“For the Days Dwindle Down, to a Precious Few*…” What Will SCOTUS Do?

jerrold nadler

Rep. Jerrold Nadler (D-New York)

For those focused on the Supreme Court of the United States, June 2013, like February, has only 28 days. For Friday, June 28, is the last day of the current Supreme Court term. And, with apologies to Democratic President Franklin Delano Roosevelt, June 28 will be “a date which will live in infamy” for Christian conservatives or the Lesbian, Gay, Bisexual and Transgender (LGBT) community. At some moment within the next few days, the Court’s decisions in the Defense of Marriage Act (DOMA) and California’s Prop 8 cases will be announced.

It was in 1996 that Congress passed DOMA. Only 17 years ago same-sex marriage was not legal — anywhere — in our country. At that time, Congressman Bob Barr (R-GA) took the lead to stop same-sex marriage by having Congress pass legislation stating “only marriages that are between a man and a woman can be federally recognized, and individual states may choose not to recognize a same-sex marriage performed in another state.” President Bill Clinton signed DOMA into law.

However, rather than putting an end to the Constitutional promise that “All are created equal,” DOMA did the opposite: It became the spark propelling the LGBT community to fight for marriage equality.

And, since 1996, the country has changed.

WIthin a dozen years (2008), DOMA’s author Barr was apologizing for his misguided efforts in writing and fighting for DOMA. LGBT residents in Massachusetts and Connecticut could be legally married. And, despite the much-heralded 2008 success of Prop 8 in California to stop same-sex marriage, that vote, and its subsequent ramifications, provided not only 18,000 lesbian and gay couples with legal marriages, but the accelerant for the Prop 8 case currently being decided by SCOTUS.

In 2009, U.S. Representative Jerrold Nadler (D-NY) introduced the Respect for Marriage Act (RFMA), attracting 120 co-sponsors. RFMA would repeal the DOMA while requiring the federal government to recognize the validity same-sex marriages. Nadler will not re-introduce the RFMA until after the United States Supreme Court rules on DOMA. Significantly, RFMA is supported by both Barr and Clinton.

As Jonathan Capehart of the Washington Post points out, “Today, there are 12 states, plus the District of Columbia, where same-sex marriage is legal. Half of those states adopted marriage equality in the last 12 months. And half of those — Delaware, Minnesota and Rhode Island — did so last month.”

This week’s report by Sarah Trumble and Lanae Erickson Hatalsky of Third Way, a Washington DC-based progressive think tank, on the “State of Relationship Recognition in 2013,” reveals, “As of June 2013, 49.5 percent of the country—more than 150 million Americans—lived in a place with some sort of relationship recognition law for gay couples.” The latest Post-ABC News poll shows support for marriage equality among Americans at 58 percent.

Meanwhile, working harder than America’s cell phone tappers at the National Security Agency, are those surveilling anyone with any connection whatsoever to SCOTUS. Be it a SCOTUS clerk, janitor, pet cat or a Justice’s 9th cousin by marriage, any inkling or perceived leaking of any minutiae or trivia is magnified, scrutinized and blogged by court watchers. Even retired SCOTUS justices are making predictions: Retired Supreme Court Justice John Paul Stevens read his tea leaves and predicted, “SCOTUS will strike down the Defense of Marriage Act as unfair tax policy, and dismiss the California Proposition 8 case for lack of jurisdiction.”

Court watchers observed, “At least seven cases that already have been decided were argued after the Prop. 8 and DOMA cases.” SCOTUSblog expert, lawyer Amy Howe, writes: “I was talking to someone who clerked at the court, and he said last year that even if health care had been argued on the first day of the term, it still would have gone to the last day.”

The court has 14 outstanding cases to decide before the end of it’s term. Next scheduled release date: Thursday, June 20.

carl matthesSo the LGBT community waits at the altar while remembering the Dixie Cups** from 1964:

“Goin’ to the chapel and we’re gonna get married
Goin’ to the chapel and we’re gonna get married
Gee, I really love you and we’re gonna get married
Goin’ to the chapel of love.”

*”September Song” by Kurt Weill with lyric by Maxwell Anderson

**”Chapel of Love” by Jeff Barry, Ellie Greenwich and Phil Spector

Carl Matthes

Tuesday, 18 June 2013


  1. JoeWeinstein says

    With all due respect, I’m not at all sure that 17 years ago 1-gender marriage was nowhere ‘legal’ in the USA. How many states actually had laws (not merely unchallenged custom) which explicitly restricted marriage to 2-gender couples – i.e. prohibited government recognition of 1-gender wed unions as ‘marriages’ ?
    And that’s really a big part of the point. The Supreme Court – and no matter what the Court does, US public opinion – is really being asked to rule on the constitutionality not of mere custom but of two laws – the federal DOMA and the California Prop8 – that explicitly prohibit governments from recognizing 1-gender wed unions as marriages.
    These prohibitionist laws are the explicit expression of a bigoted haughty dog-in-manger sadism: ‘my right, to have my 2-gender union be given the legal privileges of ‘marriage’, allow and even require depriving you of any equal right to have your 1-gender union also be recognized as marriage’.
    These laws impact not only gay people but also straight people and for that matter people whose choice of life partner may have little or nothing to do with sexual interest or orientation.
    Indeed, even for those of us not members of LGBT communities, there still is a big civil rights and equal treatment issue: When two competent adult persons solemnly and voluntarily choose each other as closest-living-kin – for whatever reasons – why should government NOT recognize that kinship?
    Government recognizes as closest living kin all sorts of couples (both 1-gender and 2-gender) where the fact of closest-living kinship is NOT the voluntary choice of the persons themselves but arises from choices of others plus accidents of survival. How then can government be allowed perversely to fail to recognize any case of a competently voluntarily and solemnly chosen closest-living-kin relationship?

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