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This Friday, November 30, 2012, looms large for the American Lesbian, Gay, Bisexual and Transgender community in it’s fight for equality. The nine justices of the Supreme Court will hold a closed-door conference to select which, if any, of the major LGBT cases they will hear.

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The Supreme Court is not required to accept any certain number of the thousands of cases it is asked to review. In fact, during one term, there’s only enough time for the Court to hear 100 or so cases. If they do not accept a case, the decision of the lower court stands and it becomes the final ruling in the case. For instance, if the Supreme Court refuses to hear the lower court’s ruling against Prop 8, then legal same-sex marriage will return to California. The justices also have the option to postpone deciding whether to take a case holding it for consideration at a later conference.

The landmark LGBT cases on the November 30 agenda include:

1) Hollingsworth v. Perry (formerly Perry v. Brown and Schwarzenegger v. Perry), is the decision of the Ninth Circuit court of appeals earlier this year striking down California's Proposition 8 which banned marriage for California’s same-sex couples.

2) Five federal courts have ruled that DOMA, the Defense of Marriage Act, is unconstitutional. The Supreme Court could decide to take-up one or more of these cases. Included is a decision by the 2nd U.S. Circuit Court of Appeals in New York striking down Section 3 of DOMA (Windsor v. U.S.) which includes the lower court saying, “Lesbian and gay couples have suffered a history of discrimination."

3) Also up for consideration is the ruling by the Ninth Circuit Court in Diaz v. Brewer (formerly Collins v. Brewer) which said that Arizona Governor Jan Brewer cannot enforce an Arizona law stripping domestic partner benefits from state employees.

In a recent Los Angeles Times interview, Ted Olson, who along with David Boies represented Prop 8 opponents before the 9th Circuit, acknowledged that he's “torn on whether the court should step in.” Olson said, “We won the case, and if they don't take it, our clients won. They will be allowed to marry. But if they take the case, it could lead to a broader victory. We believe gays and lesbians have a constitutional right to be treated equally. And if it is a constitutional right, you shouldn't have to try to win at the ballot box in every state.”

The Supreme Court is expected to announce it’s choices by December 3.

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All of this is being played out against results from the 2012 U.S. elections which delivered unprecedented victories for LGBT causes and candidates. 2012 showed that American voters have made a fundamental shift in their attitudes not only towards marriage equality, but for gays and lesbians serving openly in the country’s armed forces and myriad candidates who are open about their sexual orientation. In the words of Chuck Wolfe, president and CEO of the Gay & Lesbian Victory Fund, "This wasn't incremental progress. This was a breathtaking leap forward." (118 of the 180 openly LGBT candidates endorsed by the VIctory Fund won election or re-election!)

There’s no doubt that Americans followed the lead of President Obama, who not only came out publicly for same-sex marriage, but lifted DADT (Don’t Ask, Don’t Tell) and refused to defend DOMA in court. Maine, Maryland and Washington state voted in favor of same-sex marriage while at the same time, the good citizens of Minnesota defeated an initiative which would have placed a ban against same-sex marriage in their state constitution.

The President’s support also translated into greater support from African-Americans and Hispanics.

In Maryland, for instance, especially important was the support by black pastors for marriage equality. The pastors and other clergy, led by the Rev. Delman Coates of Mt. Ennon Baptist Church in Clinton, worked tirelessly to help erase the perception that they and their congregations are against gay marriage. The Pew Research Center found blacks divided more evenly on same-sex marriage with 44% in favor and 39% against. 2012 exit polls found more Hispanic voters (59%) supporting gay marriage than opposing it (32%). Among whites, 49% favored and 41% opposed same-sex marriage.

The PR effort to keep the surge of pro-lgbt marriage rights alive continues. Just this week, only days before the Court’s decision, a new PSA sponsored by the Human Rights Campaign (HRC), a leading lgbt rights organizations, features actor and activist Morgan Freeman supporting marriage equality .

carl matthes

The spot features images of the Statue of Liberty, the Constitution, Martin Luther King, the Washington Monument and the HRC hopes it will be another nail in the coffin of the National Organization of Marriage and other right-wing groups fighting against marriage equality.

There’s no doubt that the nation, with the strong support of President Obama, is moving towards greater acceptance that in the eyes of the law all, including the lgbt community, are created equal.

Carl Matthes

Published: 27 November 2012