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Kennedy vote seems key to Supreme Court redistricting cases

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Justice Anthony Kennedy appears to hold the decisive vote in two Supreme Court cases involving challenges from African-American voters to electoral districts in North Carolina and Virginia.

The court’s liberal and conservative justices seemed otherwise divided after arguments this week about whether race played too large a role in creation of congressional districts in North Carolina and state legislative districts in Virginia.

The issue of race and redistricting one is a familiar one at the Supreme Court. States have to take race into account when drawing maps for legislative, congressional and a host of municipal political districts. At the same time, race can’t be the predominant factor, under a line of high court cases stretching back 20 years.

Kennedy said he had problems with a lower court’s reasoning in upholding 12 districts in Virginia, suggesting there could be a majority for throwing out that decision. He had less to say about the two North Carolina congressional districts, which were struck down by a lower court.

The arguments demonstrated the difficulty in distinguishing racial and partisan motivations, when African-Americans overwhelmingly vote for Democrats.

The justices soon could be asked to decide whether the Constitution also prohibits electoral maps that are too partisan, in a case from Wisconsin.

Justices on both sides of the divide voiced a certain fatigue with the issue. Justice Samuel Alito suggested states are being held to an impossible standard that is “just an invitation for litigation in every one of these instances.”

Justice Stephen Breyer said he had hoped his majority opinion in a case from Alabama “would end these cases in this court, which it certainly doesn’t seem to have done.” Breyer said lawmakers could not take not a “mechanically numerical” approach to redistricting.

In Virginia, lawmakers in 2011 used the results of the 2010 census to create 12 districts in which African-Americans made up at least 55 percent of the population of eligible voters, saying that level was necessary to ensure they could elect their candidate of choice. Black voters who sued contended lawmakers packed the districts with black voters, making other districts whiter and more Republican. The effect was to dilute black voting strength, they said.

Arguing for the Virginia challengers, attorney Marc Elias said the lower court was wrong to uphold a “one size fits all” standard regardless of the different voting patterns and demographics across the 12 districts.

He drew support from Justice Elena Kagan. “It sort of defies belief you could pick a number and say that applies with respect to every majority-minority district,” Kagan said.

Paul Clement, representing Virginia, said 55 percent actually is a reasonable number for all 12 districts. “So it’s not like this number comes out of thin air,” Clement said.

Nine of the 12 districts had greater black populations under the plan in effect before the 2010 census, and two others were at least 53 percent black.

Chief Justice John Roberts, who appeared to favor the state, questioned whether it is so easy to determine the most important reason for drawing a district a particular way when there are several considerations about its geographic size and shape, as well as the interests that unite its residents. “It’s easy to imagine situations where you cannot say that one dominates over all the others.”

The North Carolina case seemed to present more of a puzzle to the court. The lower court struck down two majority-black congressional districts, finding they relied too heavily on race.

The state, also represented by Clement, conceded the use of race in one district, but only to maintain a black-majority district. In the other, Clement said, race played no role at all in the creation of one district. “This was an avowedly political draw,” he said, meaning that Republicans who controlled the redistricting process wanted to leave the district in Democratic hands, so that the surrounding districts would be safer for Republicans.

Clement also suggested that the challenges in both cases were motivated more by Democratic politics than concerns about race.

Kennedy’s votes in redistricting cases can be hard to predict. He joined Breyer’s opinion in the Alabama case last year. In 2013, Kennedy sided with more conservative justices to effectively block a key component of the landmark Voting Rights Act that led to the election of African-Americans across the South. Its provisions requiring states to create and preserve districts in which minority voting groups can elect their candidate of choice remain in effect.

In North Carolina, the federal court also struck down some state House and Senate districts, and last week, those judges ordered new districts drawn and special elections held next year.

North Carolina Republicans have used the current districts to achieve veto-proof majorities in both chambers. In addition, they hold 10 of the state’s 13 congressional seats. By contrast, statewide contests suggest a narrower gap between the parties. Two Republicans won statewide elections last month, President-elect Donald Trump with just under 50 percent of the vote and Sen. Richard Burr with 51 percent. Republican Gov. Pat McCrory on Monday conceded defeat in his closely fought bid for another term.

Decisions in Bethune-Hill v. Virginia State Board of Elections, 15-680, and McCrory v. Harris, 15-1262, are expected by early summer.

LGBT, News, Progressive

Recollections from the battle for marriage equality

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In 2004, when Massachusetts became the first state to allow same-sex couples to marry, President George W. Bush declared support for a constitutional amendment “to protect the institution of marriage.” Voters in 13 states changed their constitutions to define marriage as the union of a man and a woman. In most of those states, the vote wasn’t even close.

Eleven years later, the Supreme Court has now ruled that all those gay marriage bans must fall and same-sex couples have the same right to marry under the Constitution as everyone else. “No longer may this liberty be denied to them,” Justice Anthony Kennedy said in his June 26 opinion for the court.

The opinion builds on the three earlier Kennedy opinions in favor of gay rights dating to 1996, but also on the legal fights that same-sex couples undertook over more than 40 years. There were key victories and losses, starting with a case from Minnesota in 1972.

Recollections from some participants in the fight:

> Jack Baker can claim to be among the first to predict publicly that gay rights advocates would win the marriage fight, back when most in the country could not envision the idea.

“I am convinced that same-sex marriage will be legalized in the United States,” Baker told a group of lawyers on Oct. 21, 1971, as quoted in the St. Paul (Minn.) Pioneer Press.

Baker, a retired lawyer, and Michael McConnell, a retired librarian, have been together since 1967.

Baker explained his certainty to The Associated Press in 2011: “The outcome was never in doubt, because the conclusion was intuitively obvious to a first-year law student.”

It wasn’t so obvious to county officials in Minneapolis, state judges or the Supreme Court. Homosexuality was still defined as a mental disorder and gay couples couldn’t marry anywhere in the world.

Baker and Michael McConnell tried and failed to get a license at Hennepin County courthouse in Minneapolis on May 18, 1970. After Minnesota’s top court upheld the refusal of county officials to issue a marriage license to two men, Baker and McConnell appealed to the Supreme Court.

The justices’ first brush with same-sex marriage was brief and desultory. In October 1972, the court declined to hear arguments in Baker v. Nelson. The justices took just one sentence to turn away the case “for want of a substantial federal question.”

That curt rejection remained on the books for nearly 43 years, until June 26. “Baker v. Nelson must be and now is overruled,” Kennedy wrote.

> Steven Levinson was a new addition to Hawaii’s Supreme Court in 1992 when that court heard the case of three same-sex couples challenging the state’s marriage prohibition. In May 1993, he was the author of the court’s ruling that said denying marriage licenses to same-sex couples was sex discrimination. “People were not prohibited from getting married,” Levinson said. “It was just that they had to marry someone of the opposite sex.”

He wasn’t expecting much of a reaction. “I naively assumed it was going to be the law of the land at least in the state of Hawaii forthwith,” he said. “Then all hell broke loose.”

The reaction from opponents of same-sex marriage was swift. Within three years, a bipartisan majority in Congress passed and President Bill Clinton signed the federal Defense of Marriage Act, barring federal recognition of gay and lesbian marriages and bolstering states in their refusal to recognize same-sex marriages from elsewhere.

In Hawaii, lawmakers passed a bill banning same-sex marriage and voters amended the constitution to say that the decision rested with the Legislature. Same-sex marriage didn’t become legal in Hawaii until 2013.

But the 1993 court decision was a huge step, even with the setbacks that followed, said Evan Wolfson, founder and president of the pro-gay-marriage group Freedom to Marry.

“If you had to pick one thing that was the turning point, to me it was Hawaii because the Hawaii case really was the first time we were able to get our day in court,” Wolfson said. “In the ‘70s, they all had been rubber-stamped away.”

Levinson remained on the court for 15 more years, but he said the story took a personal turn a year and a half after the ruling. “My daughter came out of the closet,” he said.

Levinson, 69, now serves on the board of the American Civil Liberties Union in Hawaii and officiated at his 36th same-sex wedding on July 4.

>

By the middle of November 2003, Julie and Hillary Goodridge were getting tired of checking the website of the highest court in Massachusetts day after day in a vain search for a decision in their court case.

Then on Nov. 18 the Supreme Judicial Court said same-sex couples had a right to marry under the state constitution. “It forbids the creation of second-class citizens,” Chief Justice Margaret Marshall wrote for the court.

The Goodridges already had been together for 16 years and were raising their daughter, Annie, then in elementary school.

“We had no idea we were going to win,” Julie Goodridge said. “We had lost in the lower courts. When we realized we had won, it was just crazy.”

Gov. Mitt Romney and other state officials denounced the ruling and promised to put a measure before voters to change the constitution to forbid same-sex marriage.

The Goodridges had to wait six more months to get married. In that time, officials began issuing marriage licenses in San Francisco and New Paltz, New York.

The 2004 election campaigns also were in full swing and President George W. Bush announced his support for a constitutional marriage amendment. State lawmakers began adding measures to make similar changes to state constitutions.

Marriages in Massachusetts began on May 17, 2004, the 50th anniversary of the Supreme Court’s seminal civil rights ruling in Brown v. Board of Education.

By year’s end, though, with Bush re-elected and 13 state constitutions changed, recriminations were flying.

“There were people who were very upset who said, ‘Look what you did,”” Hillary Goodridge said. “But I never doubted what we did or the timing.”

She chalked up the marriage amendments to “the last gasp of dinosaurs.”

Five years after they married, Julie and Hillary Goodridge divorced. Being able to end their marriage under state law “gave us a framework to unravel a 22-year relationship,” Julie Goodridge said. “It happened. We did it and we did it really, really well.”

> New York seems an odd place for a fight over gay marriage.

“We are the place where some people think the modern gay rights movement began at the Stonewall Inn,” said Susan Sommer, director of constitutional litigation for Lambda Legal, a gay rights legal advocacy group. She was referring to the gay bar where patrons stood up to a police raid in 1969, emboldening New York City’s large gay culture in years that followed. “Yet our state isn’t necessarily politically where parts of our state are culturally,” she said.

In 2006, New York’s highest appellate court upheld the state’s gay-marriage ban. Lawmakers, not judges, get to decide whether same-sex couples can marry, the state Court of Appeals said. The decision led to a drawn-out political fight that took five more years before same-sex marriage became the law in New York.

But along the way, Sommer said, New York courts did provide for recognition of same-sex marriages from elsewhere. That recognition was the basis for a lawsuit by an elderly New Yorker who objected to her $363,000 federal estate-tax bill after her partner of 44 years died in 2009. Edie Windsor married Thea Spyer in Canada in 2007 after doctors told them that Spyer would not live much longer. Spyer left everything she had to Windsor.

There is no dispute that if Windsor had been married to a man, the tax bill would have been zero.

The Supreme Court chose Windsor’s case to consider striking down part of the 1996 federal anti-gay marriage law that prevented people such as Windsor from receiving benefits given to other couples with valid marriages.

Kennedy’s opinion in favor of Windsor in June 2013 became the basis for the wave of federal court rulings that struck down state marriage bans and led to last month’s ruling.

> The other case that made its way to the Supreme Court the same time as Windsor’s was a dispute over California’s Proposition 8 that voters approved in 2008. Prop 8 halted same-sex marriage in its tracks in the largest state.

The justices could have used the California case to settle the same-sex marriage issue, but declined to do so, in part because only about a dozen states allowed same-sex couples to marry at the time. The Supreme Court restored same-sex marriage to California in a ruling that served another purpose as well, said Kris Perry, one of the plaintiffs.

Republican lawyer Ted Olson teamed with Democrat David Boies to represent the California couples who sought the right to marry. Olson was previously known for his advocacy — defeating Boies —on behalf of Bush in the 2000 presidential election dispute at the Supreme Court and as Bush’s top Supreme Court lawyer in the president’s first term.

Olson’s decision to fight for same-sex marriage “signaled a major turning point to the public and was hugely instrumental in public acceptance of the issue,” Perry said.

Now living in Washington, Perry was outside the court after the decision came down in the June gay marriage case, known as Obergefell v. Hodges.

She saw James Obergefell, the Cincinnati man whose fight for legal recognition of his marriage to his late husband, John Arthur, made him the lead plaintiff in the case.

“We felt like we had been on a relay team and he was running the final lap,” she said. “We had that baton. We ran a lap with it. It was wonderful to have been any part of it at all.”

News, Viral

Historic Day: Supreme Court hears marriage equality cases

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UPDATED: Two years ago, Justice Anthony Kennedy left little doubt during Supreme Court arguments that a part of the federal anti-gay marriage law was doomed.

When the justices heard arguments on April 28 in a broader case about the right of same-sex couples to marry anywhere in the United States, the 78-year-old Kennedy’s comments were less clear-cut and his potentially decisive vote less certain than it was two years ago.

He left people on both sides of the issue with hopes and fears about the outcome in the landmark civil rights case, although Kennedy’s track record as the author of the court’s three earlier rulings in favor of gay rights probably gives same-sex marriage supporters less to fear.

Kennedy’s role as the often-pivotal vote on the court was reinforced by the apparent deep divide between the court’s liberal and conservative justices over whether the Constitution gives same-sex couples the right to marry. Those couples can do so now in 36 states and the District of Columbia, and the court is weighing whether gay and lesbian unions should be allowed in all 50 states.

The drama played out in the packed, grand courtroom with its 44-foot ceiling, marble columns and mahogany bench. Kennedy’s wife, as well as those of Chief Justice John Roberts and Justice Stephen Breyer watched the arguments along with many of the plaintiffs whose cases were before the court. Also in the crowd was Rives Miller Grogan, who briefly interrupted the proceedings after about 30 minutes with an anti-gay harangue that warned gay marriage supporters they would “burn in hell.” Supreme Court police officers quickly removed Grogan from the courtroom.

As advocates and protesters demonstrated outside, Kennedy worried about changing the definition of marriage from the union of a man and a woman, a meaning that he said has existed for “millennia-plus time.”

“It’s very difficult for the court to say `We know better'” after barely a decade of experience with same-sex marriage in the United States, Kennedy told Mary Bonauto, a lawyer representing same-sex couples.

But he also talked about the touchstones of dignity and concern for children in same-sex households that drove his earlier opinions. “Same-sex couples say, of course, `We understand the nobility and the sacredness of marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled,'” Kennedy said in an exchange with lawyer John Bursch, who was defending the state marriage bans.

Later, Kennedy also seemed concerned about adopted children in same-sex households if only one partner is considered a parent. “Under your view, it would be very difficult for same-sex couples to adopt those children,” Kennedy said.

Kennedy’s first question to Bonauto suggested to same-sex marriage opponent Ryan Anderson that his mind is not made up. “The first question out of Justice Kennedy was, do you want to throw away a millennia-old definition of marriage for 10 years of same-sex marriage. He was asking questions that I think are a good sign,” said Anderson, a senior research fellow at the conservative Heritage Foundation.

But Brian Fitzpatrick, a Vanderbilt University law professor who once served as a law clerk to Justice Antonin Scalia, said Kennedy’s questioning seemed more favorable to same-sex marriage supporters, even with his early focus on the definition of marriage. “He did want an answer to why we should change it after 10 years of experience. I think he answered that question himself when he talked about dignity and concern for the children,” Fitzpatrick said.

Another sign that could point to the same outcome was Kennedy’s relative lack of interest in the second issue that was argued Tuesday, whether states have to recognize same-sex marriages from elsewhere, said Thomas Goldstein, a veteran Supreme Court lawyer and publisher of Scotusblog. That’s because the answer to the recognition question is unimportant if the court says same-sex couples can marry everywhere, Goldstein said.

The Washington lawyer who argued the 2003 case in which the court struck down state sodomy bans offered a reminder that argument sessions don’t always give a clear picture of where a justice stands. The lawyer, Paul Smith recalled that Kennedy was “very quiet and hard to read” in the 2003 case of Lawrence v. Texas. Kennedy wrote the court’s opinion in that case.

“Today I thought his questions overall showed he is leaning our way. He clearly wasn’t convinced of the state interest being offered by Michigan,” Smith said.

The justices will meet in private on Friday to take a preliminary vote on the issues and assign opinions. If Kennedy is with the liberal justices in a five-justice majority, he would decide who gets to write it because he would be the senior justice in the majority. Kennedy kept the opinion for himself two years ago and almost certainly would do so again.

If Roberts is in the majority, he would assign the opinion. 

Outside the Court

People on both sides of the issue gathered outside the marble courthouse early on April 28. Some waved gay rights banners, while others carried placards proclaiming marriage as the union of a man and a woman.

“Homo sex is a sin,” read one sign. A man shouted into a microphone that gays violate the laws of God. A group of same-sex advocates tried to drown him out by singing “The Star-Spangled Banner.”

Cheers went up in the crowd when the court’s doors opened, allowing a lucky few who lined up days ago to get inside.

“Today is a historic day for countless loving couples and for all Americans who cherish those words on the top of the Supreme Court — ‘equal justice under law,'” sad Chad Griffin, president of the Human Rights Campaign, the nation’s largest LGBT civil rights group.”

James Esseks, director of the ACLU’s LGBT and HIV Project, said before the hearing, “The Supreme Court, like more than 50 courts that have ruled in favor of marriage equality since DOMA was struck down in 2013, should recognize that the time has come to make full marriage equality the law of the land.”

Only 11 states have granted marriage rights to same-sex couples through the ballot or the legislature. Court rulings are responsible for all the others.

A decision from the high court is expected in late June.

After the hearing, Shannon Minter of the National Center for Lesbian Rights said, “Only the Supreme Court can resolve this conflict and affirm that the Constitution guarantees all Americans the freedom to marry and to have their marriages respected regardless of whether they live.”

For the record …

U.S. Rep. Mark Pocan, D-Madison, said after the Supreme Court hearing: “Today, the U.S. Supreme Court is taking the first steps to putting an end to the debate over same-sex marriage once and for all.  I am hopeful and optimistic that the Court will find every American has the right to equal protection under the law, regardless of who they love.

“Millions of LGBT Americans today still live as second class citizens in states which do not recognize their right to marry and do not have the same legal benefits other Americans enjoy. It’s time our nation ends LGBT discrimination.”

National

Justice Anthony Kennedy denies request from anti-gay group to stop same-sex marriages in California

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Supreme Court Justice Anthony Kennedy has denied a request from Proposition 8 supporters in California to halt the issuance of same-sex marriage licenses in the nation’s most populous state.

Kennedy turned away the request today with no additional comment.

Same-sex marriage opponents asked him to step in on Saturday, a day after the federal appeals court in San Francisco allowed same-sex marriages to go forward. Numerous weddings were performed at San Francisco City Hall following the court decisions.

Attorneys with the Arizona-based Alliance Defending Freedom claim in the petition that the 9th U.S. Circuit Court of Appeals acted prematurely and unfairly on Friday when it allowed gay marriage to resume by lifting a hold that had been placed on same-sex unions. The anti-gay group said the appeals court had acted about three weeks too soon.

“The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay…is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment,” the paperwork states. “Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.”

The motion was filed as dozens of couples in jeans, shorts, white dresses and the occasional military uniform filled San Francisco City Hall on Saturday to obtain marriage licenses. On Friday, 81 same sex couples received marriage licenses.

Although a few clerk’s offices around the state stayed open late on Friday, San Francisco, which is holding its annual gay Pride celebration this weekend, was the only jurisdiction to hold weekend hours so that same sex couples could take advantage of their newly restored right, Clerk Karen Hong said.

A sign posted on the door of the office where a long line of couples waited to fill out applications listed the price for a license, a ceremony or both above the words “Equality(equals)Priceless.”

“We really wanted to make this happen,” Hong said, adding that her whole staff and a group of volunteers came into work without having to be asked. “It’s spontaneous, which is great in its own way.”

The timing couldn’t have been better for California National Guard Capt. Michael Potoczniak, 38, and his partner of 10 years, Todd Saunders, 47, of El Cerrito.

Potoczniak, who joined the Guard after the military’s ban on openly gay service was repealed almost two years ago, was scheduled to fly out Sunday night for a month of basic training in Texas.

“I woke up this morning, shook him awake and said, `Let’s go,'” said Potoczniak, who chose to get married in his Army uniform. “It’s something that people need to see because everyone is so used to uniforms at military weddings.”

The U.S. Supreme Court ruled on Wednesday that Proposition 8’s backers lacked standing to defend the 2008 law because California’s governor and attorney general have declined to defend the ban.

Then on Friday, the 9th Circuit appeared to have removed the last obstacle to making same sex matrimony legal again in California when it removed its hold on a lower court’s 2010 order directing state officials to stop enforcing the ban.

Within hours, same sex couples were seeking marriage licenses. The two couples who sued to overturn Proposition 8 were wed in San Francisco and Los Angeles Friday.

Alliance Defending Freedom Senior Counsel Austin Nimocks said on Saturday that the Supreme Court’s consideration of the case isn’t done because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.

Under Supreme Court rules, the losing side in a legal dispute has 25 days to request a rehearing. While such requests are almost never granted, the high court said that it wouldn’t finalize its judgment in the case at least until after that waiting period elapsed.

The San Francisco-based appeals court had said when it imposed the stay that it would remain in place until the Supreme Court issued its final disposition, according to Nimocks.

“Everyone on all sides of the marriage debate should agree that the legal process must be followed,” he said. “On Friday, the 9th Circuit acted contrary to its own order without explanation.”

Many legal experts who had anticipated such a last-ditch effort by gay marriage opponents said it was unlikely to succeed because the 9th Circuit has independent authority over its own orders – in this case, its 2010 stay.

While the ban’s backers can still ask the Supreme Court for a rehearing, the 25-day waiting period is not binding on lower federal courts, Vikram Amar, a constitutional law professor with the University of California, Davis law school, said.

“As a matter of practice, most lower federal courts wait to act,” Amar said. “But there is nothing that limits them from acting sooner. It was within the 9th Circuit’s power to do what it did.”

Also waiting to wed Saturday were Scott Kehoe, 34, and his fiance, Aurelien Bricker, 24. After finding out on Facebook that the city was issuing same sex marriage licenses Friday, the San Francisco couple rushed out to Tiffany’s to buy wedding rings.

“We were afraid of further legal challenges in the state,” Kehoe said.

The city, home to both a federal trial court that struck down Proposition 8 as unconstitutional and the 9th Circuit, has been the epicenter of the state’s gay marriage movement since then-Mayor Gavin Newsom ordered his administration in February 2004 to issue licenses to gay couples in defiance of state law.

A little more than four years later, the California Supreme Court, which is also based in San Francisco, struck down the state’s one-man, one-woman marriage laws.

City Hall was the scene of many more marriages in the 4 1/2 months before a coalition of religious conservative groups successfully campaigned for the November 2008 passage of Proposition 8, which amended the state constitution to outlaw same sex marriages.

Standing amid the beaming couples on Saturday, John Lewis and Stuart Gaffney of the advocacy group Marriage Equality USA looked like proud fathers. The men have been together 26 years, got married in February 2004, had their union invalidated six months later and then became one of the 18,000 couples estimated to have tied the knot in California before Proposition 8 was enacted.

“I don’t think getting a license means as much to anyone who hasn’t worked so long for it and fought so hard for it,” Gaffney said. “It’s been a very long engagement.”

Proposition 8 supporters could continue their efforts to try halting same-sex marriages by filing their request with another Supreme Court justice.

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National

Judgment on marriage equality | What’s happened, what to watch for, what to expect as the Supreme Court prepares to rule

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The U.S. Supreme Court is expected to issue opinions in two cases this month that – in the best possible outcome – could clear the way for same-sex couples to marry throughout the United States, thus allowing those couples to access more than 1,100 federal benefits associated with marriage.

The justices in March heard arguments in challenges to California’s Proposition 8, the state’s voter-approved constitutional amendment defining marriage as the union of a man and a woman, and to the U.S. Defense of Marriage Act, which defines marriage as the union of a man and a woman for federal purposes.

WiG looks at the cases, the issues, the court, the potential outcomes and the history of the pursuit of marriage equality.

In the beginning

ALOHA FIGHT: Gay civil rights activists have fought for the freedom to marry since before the term “gay” was in wide use. But the push became better organized and more prominent in the mid-1990s, particularly in Hawaii, which was then expected to become the first state to legalize same-sex marriage.

Instead, the push for equality spawned the reinvigoration of the Christian right, leading to the federal Defense of Marriage Act (DOMA) and a rash of legislation and state constitutional amendments defining marriage as the union of a man and a woman.

EVOLUTIONARY: In 2004, Massachusetts became the first state to legalize same-sex marriage. The number of marriage equality states has increased to 12, as well as the District of Columbia. At first the progress was slow, but the pace in recent years has picked up. Last year, three states legalized same-sex marriage and, in May, three more states – Delaware, Rhode Island and Minnesota – did so.

REVOLUTIONARY: In 1996, when DOMA passed, 27 percent of Americans thought same-sex marriage should be legal. The numbers have changed dramatically over the years: 1999, 35 percent; 2005, 37 percent; 2007, 46 percent; 2009, 40 percent; 2011, 46 percent; 2013, 53 percent.

U.S. Defense of Marriage Act

DOMA: The 104th Congress overwhelmingly passed the Defense of Marriage Act and President Bill Clinton signed the measure into law in 1996. DOMA contains two basic provisions – one allows states to refuse to recognize same-sex marriages from other states and the second prohibits the federal government from recognizing same-sex marriages.

BENEFITS DENIED: More than 1,100 benefits and rights are tied to marriage at the federal level. These benefits, currently denied to married gay and lesbian couples, include Social Security payments to surviving spouses, surviving parent benefits, nearly 200 income tax provisions or deductions, family and medical leave, immigration rights and continued health care coverage.

LAW REVIEW: Judges in Massachusetts, New York and California have declared the federal marriage definition in DOMA unconstitutional. In 2011, the Obama administration’s Justice Department said while it is enforcing the law, it will not defend it in court.

BEFORE THE COURT: U.S. v. Windsor. The case involves 83-year-old Edith Windsor challenging DOMA’s federal marriage definition. Because the government didn’t recognize her same-sex marriage, Windsor paid $363,000 in inheritance taxes after her wife died in 2009. Had her spouse been a man, there would have been no tax. Windsor is represented by a team that includes the American Civil Liberties Union.

DOMA is being defended by House Republicans who hired attorneys using taxpayer money.

CONSTITUTIONAL QUESTION: Does Section 3 of DOMA violate the Fifth Amendment’s guarantee of equal protection as applied to people of the same sex who are legally married in their states.

POSSIBLE OUTCOMES: During oral arguments, justices took an interest in whether House Republicans had legal standing to defend the law and why the Justice Department was not defending DOMA. But at this stage, most legal experts don’t expect the court to simply dismiss the case and leave the lower court ruling – against DOMA – in place. Such a ruling is the first of several possible scenarios. 

In scenario two, the court upholds the federal marriage definition and legally married same-sex couples still will be denied more than 1,100 federal benefits.

In scenario three, the court strikes down DOMA and married same-sex couples have access to federal benefits associated with that legal status. If the majority accepts the Obama administration’s argument that discrimination based on sexual orientation should be unconstitutional, states could have a hard time justifying anti-gay marriage laws.

California Proposition 8

PEOPLE’S VOTE:  After a state supreme court ruling in May 2008, same-sex couples were able to marry in the state for a brief period. Then, in November 2008, California voters approved Proposition 8 and amended their constitution to limit marriage to unions “between a man and a woman.” Catholic and Mormon institutions invested heavily in promoting Prop 8.

LAW REVIEW: Prop 8 has been ruled unconstitutional by a U.S. district court and an appeals court.

BEFORE THE COURT: Hollingsworth v. Perry. The case involves two same-sex couples – Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo – seeking the freedom to marry in California. Attorneys Ted Olson and David Boies with the American Foundation for Equal Rights represent the couples.

Prop 8’s defense is being paid for by proponents of the ballot initiative, because California’s governor and attorney general – the current administration and a prior administration – declined to defend the measure.

CONSTITUTIONAL QUESTION: Does the Equal Protection Clause of the 14th Amendment prohibit California from defining marriage as the union of a man and a woman?

POSSIBLE OUTCOMES: The justices, during oral arguments, showed interest in whether Prop 8 proponents had standing in the case. If not, the court could duck a decision. That’s scenario one, and it likely would mean same-sex marriages would resume in California.

Scenario two is the court upholds Prop 8 and rules same-sex marriage is not a constitutional right. This would mean each state would decide how to treat same-sex couples.

In scenario three, the court rules narrowly and strikes down California’s amendment. Depending on the language in the ruling, such a decision could only affect California or it could affect states with domestic partnership or civil union laws. AFER calls this the “seven-state ruling,” a reference to the seven states that recognize same-sex relationships with full partnership or civil unions but deny marriage rights.

In scenario four – the best scenario for LGBT people in the United States – the court finds that the guarantee of equal protection means gays and lesbians have a right to marry. If the ruling is wide-ranging, every other state marriage ban could be overturned. AFER calls this the “50-state ruling” because same-sex marriage would be legal everywhere.

Scholars, bloggers and lawyers have been debating the scenarios and the possible votes since the High Court took both cases. The one clear consensus is that Justice Anthony Kennedy will be the key fifth vote – or swing vote – on the decision.

On watch

TIME TABLE: The court has finished hearing oral arguments for this term and is expected to recess at the end of the month. Because arguments took place in late March, many court-watchers expect opinions in late June. But there is no advance notice for when a decision may be handed down. 

In Wisconsin 

HEY, PARTNER: A domestic registry law – which faces a right-wing challenge in court – has provided some benefits to same-sex couples since August 2009.

The law was enacted after voters, in November 2006, amended the constitution to define marriage as the union of a man and a woman. 

Wisconsin same-sex couples can marry in neighboring Iowa and soon in Minnesota, but  the state won’t recognize those mariages.

National

Will the Supreme Court justices take note of new laws?

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Three U.S. states and three countries have approved same-sex unions just in the two months since the Supreme Court heard arguments over gay marriage, raising questions about how the developments might affect the justices’ consideration of the issue.

In particular, close observers on both sides of the gay marriage divide are wondering whether Justice Anthony Kennedy’s view could be decisive since he often has been the swing vote on the high court.

“It is always possible that Kennedy is reading the newspapers and is impressed with the progress,” said Michael Klarman, a Harvard University law professor and author of a recent book on the gay marriage fight.

In earlier cases on gay rights and the death penalty, Kennedy has cited the importance of changing practices, both nationally and around the world.

The court is expected to rule by late June in two cases involving same-sex marriage. One is a challenge to California’s voter-approved Proposition 8 that defines marriage as the union of a man and a woman. The other seeks to strike down a portion of the federal Defense of Marriage Act that denies to legally married same-sex couples a range of benefits that generally are available to married heterosexuals.

The justices took an initial vote in the days after hearing arguments in the two cases in late March. The senior justice on the winning side and the senior justice in dissent assigned opinions based on those votes. But while that first vote is important, it is not the end of the process; justices’ assessments of a case can shift subtly or, in some cases, dramatically.

In 1992, Kennedy initially drew the assignment to write a majority opinion for five justices allowing prayers at public school graduations. In the end, he ended up writing the opinion for a different five-justice majority striking down the graduation prayers. According to several accounts, Kennedy simply changed his mind during the writing process.

Current events also can find their way into opinions. Last year, Justice Antonin Scalia’s fiery dissent from a court ruling that watered down Arizona’s crackdown on immigration included a reference to comments President Barack Obama made at a news conference that took place between the argument in the case in April and the announcement of the decision in June.

There is no way to know at this point whether anything similar will happen in the gay marriage cases, either of which could be decided on technical legal grounds that would say little about the court’s view of the issue. But there has been no shortage of action.

In a 10-day span earlier this month, lawmakers in Delaware, Minnesota and Rhode Island gave final approval to bills to legalize same-sex marriages. Minnesota was the last of the three to act, on May 13, and when Gov. Mark Dayton signed the bill into law the following day, Minnesota became the 12th state, plus the District of Columbia, to approve same-sex unions. The other nine are: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.

Internationally, French President Francois Hollande signed a law this month making France the 14th country to recognize gay marriages. Uruguay and New Zealand took similar steps in April.

And further change could come soon. The Illinois Senate has approved a gay marriage bill that now is pending in the state House in advance of the May 31 end of the legislative session. Gov. Pat Quinn has said he would sign it.

In Great Britain, a bill to legalize same-sex weddings in England and Wales easily cleared the House of Commons and will be debated in the House of Lords beginning in July.

Both sides in the high court gay marriage debate say the recent events reinforce arguments they made to the court in March.

Defenders of limiting marriage to heterosexuals say the justices need only look at the change in marriage laws to see that there is no reason for them to step in and declare a national rule in favor of gay marriage that would upend constitutional bans in 30 states and laws prohibiting same-sex unions in roughly half a dozen others.

“These developments provide yet further evidence…that the claim that gays and lesbians are politically powerless and that the courts therefore have some special role in subjecting classifications affecting them to strict scrutiny is baseless,” said Ed Whelan, an opponent of same-sex marriage who is president of the Ethics and Public Policy Center.

Jim Campbell, a lawyer for Alliance Defending Freedom, said the court should not short-circuit a vigorous national debate.

“The vast majority of the states have decided to retain the traditional view of marriage that has existed throughout Western civilization. This decision belongs to the people and should be decided by the people,” Campbell said.

Mary Bonauto, the director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders, said the assessment of the political clout of gays and lesbians is misleading. The number of states allowing same-sex weddings has doubled in less than a year and now represents 18 percent of the U.S. population. If Illinois joins in and the court were to affirm a lower court decision that struck down the California ban, just over a third of the population would live in 14 states and the District of Columbia where gay marriage would be legal.

That’s not nearly enough, especially in the context of a decades-long struggle by gays and lesbians to win the right to marry, Bonauto said. “These states moving in the direction of marriage is a far cry from all states doing it,” she said.

Klarman said gays and lesbians have made huge political strides in “deep blue” Democratic states.

“It is absolutely true that the political process continues to work and it is working with extraordinary rapidity,” he said. By some estimates, in roughly 10 years majorities in all but a handful of Southern states will favor gay marriage.

“The only argument against this position is, what about the gay couple in Mississippi?” Klarman said, pointing to a state where the prohibition on same-sex unions is likely to endure.

The same argument could have been made, and was, during the court’s deliberations over the Brown v. Board of Education case that outlawed segregation in public schools, he said.

Justice Stanley Reed, a Southerner, suggested that the court “let things play themselves out,” although he eventually joined in the unanimous opinion in Brown.

During argument in the California case, Kennedy strongly suggested that he was not about to give gay marriage proponents what they are asking for, a decision that would allow same-sex couples to wed everywhere in the United States.

But Klarman wonders whether Kennedy might consider his legacy and the fact that at 76 years old, he might not be on the court for the next big gay marriage case. “He knows that today, he can write the opinion that would be the Brown of the gay rights movement,” Klarman said.

National

Prominent marriage allies petition court

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Dozens of friend-of-the-court briefs from prominent and popular allies have been submitted in advance of the U.S. Supreme Court oral arguments in two same-sex marriage cases,

The arguments take place March 26-27.

One case involves a challenge to Proposition 8, the California constitutional amendment banning same-sex marriage. The other involves a challenge to the federal Defense of Marriage Act that defines marriage as the union of a man and a woman. The court is expected to release opinions in late June.

The first filings came from opponents of marriage equality, including the National Association of Evangelicals, the Church of Jesus Christ of Latter-Day Saints, Westboro Baptist Church, U.S. Conference of Catholic Bishops, Family Research Council, the Eagle Forum, a group of Republican senators and a coalition of attorneys general from states that ban gay marriage.

But in the final week of the submission storm, amicus briefs calling on the court to overturn Proposition 8 and the federal marriage ban came from varied parties – the president, Democrats, Republicans, NFL players, Hollywood celebrities, corporate America and civil rights leaders.

The Obama administration filed as an LGBT friend in both cases – the brief against DOMA was expected, the brief against Prop 8 was wished for and arrived at the court on deadline Feb. 28.

“The government seeks to vindicate the defining constitutional ideal of equal treatment under the law,” said U.S. Attorney General Eric Holder. “Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our nation as a whole.”

Other friends on marriage equality include:

• More than 200 members of Congress who signed a brief against DOMA. Among the signatories is openly gay U.S. Rep. Mark Pocan, D-Wis., who said, “Having been happily married for more than five years, I look forward to a time when my partner and I will be treated equally to every American in a ‘traditional’ marriage by our government. The march toward full equality is unending, but I am confident we will be able to put this discriminatory relic behind us in the near future.”

• More than 130 Republican leaders who signed a brief against Prop 8, including Mary Bono Mack, Alex Castellanos, James B. Comey, Gary Johnson, Stephen Hadley, Jon Huntsman, James Kolbe, Ken Mehlman, Steve Schmidt, William F. Weld, Christine Todd Whitman, Meg Whitman and Clint Eastwood.

• More than 300 companies signed onto briefs against DOMA and Prop 8. Companies in the Prop 8 brief include Apple, Facebook, Xerox, Verizon, Cisco and Levi Strauss. Employers calling on the court to overturn the federal ban include Google, Starbucks, Amazon and Citigroup.

• NFL players Brendan Ayanbadejo and Chris Kluwe, two high-profile advocates for equality. They wrote, “When we advance the idea that some people should be treated differently because of who they are, demeaned in public as lesser beings, not worthy of the same rights and benefits as others despite their actions as good citizens and neighbors, then we deny them equal protection under the laws. America has walked this path before, and courageous people and the court brought us to the right result. We urge the court to repeat those actions here.”

In anticipation of the historic hearings, activists on both sides are planning demonstrations.

For March 26, the anti-gay National Organization for Marriage is planning a Marriage March. A NOM poster asks, “Do you believe that every child deserves a mom and a dad?” and invites opponents of gay marriage to “be heard. Protect marriage.” 

In late February, the U.S. Conference of Catholic Bishops sent American dioceses a letter urging priests to encourage parishioners to attend or show solidarity for the anti-gay effort.

Meanwhile, longtime gay rights activists David Mixner and Cleve Jones have encouraged a “National Equality Action” outside the court on March 26-27. The activists aren’t proposing a national march, but they are endorsing a gathering. “If you can be in Washington, D.C., there will be peaceful and civil demonstrations of support for the cases at the Supreme Court on March 26 and 27,” they wrote in a joint statement. “While there you can also visit your members of Congress to lobby for the Employment Non-Discrimination Act and Uniting American Families Act as well as marriage equality. Our opponents will also be marching – ignore them.”

The activists also encouraged “peaceful demonstrations for LGBT equality in every city and town across our country at sunset” on March 25.

Wisconsin

Kenosha adopts domestic partner benefits

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The Kenosha Common Council voted 15-0 – with one abstention – to adopt a resolution extending employee health-care benefits to the same-sex partners of city workers.

With that lopsided vote on Dec. 17, Wisconsin’s fourth largest city became the fifth this year to support fairness for its workers. Ald. Chris Schwartz, who spearheaded the resolution, said the benefits should become available during the first quarter of 2013. In order to apply for the benefits, city workers need only show proof of registration under the state’s partner registry law.

The resolution was the first major initiative introduced by Schwartz, who was elected in April to represent Kenosha’s 2nd Aldermanic District. Schwartz is perhaps best known in the city as co-owner of the popular Franks Diner, which is virtually a regional institution. She’s a past president of the Kenosha Downtown Business District.

“As I got my feet wet and got to know the process of becoming the alderperson, I decided this was something I wanted to get done,” Schwartz said. “I was pretty shocked that it went through as seamlessly as possible. I hope that tells us that this is a progressive city that truly believes in equality.”

Rather than “reinvent the wheel,” she said, Schwartz looked at how Racine, Milwaukee County and Dane County had structured their resolutions and emulated them as much as possible.

Despite being new to the process, she presented the resolution with such finesse that not a single witness appeared at the Dec. 17 council meeting to testify against it. Nine out of the common council’s 17 members signed on as co-sponsors.

The only alderperson who failed to support the measure was 8th District Ald. Kevin Mathewson, who abstained from voting rather than cast the sole “no” vote.

Tenth District Ald. Anthony Kennedy, who described himself as Schwartz’s “co-pilot,” said “she approached me some time ago saying, ‘This is what I want to do,’ and I said, ‘It’s about time.’”

Schwartz and Kennedy lined up support from unions representing city workers. At the Dec. 17 council meeting, union officials testified that offering domestic partnership benefits would benefit the city’s ability to attract and retain good personnel.

“All of them (union leaders) saw this as another issue toward helping our productivity,” Kennedy said. “Someone who’s not worrying about their home lives at work is going to do their job better.”

“We spend a lot of money recruiting people to come to our city and work on behalf of our constituents,” Kennedy added. “As municipal leaders, we have a responsibility to provide taxpayers with the best services possible. (Partner benefits) are another tool we have in the tool box to attract high-quality candidates.”

Kennedy’s interest in the resolution was personal in addition to professional: “My mother is gay, and the gay community is probably my first community of refuge and the place where I feel the most comfortable, because some very, very special people in my life happen to be part of the LGBT community,” he explained.

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