Last week the US Supreme Court agreed to hear two cases pertaining to marriage equality. The issues presented by each case are complex. Here’s a roundup of what the lawyers at FreedMcKeen are reading on the Supreme Court’s decision to take cases dealing with marriage equality.
Erwin Chemerinsky, the dean of UC Irvine’s law school, is confident about how the Supreme Court will end up ruling on Proposition 8.
“I believe the court will find that Prop. 8 and (the Defense Of Marriage Act) are unconstitutional,” Chemerinsky said. “The court decision will be 5-4 and I predict Justice Kennedy will write it. The court will say that the government has no legitimate interest in denying gays and lesbians the right to marry” – Constitutional Scholar, Erwin Chemerinsky
Typically, when a court says a federal statute is unconstitutional, the federal government appeals to the Supreme Court to change the outcome. But after initially defending DOMA in the courts, the Obama administration made a highly unusual U-turn, and instead urged the Supreme Court to strike it down.
At that point, the House Republican leadership hired its own lawyer to defend the law. So when the case is argued, probably in March, it will be that lawyer — former Bush administration Solicitor General Paul Clement — who will be defending DOMA, while the Obama administration will be urging the court to strike down the statute.
These twists and turns apparently have caused the justices some concern as to whether they have the jurisdiction to decide the case when the federal government is no longer defending the law as constitutional. So the court has ordered the lawyers to also present arguments as to whether the Republican congressional leadership has standing to defend DOMA in place of the Obama administration.
The court may decide it doesn’t have standing to hear the cases writes Lyle Denniston from Scotusblog:
Each side gained the opportunity to make sweeping arguments, for or against such marriages. But the Court left itself the option, at least during the current Term, of not giving real answers, perhaps because it lacks the authority to do so.
FreedMcKeen lawyers support marriage equality. Meghan Freed co-authored an amicus brief in support of marriage equality in the landmark case of Kerrigan v. Department of Public Health. Ryan McKeen handled one of Connecticut’s last dissolution of Civil Union cases.