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Sotomayor: Same-sex marriage decisions will be a ‘turning point’ for gays

Justice Sonia M. Sotomayor  — or “Sonia from the Bronx,” as she likes to be called — said the U.S. Supreme Court’s rulings on the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act will have an impact on gay Americans, regardless of how the court comes down.

The will be “a turning point for those whose lives will be changed, for better or for worse,” Sotomayor  said at an event Sunday in Cooper Union, a private college in Manhattan’s East Village, according to the Wall Street Journal. Decisions in those cases are expected just before the court wraps up its term at the end of June.

Sotomayor made it clear she wasn’t showing the court’s cards, though, adding: “just so you’re all clear, I’m not predicting anything.”

Justices could be gun shy in round 2 of same-sex marriage arguments

Yesterday, when considering the constitutionality of California’s Proposition 8, several justices indicated that it may be simply too soon.

“You want us to step in and render a decision based on an assessment of the effects of this institution [of same-sex marriage] which is newer than cell phones or the Internet?” asked Justice Samuel A. Alito Jr. at one point yesterday. “I mean, we do not have the ability to see the future.”

Now court watchers will see if the justices express the same reluctance as they take up the law that prohibits federal recognition of same-sex marriage – the Defense of Marriage Act. Follow DC Dicta on Twitter (@DCDicta) for updates from the courthouse, and check Lawyers USA online later for an analysis o f the arguments.

Possible new twist in Prop 8 case?

The justices of the U.S. Supreme Court tussled over California’s same-sex marriage ban during oral arguments that were at times heated, pointed and even emotional. But the court also hinted that the case could have a surprise ending.

Justice Anthony M. Kennedy and other justices suggested the possibility that the case was taken up entirely too soon. With so little evidence about the societal effects of same-sex marriage, some asked whether the case had been improvidently granted.

“The sociological information is new. We have five years of information to weigh against 2,000 of years of history, or more,” Kennedy said during oral arguments Tuesday in Hollingsworth v. Perry.

Read more here at Lawyers USA online.

Waiting for the Supreme same-sex marriage showdown

People hoping for a chance to witness Supreme Court oral arguments this week in the two challenges to same-sex marriage laws  began lining up – or paying others to line up – outside the courthouse on Friday. Monday morning a wintry mix of snow, rain and wind did not quell their resolve to be a part of history.

Tuesday the justices take up the challenge to California’s same-sex marriage ban in Hollingsworth v. Perry, and Wednesday the court will hear U.S. v. Windsor, the challenge to the federal Defense of Marriage Act. DC Dicta will be tweeting before and after arguments and later recap on this blog and on LawyersUSAOnline.com.

Will justices’ personal family choices shape views in same-sex marriage cases?

Some are single, others are married. Some divorced, and some remarried. Some married partners from different racial or ethnic backgrounds. Some have biological children, some adopted children, and some chose not to have children.

Who are they? The justices of the U.S. Supreme Court. And as they take up a pair of cases challenging federal and state laws banning same-sex marriage recognition, their own personal experiences could help shape their views of the parties’ arguments, the AP’s Mark Sherman writes.

One of the arguments advanced by proponents of California’s Proposition 8 and the federal Defense of Marriage Act is that marriage was intended for the creation of biological children, and should therefore be limited to opposite-sex couples. Those challenging the laws rely on case law such as a  1967 Supreme Court decision striking down state law interracial marriage bans as unconstitutionally discriminatory.

While the justices rarely cite personal experience in their opinions, they “also are not immune to considering how they might be affected by the course one side or the other is advocating in a dispute before them,” Sherman wrote.


Obama administration urges Court to strike down Prop 8

The federal government, in addition to waging its own battle against the federal Defense of Marriage Act, has officially waded into the Supreme Court challenge to California’s same-sex marriage ban, asking the justices last night to strick down the law, though stopping short of asking the Court to set a nationwide rule.

The Justice Departments amicus brief in Hollingsworth v. Perry asks the Court to strike the marriage and civil union laws in California and eight other states that limit or prevent same-sex couples from enjoying the same rights and benefits as opposite-sex couples. The Court can do this, the Obama Administration argues, without declaring a national constitutional right to marry – an issue that can wait until another day, the brief said.

Attorney General Eric H. Holder Jr. explained in a statement released yesterday, “the government seeks to vindicate the defining constitutional ideal of equal treatment under the law.”

“Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination,” Holder’s statement said. “The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

Attorney’s fee tab secretly grows in DOMA defense

House Republicans signed authorized an increase the maximum amount Paul Clement and his colleagues at Bancroft can be paid to defend the Defense of Marriage Act from $1.5 million to $2 million – and Democrats were in the dark about the move for three months.

This week Democrats learned on the measure, which was signed off three months ago by House Administration Chairman Dan Lungren, R-Calif., this week, Roll Call reports. This is the third time GOP lawmakers have lifted the cap on the tax payer-funded attorney fees that can be paid in their defense of the law, which denies to same-sex married couples benefits available to other married couples.

The quietly-authorized increase angered Democrats including House Minority Leader Nancy Pelosi, who in a statement called the move “unconscionable” and “irresponsible.”

The U.S. Supreme Court granted cert in the 2nd Circuit DOMA challenge last week, and is expected to hear the case in March.

Will public opinion sway Court’s same-sex marriage rulings?

So if the Supreme Court takes public opinion into consideration – as some pundits assert was the case in Chief Justice John G. Roberts, Jr.’s switched vote on the health care decision – what does that mean for the upcoming cases involving same-sex marriage rights?

Next term the Court will likely take up the challenge to the federal Defense of Marriage Act, which denies federal marriage benefits to same-sex couples, as well as California’s Proposition 8, a voter-imposed ban on gay marriage in that state.

As polls show a steady increase of support for same-sex marriages among Americans, could that be a factor in the justices’ opinion? In a blog post for The New Yorker, Richard Socarides suggests so. If Roberts votes with a majority to uphold DOMA and Prop 8, he could find himself at odds with American public opinion – and also in the position to have to reverse himself later if the issue returns to the Court for a second time, Socarides argues:

“Historically, it is in these situations that public opinion matters and can be significant, as it was with the Court’s rulings on civil-rights issues. It’s never an issue of the Court looking to public opinion for the result—but they do look to the direction the country is headed, and at its normative values, to see if the result will be accepted by the governed.”

More here from The New Yorker, and more Supreme Court news and information from Lawyers USA here on our Supreme Court Report.

Legal shakeup over House GOP’s DOMA defense (access required)


After the law firm King & Spalding decided to withdraw from representing House Republicans’ defense of the Defense of Marriage Act, lead attorney and former Solicitor General Paul Clement resigned from the firm in protest – and quickly vowed to continue the defense of the law with the boutique firm Bancroft PLLC.

The move came in a shocking turn of events this morning, which started with the announcement from King & Spalding that it would seek to withdraw as counsel in charge of defending the law, which denies federal benefits to gay married couples.  The firm’s chairman, Robert Hays Jr., said the decision was due to the firm’s “inadequate” vetting of its involvement in the litigation, according to the National Law Journal‘s BLT blog. Gay rights groups have recently criticized the firm for taking up the defense of the law after the Obama administration announced earlier this year that it would no long defend the statute against challenges in federal court.

Clement protested by resigning from the firm, which he joined back in 2008 after leaving the solicitor general’s office. In his letter of resignation, posted by the blog How Appealing, Clement said he decided to leave the firm immediately “not because of strongly held views about this statute.”

“Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s position is extremely unpopular in certain quarters,” Clement wrote. “Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”

Soon after, Bankroft released a statement announcing Clement as the firm’s newest partner. The announcement, which touts Clement’s background as a veteran Supreme Court advocate, mentions neither his work at King & Spalding nor his representation in the DOMA case.