Ready? We're about an hour away from the Supreme Court's release of opinions.
We've put together a collection of articles by The National Law Journal Supreme Court correspondent Tony Mauro and chief Washington correspondent Marcia Coyle about the historic fight over same-sex marriage.
Have a look as you wait for the Supreme Court buzzer, set for 10 a.m. Check back in with The BLT and NLJ.com today for reports and analysis on today's expected rulings on the Defense of Marriage Act and California's Proposition 8.
April 2013: Court likely to dump DOMA, punt on Prop. 8
The Supreme Court's historic two-day scrutiny of the issue of same-sex marriage showed the justices as a cautious bunch — wary about ruling on a subject that is new to them, especially when it came to the court in the form of two cases weighted down with procedural baggage.
Yet after it was all over, it seemed possible that the court is on the verge of a landmark ruling overturning the federal Defense of Marriage Act (DOMA), while it might punt on California's Proposition 8 by finding that the ballot initiative's backers lacked standing to defend it.
The Supreme Court on Wednesday concluded its historic two-day scrutiny of the thorny issue of same-sex marriage, displaying wariness about ruling on the subject even as it appeared possible that the justices will strike down the federal Defense of Marriage Act.
With hundreds of partisans on both sides parading and debating in front of the court on Tuesday and Wednesday, the justices inside probed all aspects of the issue from the philosophical and political to the procedural.
March 2013: Inside the Court, a host of legal stars
The first sign of how big Tuesday's Supreme Court arguments in Hollingsworth v. Perry would be was visible even before the justices took to the bench.
Stacks of briefs, not usually seen on the bench, were piled high—nearly 100 were filed—in front of several justices' seats. Later, when Justice Antonin Scalia announced the ruling in Florida v. Jardines, he joked that he was speaking "from behind these briefs here."
The courtroom was packed, with luminaries of the gay rights legal movement sprinkled throughout the spectator seats—Paul Smith, Chai Feldblum, Evan Wolfson, Suzanne Goldberg and Pamela Karlan, to name a few.
The historic constitutional test of gay marriage rights unfolds on March 26, when the U.S. Supreme Court takes up California's same-sex marriage ban, a case in which opponents to the ban seek not a narrow victory, but full participation by gay couples in the fundamental right to marry.
More than 40 years have passed since the high court faced its first and only same-sex marriage challenge, one brought by Minnesotan Richard James "Jack" Baker. The justices, without comment, dismissed Baker v. Nelson for want of a substantial federal question. There is little doubt that the Roberts Court will have much more to say, and what it says could well define the court for years to come.
Tony Mauro, our U.S. Supreme Court correspondent, has just emerged from arguments over the constitutionality of California’s Proposition 8, which banned same-sex marriage in the state. He spoke with NLJ Editor in Chief David Brown about today's action:
I think they’re headed for a fairly limited decision possibly confined to California. That could mean they uphold Prop 8, but the state would be free to have another initiative. (Justice Samuel Alito pointed out that they have a lot of initiatives in California)
If they strike down Prop 8, they could also apply that decision only to California. There are some justices (Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan) who appear to want to go for a broader decision. Justice Anthony Kennedy seemed on the fence. Justice Alito and Chief Justice John Roberts, even Justice Stephen Breyer possibly, may be looking for a more limited decision.
Just before signing the Defense of Marriage Act into law in 1996, President Bill Clinton said, "I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position."
Earlier this month, Clinton said he had changed his mind and now thinks Section 3 of the law defining marriage as between a man and a woman is unconstitutional. "We understand that, while our laws may at times lag behind our best natures, in the end they catch up to our core values," he wrote in a Washington Post op-ed.
As the U.S. Supreme Court takes up the issue in the case of U.S. v. Windsor March 27, it is faced with dozens of briefs from groups of former military officials, intelligence officers and even a bankruptcy judge among others urging it to strike down the law. The question is whether the justices — and especially Anthony Kennedy — will agree with Clinton that the time has come to change course.
March 2013: Lawyer lineup set for gay marriage cases
It will be déjà vu all over again March 27, when Solicitor General Donald Verrilli Jr. squares off against former SG Paul Clement at the Supreme Court on same-sex marriage – exactly one year after they opposed each other in the Affordable Care Act cases. What hot-button issue will they be back for next March 27?
The two-week argument cycle beginning today will be dominated by same-sex marriage issues in Hollingsworth v. Perry (the Proposition 8 case) on March 26, and U.S. v. Windsor (the Defense of Marriage Act case) on the 27th. A number of other cases, including some that might bring back bad memories for the justices, are also on deck.
But first, here is a rundown on who will argue the same-sex marriage cases: as expected, Charles Cooper of Cooper and Kirk will speak first for the proponents of Prop. 8 for 30 minutes, and Gibson, Dunn & Crutcher's Theodore Olson will go next for 20, representing same-sex couples who oppose Prop. 8. In an unusual pairing, Verrilli will speak for the rest of Olson's half hour, also arguing against Prop. 8. A total of one hour is devoted to the case, and it will be the only one argued March 26.
Supreme Court Brief today examines the parties and lawyers who participated in the nearly 80 amicus briefs filed in the DOMA case. All of the amicus briefs may be found here.
A group of openly identified gay lawyers was sworn into the U.S. Supreme Court bar at a court session earlier this month, an apparent first.
The 30 lawyers sworn in on January 22 were members of the National LGBT Bar Association and were identified as such by court clerk William Suter in announcing their group admission to the court.
Paul Smith, chairman of Jenner & Block's appellate and Supreme Court practice, made the motion to have the group admitted, and Chief Justice John Roberts Jr. granted the motion, as he did for other groups of lawyers—from women's bar and military lawyer groups—that morning. Court artist Art Lien captured the moment with a sketch.