the court of appeals. The court of appeals’ decision does not go into effect until it issues the “mandate,” a document saying that the case is over. That would likely happen within several days after the Supreme Court’s ruling.

Hopefully, more information will be available soon from state and county officials about when exactly they plan to start issuing marriage licenses if the Supreme Court does not take the Prop 8 case.

Bottom line: There’s no need to start chilling the champagne until Oct. 1, and even then, you might have to keep it on ice for a while.

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15 more reader comments:

  1. What can you expect, I am willing to bet as sadly as it is that the supreme court is going to kill anything that allows gays and lesbians to have right like said straights do. Our government is composed of people who were kids when blacks were still trying to get equality, does this mean they are all like that, of course not however as I said in many post on LGBTQ, our government is two generations behind in thinking.

    Posted on Sunday, September 23, 2012 at 12:49pm
  2. I like the way you think Patrick, however; we still need to keep things moving forward. Also, as we continue to have more allies, our numbers continue to grow. Change is moving forward, each of us can help.

    Posted on Sunday, September 23, 2012 at 12:56pm
  3. I hope most will stand on priciple and do right by us although some like Thomas and Scalia will probably always stand against us.

    Posted on Sunday, September 23, 2012 at 1:01pm
  4. Don’t get me wrong Julio, I am not gay myself but I believe we must fight for the rights of all otherwise the US we should know is not anymore however I still do stand by as sadly as I said before, the status quo. They simply will not budge because they will justify it as god and not their personal choice. The only logical argument against gay and lesbian marriage is they cannot produce offspring however this argument in this current time is invaded because it is not like the human race is reduce to a million people left.

    Posted on Sunday, September 23, 2012 at 2:24pm
  5. You are right Patrick, we need to continue to remind our political leaders about all of their citizens. We cannot let them focus on personal views, religious perspectives or what the right definition of family. We need to hold them accountable to do the right thing. Every voice counts and matters. We build the society we want one person at a time.

    Posted on Sunday, September 23, 2012 at 2:48pm
  6. It is dumb because I do not know how these stupid fuck do not realize that they are put into power to think what is best for the nation as a whole and not necessarily the best of their views. In fact our government has said time and time again that the Bill of Rights in our nations high laws that cannot be challenged so I naturally attack anything they move on that moves against it. Gay marriage is one of them but no the only one.

    Posted on Sunday, September 23, 2012 at 3:07pm
  7. It’s in my opinion that we need to clean out the old school folks and get people who are moving with the times. And by moving with the times, I mean people who aren’t idiotic bigots with a personal agenda that benefits their small-minded vision of the world. Separation my behind. It shouldn’t be up to these squares anyways. It should be up to the people who want to marry.

    Posted on Sunday, September 23, 2012 at 8:47pm
  8. It’s in my opinion that we need to clean out the old school folks and get people who are moving with the times. And by moving with the times, I mean people who aren’t idiotic bigots with a personal agenda that benefits their small-minded vision of the world. Separation my behind. It shouldn’t be up to these squares anyways. It should be up to the people who want to marry.

    Posted on Sunday, September 23, 2012 at 8:47pm
  9. Guys! As we know some of transgender people are educated and have graduated from University. And, instead of flirting and sex talks only, would you like please share job vacancy toward transgender? It would be a useful and productive. Thanks for your support guys, because this may be a great step for them. Let me know yah, and will re-share. :-) Have a nice day.

    Posted on Monday, September 24, 2012 at 2:27am
  10. In respect, I ask this question to Nissen Aaron, isn’t the ‘gay agenda’ something that could be classified as something run by “idiotic bigots with a personal agenda that benefits the small-minded vision of the world”? At least, the homosexual world? It is so easy to condemn others, to apply labels to them and then to turn around and cry “foul” when a label is applied to that one. The majority of the world is ‘straight’, that doesn’t make them small minded. It makes them the ones who are not looking to insert their agenda into what has been considered cultural norms for thousands of years.

    Posted on Monday, September 24, 2012 at 8:19am
  11. Let me tell you of One Who was labeled a liar, demon-possessed, a glutton and a wine-bibber, all of these labels applied to Him falsely by people who hated Him for standing up for Truth, the Lord Jesus. He knew each and everyone of us was and is a sinner and because of this, we would all suffer eternal condemnation. He never wanted nor intended that for us after all, we were made by Him and His Father in Their image!! Jesus came, in obedience to His Father, to show us the right way to live, to teach us about the Father, to suffer for our sins and to die and rise from the dead, to give us eternal hope. All sinners, which each and everyone of us is, who place our faith in Him and His finished work on the cross may die, but it is not eternal death, total cessation of consciousness, it is a short time (in the span of eternity) of our souls being separated from our bodies. The time is coming, and very soon from the looks of things, when He will return, raise those who died in faith to Him and change all the faithful, giving us all glorified bodies that will never suffer injury, disease, age or death, and take us for a time to heaven. The 7 years that we are all in heaven with Him will be a time of disease, natural disasters, famine and war here on earth. As much as 2/3 of the population of the earth will die over the period of 7 years, most in their sins and unbelief, and their souls will go to heaven or hell, depending on what they did with Jesus in life! The same is true today, salvation is in Jesus alone, die without Him and you won’t go into heaven or a state of non-existence, you will find your soul in hell and once there, there is no hope for redemption or escape. A burning lake of fire is all you will know for eternity. Please don’t let this be you. Call on the Holy Name of Jesus for salvation now, while there is time.

    Posted on Monday, September 24, 2012 at 8:30am
  12. well, Faith…by your version of “just leave well enough alone” Women would still have no rights and we’d still have slavery in the USA. “Cultural norms” change because like it or not, the world has evolved. I believe in God, but your whole second diatribe just lost me. You and the rest of the “Cafeteria Chrsitians” have brass balls picking and choosing which parts of the Bible are important. Go out and help the poor, or picket mixed fibers or divorce for a while. The Evangelical Right is getting played for fools by the GOP.Throwing money at candidates that say they want us all to “put God back in our lives” but dont want to help the ones that need the help the most in our own backyards? I’ll take my chances at the trip to the burning lake. I believe God made me and loves me and knows my love is better than your hate. Maybe you’ll find yourself on the same bus to Hell you’re so sure I’m going to be on. Meanwhile, in this world, I will stand up and rally for ” Equality for all”….not accept your “leave well enough alone” cop out! Down with DOMA in 2012!!!

    Posted on Monday, September 24, 2012 at 10:41am
  13. p.s. Faith….why the heck are you on a LGBT website anyway? Are you trying to do the whole brave martyr “sheep among wolves” bit? Is this what God asks you to do with your time? isn’t there a soup kitchen that could use your help serving right now instead of hitting gay websites and launching into teaching us “the right way?” …Good grief…talk about ramming things down someone’s throat!? EQUALITY= AGENDA that gets rammed/jammed/slammed down “everyone’s throat” but people that knock on doors and post on websites of groups they dont agree with = “God’s work” ?!?! Arrgghh!

    Posted on Monday, September 24, 2012 at 11:03am
  14. Faith, they are restricting rights in a country that is built on the ideal that it is a free nation. Freedom – by definition – is self-ownership – the condition of being free of restraints. The cultural “norm” of heterosexual couples is to allow them a freedom that is not allowed to those who are homosexual or outside that “norm.” Why is it we can’t have separation of church and state? Time and time again we see the two go hand-in-hand together and how instead of exercising it as a freedom, it is used to repress others and restrict theirs due to belief? I’m simply disappointed in seeing hypocrisy walk among us and allowed as the “norm”. We are supposed to have the right to pursue happiness, so why is it only certain people can and others can’t?

    Posted on Monday, September 24, 2012 at 11:13am
  15. Matthew 19:11&12 Jesus said gays are born that way out of their mothers womb. Therefore gay marriage is a God given unalienable civil right

    Posted on Monday, September 24, 2012 at 3:05pm