US supreme court takes up gay marriage cases – as it happened

The supreme court has decided to take on cases related to the Defense of Marriage Act and Proposition 8 in California. Follow the decisions live
Edith Windsor, whose Defense of Marriage Act case is to be reviewed by the Supreme Court
Edith Windsor, whose Defense of Marriage Act case is to be reviewed by the Supreme Court, at the offices of the New York Civil Liberties Union in New York. Photograph: Richard Drew/AP

This blog is winding up now – but here's the Guardian's news story:

The US supreme court will take up the issue of same-sex marriage for the first time, agreeing to hear two cases that could decide whether gay and lesbian Americans have the same constitutional right to marry as heterosexuals.

Summary

The supreme court is to take on cases related to the 1996 Defense of Marriage Act, and Proposition 8, California's 2008 measure banning same-sex marriage.

The justices will review the case of Edith Windsor, who was forced to pay more than $363,000 in federal estate taxes after the death of her spouse, Thea Spyer. Their marriage was not recognized under federal law.

Windsor told the Guardian she was "delirious with joy" at the news. She met Spyer in 1965 and the pair became engaged two years later, eventually marrying in 2007. Spyer died in 2009 after battling multiple sclerosis for many years.

Conservatives respond

Bryan Fischer, of the American Family Association, told my colleague Matt Williams: "It is good that the Supreme Court has taken up these issues, what is needed is clarity at a national level. I'm optomistic that the Supreme Court will rule in favour of natural marriage, one man, one woman."

"There is a huge risk, obviously, but with an issue of this magnitude, I'm confident the supreme court will exercise restraint."

Fischer said that overturning Doma would represent "the end of democracy in the US".

Gay rights lawyer Lavi Soloway, who founded the Doma Project, which raises awareness of the impact of the Defense of Marriage Act on married gay and lesbian couples, has just spoken to my colleague Matt Williams.

I think Doma is now likely to be struck down by the supreme court. It has already been found to be unconsitutional in eight rulings, and it has never been upheld by any court. The Windsor case is a particularly compelling one.

Soloway added that any decision would be immediately felt by all those facing the "nightmare" of having a loved one deported as a result of their marriage not being recognised at a federal level. The lawyer said he would now petition the White House to stay all deportations in the case of spouses of gay US citizens until the supreme court ruling has been made.

The New York Times takes a timely look at how much support there is for gay marriage nationwide.

"Support for same-sex marriage among the public has been growing, but the country remains divided," the Times says. In a Pew poll in October 49 percent of respondents said they favored allowing gays and lesbians to marry legally and 40 percent were opposed. In August 2008, the numbers were almost the opposite. Some 39 percent were in favor, with 52 percent opposed.

While about half of the country supports the legalization of same-sex marriage, supporters are not evenly distributed. Based on Pew data, a majority favor same-sex marriage in New England, in the mid-Atlantic states and along the Pacific Coast. In the Midwest and the south Atlantic states, opinion is closely divided, but in the central South, a majority opposes same-sex marriage.

About two in three people who attend religious services on a weekly basis oppose same-sex marriage, according to Gallup. About two in three people who attend religious services less than monthly favor it.

Regardless, there has been an increase in support for same-sex marriage across almost all groups. According to Pew polls, the percentage that currently favors allowing gays and lesbians to marry legally is far higher now than it was a decade ago in every region, for instance.

Freedom to Marrywhich campaigns to win marriage equality nationwide, has urged the supreme court to act quickly to rule in favour of same sex marriage.

Here's the statement from Evan Wolfson, founder and president of the organisation:

By agreeing to hear a case against the so-called Defense of Marriage Act, the Court can now move swiftly to affirm what 10 federal rulings have already said: DOMA’s ‘gay exception’ to how the federal government treats married couples violates the Constitution and must fall. When it comes to the whole federal safety net that accompanies marriage – access to Social Security survivorship, health coverage, family leave, fair tax treatment, family immigration, and over 1000 other protections and responsibilities -- couples who are legally married in the states should be treated by the federal government as what they are: married.

Here's the audio of Edith Windsor reacting the news that the supreme court will hear her case.

The Alliance Defending Freedom, a conservative Christian advocacy organisation which campaigns against same sex marriage, is not happy that same sex couples could potentially be granted the freedom to marry.

Here's a statement from the Alliance's Legal Counsel Jim Campbell:

Marriage between a man and a woman is a universal good that diverse cultures and faiths have honored throughout the history of Western Civilization. Marriage expresses the truth that men and women bring distinct, irreplaceable gifts to family life. The ProtectMarriage.com legal team looks forward to advocating before the US Supreme Court on behalf of the people’s right to preserve this fundamental building block of civilization.

(Some) politicians pleased

Nancy Pelosi (@NancyPelosi)

I’m confident Supreme Court will discard DOMA and Prop 8 into the dustbin of history. Let’s get this over with and on to the future!

December 7, 2012
Sen. Jeanne Shaheen (@SenatorShaheen)

#SCOTUS says they will soon consider 2 cases on same sex marriage. Hopeful that these cases will pave the way for marriage equality for all

December 7, 2012

For those interested in the legal details of why the justices chose these two cases out of the wide choices available, there's a good analysis on the Towleroad website by Ari Ezra Waldman, who teaches at Brooklyn Law School. He asks if this a good or bad result?

Granting Windsor gives the Court a unique opportunity to come together to declare Doma unconstitutional, though it is not clear that the Court is ready to mandate heightened scrutiny. But, there is no doubt that the grant in Hollingsworth [Proposition 8] took me by surprise. It's framing the case in the broadest way possible offers a chance for a monumental victory or a great loss because the breadth of the case could have ramifications outside California. This is what Ted Olson, David Boies, and the AFER team wanted all along and the country is no much closer to accepting the freedom to marry in great part because of AFER's skillful engagement with the American public on marriage freedom.

The Courage Campaign, which pushes for equal rights in California and across the US, has tweeted this image. Simple but effective.

CourageCampaign (@CourageCampaign)

BREAKING: US Supreme Court takes both #Prop8 & #DOMA. #GameOn. twitter.com/CourageCampaig…

December 7, 2012

One of the leading legal lights behind the gay marriage campaign is Ted Olsen, who was solicitor general from 2001 to 2004 under George W Bush. His views on gay marriage have famously evolved to the point where he joined with David Boies, who opposed him in Bush v Gore, to argue the successful appeal in California against Proposition 8, which banned gay marriage in the state.

Chris Geidner of Buzzfeed has just spoken to him.

Chris Geidner (@chrisgeidner)

Ted Olson says the court should address the merits: "It will be an education for the American people." #Prop8

December 7, 2012

I've just had a quick word with Edith Windsor, who is delighted at the news the supreme court has decided to take on her case.

"I feel delirious with joy, I think it's wonderful," said Windsor, who is 83. "I think it's the beginning of justice like I imagined in fourth grade civics. I'm thrilled at how it's gone."

Windsor said her wife Thea Spyer, who died in 2009, would be proud of the achievement.

I think she'd be so proud and happy and just so pleased at how far we have come. It's a culmination of an engagement that happened between us in 1967 when we didn't dream that we'd be able to marry.

Windsor, a former IT worker, met Spyer in 1965. They became engaged in 1967 and finally married in in 2007. Spyer died in 2009 after battling multiple sclerosis for many years.

"I think Doma is wrong for all of the various ways in which it discriminates against same sex married couples and against gays all together," Windsor said. "It's enormously satisfying and fulfilling and exciting to be where we are now."

Windsor said she was confident of the supreme court ruling in her favour.

I really believe in the Supreme Court. First of all, I'm the youngest in my family and justice matters a lot – the littlest one gets pushed around a lot. And I trust the Supreme Court, I trust the constitution so I feel a certain confidence that we'll win.

Gay Marriage advocates cheer during a rally moments before hearing the news of the Proposition 8 over-ruling outside the Ninth Circuit Courthouse in San Francisco, California, 7 February 2012.
Advocates for gay marriage cheer during a rally outside the Ninth Circuit courthouse in San Francisco, California, 7 February 2012, when Proposition 8, banning gay marriage in the state, was struck down. Photograph: Beck Diefenbach/Reuters

In relation to Proposition 8, the justices have also decided to rule on the merits of the case. But it appears that as with the Doma case, they have afforded themselves a similar get-out clause: they will first decide whether the Bipartisan Legal Action Group has the legal standing to bring its appeal.

What that means is this: If the justices rule that Blag does not have the required legal standing, then the lower court ruling, striking down Prop 8, would stand. 

The story is not straightforward. In relation to the Defense of Marriage Act (Doma), the Supreme Court justices have agreed to consider the merits of the case. But they have also given themselves a get-out clause.

They will rule first on whether the executive branch (the Obama administration, which believes Doma is unconstitutional), has an obligation to defend it; and whether Blag, the Bipartisan Legal Action Group (which House Republican leaders are directing through their majority on the group ), has legal standing.

"There is a great deal of complexity in the marriage orders", writes Lyle Denniston, the veteran Supreme Court reporter on Scotusblog.

Supreme Court to take up gay marriage cases

Welcome to our Supreme Court live blog. This afternoon we have word that the justices are to take on cases related to the 1996 Defense of Marriage Act, and Proposition 8, California's 2008 measure banning same-sex marriage. It is a big moment.

The justices announced on Friday that they will review the case of Edith Windsor, an 83-year-old widow who was forced to pay more than $363,000 in federal estate taxes after the death of her spouse, Thea Spyer, because their marriage was not recognized under federal law. As the ACLU says, "if Spyer had married a man instead of a woman, no estate tax would have been owed"

The justices will also review a federal appeals court ruling that struck down California's gay marriage ban. Two federal courts have found Proposition 8 to be unconstitutional. This is a developing story, and we will have full details and reaction as they emerge.

Supreme Court
The US Supreme Court has decided to take up cases related to gay marriage. Photograph: Evan Vucci/AP