The Next Term: Will SCOTUS have a homosexual agenda?

September 12, 2012

Looking ahead to SCOTUS(Editor’s note: The Supreme Court will start to hear oral arguments for its 2012 term on October 1.  In preparation, we’ll be looking at major cases  that will be or may be before the Supreme Court throughout the month of September).

The first week’s post on the possible dischargeability of student loan debt in bankruptcy.

As many commentators have already observed, this could be a momentous Supreme Court term for the same-sex community.


Because there are quite a few cases on the topic currently seeking certiorari before the Court.

I mean, just look at this list of petitions and amicus briefs.

Of course, the Supreme Court hasn’t actually granted cert to any of those petitions, but there are three of them coming before the Justices for review during their September 24 conference.

Those three cases more or less represent three of the major legal battles currently ongoing involving same-sex rights.

The first has to do with California’s Proposition 8, which was a 2008 ballot initiative that amended the California State Constitution by adding a section that simply read that “only marriage between a man and a woman is valid or recognized in California.”

The Ninth Circuit Court of Appeals invalidated Prop 8 – not because it found that homosexuals have a right under the U.S. Constitution to marry, but because Prop 8 was designed to strip that existing right away from them (you can read more about that in this post).

Now, I know that in that post I predicted that the Supreme Court will be unlikely to hear the case, but I don’t know if I believe that anymore.

Given the current Court’s penchant for taking cases on divisive issues, I would be surprised if they denied this one.

What are the chances of the other two cases getting before the Court?

The second petition is Brewer v. Diaz , another petition for certiorari out of the Ninth Circuit.

Diaz started as a challenge to an Arizona law that narrowed the scope of the definition of “dependent” for the purpose of the state’s healthcare coverage for its employees to only apply to spouses and their children – thus, eliminating coverage for domestic partners.

Although the law applied to both homosexual and heterosexual couples, the Ninth Circuit struck it down because, due to a 2008 state constitutional amendment (similar to Prop 8), same-sex couples could not get married, and consequently, the law disproportionately discriminated against them.

Sounds similar to the Proposition 8 case, doesn’t it?

Does that mean it will get its day in (Supreme) Court?

It seems likely for the same reasons as the Prop 8 case: the divisiveness of the issue and the striking down of a state law by a federal court both make the case appealing to the Supreme Court.

What about the third petition?

I saved the best for last: the third case is Windsor v. U.S., a Defense of Marriage Act (DOMA) challenge from New York.

Why is it the best?

The second defendant – the Bipartisan Legal Advisory Group of the United States House of Representatives – gives us a hint.

That group, or “BLAG,” is the House Republicans’ response to President Obama’s declaration in February of 2011 that the Justice Department would stop defending the constitutionality of DOMA in court.

The specific facts of Windsor involve the widow of a deceased woman seeking a refund of federal estate taxes on her deceased wife’s estate (taxes she wouldn’t have had to pay had her deceased spouse been male).

As politically juicy as this case would get if it were fully played out before the Supreme Court, it seems least likely to see its cert petition granted simply because the Second Circuit Court of Appeals has not heard the case yet (the appeal is coming directly from the Southern District of New York).

Nevertheless, it’s entirely possible that the Court would agree to hear this case since (1) it can essentially do whatever it wants and (2) it would be expeditious to roll the other two cases together with this one.

Even if the Court refuses to hear this one, there are plenty of other DOMA challenges in the queue ready and waiting to go.

So yes, it looks like the Supreme Court will likely have a homosexual agenda this term.