Along with who will be receiving his mail at 1600 Pennsylvania Ave. come January, one of the most compelling political questions about 2013 is what, if anything, the U.S. Supreme Court will “do” about the volatile and divisive issue of same-sex marriage.

High Court watchers say that the justices were expected to privately discuss marriage equality on Monday past, and at press time for the Florida Agenda there was speculation they could decide as early as yesterday, September 25, as to whether they would take up the constitutional challenge to the Defense of Marriage Act (DOMA), the 1996 federal law that denies financial benefits to gay couples, and possibly a second case relating to California’s Proposition 8.

Although oral arguments and a legal decision by the Supremes wouldn’t be handed down until next year (if at all), the justices are well aware of the political consequences—to both major parties—of even ruminating on the topic six weeks from a presidential election.

The legal “balls” in the air for the court to consider, should they so choose, concern whether the U.S. Constitution’s guarantees of equal protection nullify the California statute, as well as DOMA, which defines marriage as the legal union of one man and one woman.

In New York State, a woman challenged the federal law, saying it selectively and unfairly treats same-gender couples who have been lawfully married in their own states. In a separate but related item, the justices could also decide the constitutionality of Prop. 8.

In the case of the DOMA appeal, Edith Windsor had lived with her partner, Thea Spyer, as a couple in New York since 1967. They married out of state in 2007, at a time when New York State didn’t recognize same-sex marriage. When Spyer died three years ago, she left her estate to Windsor, who was required to pay around $360,000 in federal taxes on the inheritance, because the feds don’t acknowledge her “legal” status—even though New York now permits gay marriage.

Although a federal judge ruled in Windsor’s favor, her attorneys have asked the justices to hear the case now, leapfrogging the standard appeals process. “Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition,” said her lawyer, Roberta Kaplan. “Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime.”

Last spring, a Boston-based federal appeals court struck down a key part of DOMA. The court ruled that the federal government cannot deny benefits to same-sex couples who were married in states where gay marriage is legal.

Enacted in 1996 by a Republican Congress and signed into law by President Bill Clinton, a Democrat, DOMA prohibits federal recognition of marriage equality, and says that states cannot be compelled to recognize such marriages contracted in other jurisdictions.

In the District of Columbia and six states—Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York— marriage between two persons of the same gender is legal. In Washington state and Maryland, similar laws have been enacted, but voters have a chance to affirm or reject these measures in ballot initiatives this November (see the related story in this issue’s POLITICAL DESK, Page 11).

Five states—Delaware, Hawaii, Illinois, New Jersey, and Rhode Island—have legalized civil unions. Four—California, Nevada, Oregon, and Washington state—have established domestic partnerships, which provide many of the same rights as marriage, although in the last instance, lawmakers passed a full marriage law which is the subject of a November voter referendum (see above).

Wisconsin provides limited benefits under domestic partnership laws, and Maine voters will decide in November whether to maintain similar benefits, or go for the Full Monty for such couples (see POLITICAL DESK story, Page 11).

The remaining 33 states, including Florida, offer no such provisions. There are three other appeals that challenge the 1996 federal law, including 17 married or widowed men and women who are suing for their federal benefits and recognition. The high court could decide to wait until the appeals process has been exhausted before allowing a full review by the justices.

The two eggs in the Supremes’ basket concern separate, bi-coastal cases. In August, a federal appeals court ruled against the California prohibition of same-sex marriage, arguing that it unfairly—and unconstitutionally—singles-out gays. The three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Proposition 8 “works a meaningful harm to gays and lesbians” and violates their 14th Amendment protections.

In 2008, the California Supreme Court ruled that gay marriages were legal, opening the floodgates for 18,000 gay couples to obtain marriage licenses. A subsequent ballot initiative that passed by 52 percent of voters put the kibosh on further same-sex weddings. It also put California in the position of being the only state to first permit, and then prohibit, marriage equality. The three-judge panel of the 9th Circuit didn’t decide whether or not gays have the right to marry, they ruled on the voters’ right to make such calls.

Which brings us to the larger question: What will the U.S. Supreme Court do? The justices may decide that a fundamental constitutional right is threatened, and strike down the laws of states that only permit one-man one- woman matrimony. Or they might determine that states must recognize same-gender nuptials performed in other jurisdictions, while letting them keep their own laws intact. They may also wait out the full process of judicial appellate review (which lessens the likelihood of a final ruling in the Windsor decision during Edith Windsor’s natural lifespan).

The Supremes may also decide to wait out the demographic clock, under the assumption that the law will eventually “right” itself, with theoretical passage of the Respect for Marriage Act overturning DOMA, and obviating the necessity of a high court ruling.

What is certain is that both sides will have the first Monday in October—when the court returns from its summer recess—clearly marked on their own calendars.

By Cliff Dunn

On Tuesday, the U.S. 9th Circuit Court of Appeals in San Francisco ruled to deny an appeal of a February lower court decision against California’s Proposition 8. The appeals court’s ruling paves the way for the U.S. Supreme Court to decide the fate of marriage equality by next year.

The 9th Circuit decision means the U.S. Supreme Court is likely to have two major gay-rights cases on its docket in the near future. The ruling comes less than a week after a federal appeals court in Boston ruled that the Defense of Marriage Act (DOMA)—the federal law that declares marriage to be solely between a man and a woman—discriminates against married same-sex couples, by denying them the same benefits granted under the law to heterosexual couples.

As in the California appeals court ruling, the Massachusetts judges chose narrow ground to assert that the law singles out gay couples for discrimination, in ways that violate their Constitutional rights to equal protection.

Neither federal panel took the step of declaring that the Constitution supports the right to same sex marriage.

Tuesday’s case concerns the statewide referendum passed by California voters in 2008 that placed a prohibition in the state constitution recognizing same sex marriages. In their 2-to-1 decision that struck down Proposition 8, the appeals court judges said, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.” The ban had reinstated a previous one against same-sex nuptials, just six months after the California Supreme Court struck it down as unconstitutional.

After the ballot measure amended the state constitution, two same sex couples sued in federal court, arguing that Proposition 8 violates the U.S. Constitution.

After the three-judge panel ruled in February that the ban violates federal constitutional guarantees—but limited the ruling’s effects to within California—sponsors of Proposition 8 asked the 9th Circuit to assemble an 11-judge panel to reconsider the case. A majority of the circuit’s judges voted against such a rehearing.

Although many believe that the U.S. Supreme Court will decide to hear one or both of these cases, the justices are not obligated to do so. Experts say that the nine-member high court is divided 4-to-4 on the question of marriage equality, with Justice Anthony Kennedy widely considered being the deciding vote. Both the California and Massachusetts federal appeals court rulings referred at several points to decisions by Justice Kennedy to legally justify the basis for their reasoning.

DES MOINES, IA – The state capital was awash in same-sex marriage events this week, and both sides were wellrepresented. On Tuesday, the Family Leader, a conservative Christian organization, held a rally in the Capitol Rotunda which was meant to convince the state Senate’s Democratic leaders to allow a vote on a proposed constitutional amendment that would prohibit marriage equality.

Same-sex marriage is legal in the Hawkeye State, after a 2009 state Supreme Court decision invalidated a state law barring such marriages. Since then, conservatives attempted to write a ban into the state constitution. Iowa’s Republican-led House approved such an amendment last year, but it has stalled in the state Senate. A constitutional amendment requires lawmaker approval of the proposed amendment in consecutive legislative sessions before it is then put to popular referendum.

One Iowa, an organization that advocates marriage equality, likewise held a rally on Tuesday, which featured speakers in support of same-sex marriage, including members of Iowa Republicans for Freedom, a GOP group that favors marriage equality, and the Interfaith Alliance of Iowa.

BY DMITRY RASHNITSOV

Washington State voters were worried that they would be harassed after signing a petition to repeal the state’s “everything-but-marriage” gay rights law. They did not want their names revealed, however, the Supreme Court of the United States said that if you wanted to discriminate, you would have to do so with your real name.

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” said SCOTUS Chief Justice John Roberts. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

The court ruled against a group called Protect Marriage Washington, which did not want its supports names revealed.  The court ruled 8-1 with only Justice Clarence Thomas dissented from the court’s majority opinion.

Roberts went on to say that the Supreme Court’s ruling affects all voter petitions, not just the Protect Marriage Washington one.

“Voters care about such issues, some quite deeply – but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case,” Roberts said.

The case now goes back to the lower courts for further arguments.

“This is a good day for transparency and accountability in elections – not just in Washington but across our country,” said Rob McKenna, Washington State’s attorney general. “We’re pleased the Supreme Court ruled in favor of disclosure, upholding the public’s right to double-check the work of signature gatherers and government – and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret.”

Justice Samuel Alito agreed the state law in general does not violate the Constitution, but said voters in this specific case and others may still be able to justify non-disclosure if they can rationally prove possible harassment.

Justice Thomas said he was dissenting because he felt it was a breach of people’s privacy and that by disclosing their names, it would keep some people from wanting to participate in the political process.

“In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records severely burdens those rights and chills citizen participation in the referendum process,” Thomas said. “Given those burdens, I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because they will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process.”

Washington Gov. Christine Gregoire in 2009 had signed a bill approved by the legislature affording same-sex couples, as well as domestic partners over the age of 62, the same “rights, responsibilities, and obligations” given married spouses.

About 138,000 people had signed the petition to put a repeal of the bill to a vote on the ballot. Even though supports of repealing Washington’s “everything-but-marriage” law was put to the vote of the people, the citizens of Washing

ton upheld it and left the laws alone.

Protect Marriage Washington sued to keep the names private and the case made its way all the way up to the 9th Circuit Court of Appeals in California. The 9th Circuit said that the names had to be revealed, but only an emergency stay by the SCOTUS kept the names private. The case now goes back to the 9th Circuit for additional arguments, but names are expected to be revealed by the end of the summer.

The case is Doe v. Reed, 09-559.