Supreme Court yet to schedule marriage cases

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Supreme Court Justice Ruth Bader Ginsburg

Confident San Francisco party planners say the question is when, not whether, same-sex marriages will resume in California.

So a Prop 8 Is Toast celebration is being planned for 5 p.m. at the intersection of Castro and Market streets in San Francisco on the day the U.S. Supreme Court clears the way for marriage equality in the state.

“We will have one heck of a celebration when we win,” said San Franciscan Ryan Kruger, who has been waiting four years to marry his partner in their home state.

Will that day be sometime this fall, with the court announcing that it will not hear oral arguments in the case challenging the legality of Proposition 8, the California constitutional amendment defining marriage as the union of a man and a woman?

Or will that day be sometime in early summer, after the court hears arguments and renders a decision?

The Supreme Court began its 2012-13 term on Sept. 24 with a conference, a weekly meeting at which the justices reviewed cases and decided whether to let a lower court’s ruling stand or to hear arguments.

Those for and against legalizing same-sex marriage eagerly awaited Sept. 25 and the release of a first list of cases the court will consider over the next eight months. About 8,000 cases are filed with the High Court each year but only 70-80 are heard. This year, several cases on the issue are before the court, including the challenge to Proposition 8.

None of the marriage-related cases made the Sept. 25 list of six.

So, plaintiffs and defendants, attorneys and activists, and scores of same-sex couples wait for word from Washington.

Three gay marriage cases currently are before the court — Perry v. Brown, Gill v. OPM and Massachusetts v. HHS.

Perry v. Brown challenges Proposition 8, the ballot initiative that California voters approved in November 2008, halting same-sex marriages in the state. U.S. district and appeals courts have said Prop 8 is unconstitutional.

The proponents of Prop 8 want a final ruling from the Supreme Court, but the attorneys representing the two same-sex couples that serve as plaintiffs asked the court not to take the case – in legal terms, they want the justices to deny a writ of certiorari.

The two other cases – Gill v. OPM and Massachusetts v. HHS – challenge the section of the 1996 U.S. Defense of Marriage Act that bars federal recognition of same-sex marriages, which means that gay couples legally wed in the District of Columbia and six states are denied more than 1,100 federal marriage benefits.

Gay rights victories were won at the appellate level on the cases, with findings that DOMA’s denial of federal recognition to lawfully married same-sex couples violates the U.S. Constitution’s guarantee of equal protection.

Legal experts say the justices may not have acted on Perry, Gill and OPM because either:

• They need more review time;

• They decided to let the lower court rulings stand but have yet to make that announcement; or

• They are waiting for written arguments in three additional challenges to DOMA – Golinski v. OPM from California, Windsor v. United States from New York and Pedersen v. OPM from Connecticut.

If the court decides not to hear Perry and lets the lower court ruling stand, same-sex marriages could resume in California within weeks of that announcement.

If the court takes the Prop 8 case, arguments likely will be heard early in 2013, followed by a decision in late June or early July. The justices could reverse, uphold or even broaden the appeals court ruling.

If the court decides not to hear Gill or OPM, the First Circuit Court of Appeals decisions stand, with impact on Maine, Massachusetts, New Hampshire and Rhode Island.

If the court decides to hear one or both of the cases, the justices could reverse, uphold or broaden the appeals court ruling. The outcome could be the demise of the federal denial of benefits, including Social Security survivor benefits, to married same-sex couples.

If the court decides not to hear Golinski, Windsor or Pedersen, the cases stay with the appeals courts. Arguments in the Windsor case were just heard in late September.

The last major ruling from the High Court on a case specific to LGBT equality was in 2003, when the justices struck down state statutes criminalizing consensual same-sex sex.

At a forum in September, Justice Ruth Bader Ginsburg hinted that the court likely will hear at least one marriage equality case this term when she declined to answer a question about equal protection and sexual orientation.