The most surefire statement about the Supreme Court under Chief Justice John Roberts is that corporate interests will win the day. In the 2011-2012 term, the Court sided with every case on which the US Chamber of Commerce filed a friend-of-the-court brief, according to the Constitutional Accountability Center. In highly publicized cases like Citizens United and dozens of smaller but no less critical ones, the Court, especially the conservative wing, has tilted toward corporate concerns dramatically, at the expense of ordinary individuals.
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David Gans, civil rights director for the progressive Constitutional Accountability Center, found a positive in the limited argument presented by Verrilli: it provides another option to justices unswayed by American Foundation for Equal Rights attorney Ted Olson’s argument in favor of a fundamental right to same-sex marriage. “In some ways, it was a very useful complement to the argument that Ted Olson made,” Gans said. “What Verrilli offered was sort of an alternative. Olson and Verrilli gave them a broader option as well as a narrow one that would decide this case, but not other cases. In light of some of the concern expressed by justices, in the end, it may prove valuable.”
Both Zarrillo, one of four people challenging California's Proposition 8 ban on same-sex marriage, and Windsor, the New York widow challenging the Defense of Marriage Act, may win their cases when the justices rule in June. But few expect the type of landmark decisions that would make civil rights history. For proponents of marriage equality, that would mean progress without precedent. And that may be good enough.
As Douglas Kendall of the Constitutional Accountability Center told me, a crisper way of combining the states rights and equality argument might go something like this. “Justice Kennedy could write an opinion that strikes down [DOMA] on equal protection grounds in part because it’s such a sweeping law that intrudes into areas where states have typically had a fair amount of leeway,” he said.
"If the court does get to the merits (of DOMA), I think it will find DOMA's pervasive system of discrimination unconstitutional," added Elizabeth Wydra of the Constitutional Accountability Center, a Washington legal think tank.
Elizabeth Wydra, the chief counsel for the Constitutional Accountability Center, gives Bill her predictions for DOMA and Prop 8. Wydra says, “i think DOMA is going down, and it couldn’t happen to a better statute.” However, she thinks that Prop 8 is more difficult to predict because of the “hemming and hawing” the Justices are doing to avoid the case. Wydra stresses the fact that the biggest job for Supreme Court Justices is “to apply the constitution.”
Doug Kendall, the president of the Constitutional Accountability Center, a liberal legal advocacy group, compared the potential impact to the 1967 case Loving v. Virginia, which declared discrimination against interracial couples unconstitutional. “The country moved on,” Kendall recalled.
CAC Civil Rights Director David Gans discusses the week's marriage equality cases at the U.S. Supreme Court with Frank Knapp on U Need To Know radio.
CAC Chief Counsel Elizabeth Wydra joined Tim Farley to discuss the marriage equality arguments before the U.S. Supreme Court.
“A majority of justices today appeared to regard DOMA for what it is: a pervasive program of discrimination that changes 1100 laws and touches every aspect of life,” said Judith E. Schaeffer, the vice president of the liberal-leaning Constitutional Accountability Center.
After the argument was over Judith Schaeffer, vice president of the liberal Constitutional Accountability Center said, “A majority of justices today appeared to regard DOMA for what it is: a pervasive program of discrimination that changes 1100 laws and touches every aspect of life."
Elizabeth Wydra spent the past two days watching attorneys argue about same-sex marriage. It was, the appellate advocate said, a "Super Bowl of Supreme Court arguments" featuring major stars including Paul Clement of Bancroft and deputy solicitor general Sri Srinivasan.