The Year in Review 2012: Justices agree to look at same-sex marriage

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent
Same-sex couple Juan Rivera (L) and Eric Manriquez participate in a "kiss-in" outside a Chick-fil-A restaurant, in the Hollywood section of Los Angeles on August 3, 2012. Chick-fil-A CEO Dan Cathy's comments against same-sex marriage have sparked controversy on the issue. UPI/Jim Ruymen
1 of 2 | Same-sex couple Juan Rivera (L) and Eric Manriquez participate in a "kiss-in" outside a Chick-fil-A restaurant, in the Hollywood section of Los Angeles on August 3, 2012. Chick-fil-A CEO Dan Cathy's comments against same-sex marriage have sparked controversy on the issue. UPI/Jim Ruymen | License Photo

WASHINGTON, Dec. 24 (UPI) -- The U.S. Supreme Court, in one of its last actions of the year, took on the fight over same-sex marriage.

The justices agreed in December to hear a challenge this spring out of New York to the federal Defense of Marriage Act, which denies same-sex couples advantages enjoyed under federal law by heterosexual couples.


They also agreed to hear argument on California's Proposition 8, which says "marriage" in the state is restricted to the union of a man and a woman.

During the past year, the justices narrowly upheld a core provision of the healthcare law -- thanks to the vote of Chief Justice John Roberts -- prepared to deal with affirmative action, the Voting Rights Act and voter ID laws, and managed to avoid directly entangling itself in the November presidential election.


However, all through 2012 hundreds of millions of dollars were spent in "independent" political expenditures, much of it flowing from 2010's Citizens United vs. FEC, a 5-4 high court ruling that removed federal restrictions on such spending.

The Center for Public Integrity, an investigative journalism non-profit operating out of Washington, said more than $1 billion was spent by outside groups by Election Day.

Of all outside spending in the 2012 election, more than $450 million was dedicated to the presidential election with more than $350 million spent helping Republican presidential nominee Mitt Romney and about $100 million spent to help President Barack Obama, the center said.

And in late June this year the same 5-4 Supreme Court majority slapped down Montana's restrictions on corporate political contributions.

The message from the narrow majority in the Montana case was clear: Congress does not have the authority to ban independent political contributions from corporations, and neither do the individual states.

The justices indicated in late November they may not be through torturing the Affordable Care Act, commonly known as Obamacare, after all.

A 5-4 majority ruled last June that the individual mandate -- the requirement that individuals without it purchase insurance or pay a fine collected by the Internal Revenue Service -- is constitutional, thanks to Roberts' surprising defection from the five-justice conservative bloc.


Led by Roberts, the narrow majority said the penalty survived constitutional muster because it could be considered a tax and a legitimate exercise of congressional power.

However, the majority outlawed Obamacare's required extension of Medicaid, something that would have cost the states dearly.

And the majority, joined by the dissenters, said the Anti-Injunction Act -- which bans suits designed to prevent the collection of a tax, with some exceptions -- did not prevent challenges to the healthcare act.

Virginia's Liberty University challenged the individual mandate and the act's requirement that school insurance be in a federally approved form. The school did not specifically attack requirements on contraception or abortion.

The 4th U.S. Circuit Court of Appeals in Richmond ruled against the school's suit, and in June the U.S. Supreme Court refused to review.

But in late November, in an unsigned order, the justices threw out that rejection, and directed the appeals court to rehear the case in light of National Federation of Independent Business vs. Sebelius, the landmark Obamacare case.

Liberty contends Obamacare violates its religious freedom. The Liberty case could end up in the Supreme Court.

Also in November, the justices agreed to hear the challenge of an Alabama county to Section 5 of the Voting Rights Act, a core provision which says all or parts of 16 states, mainly in the South, have to get permission -- or "preclearance" -- from the U.S. Justice Department or a three-judge federal panel in Washington to make any changes in how people vote in their jurisdictions, no matter how innocuous.


At issue is whether Congress exceeded its constitutional authority by re-enacting Section 5 in 2006 -- a "prophylactic" measure that restricts what may be constitutional activity on the chance that it may be unconstitutional activity, and only in venues with a history of suppressing the voting rights of minorities.

If the U.S. Supreme Court outlaws Section 5 -- a distinct possibility -- it would be a major victory for state Republicans who push voter identification laws.

And speaking of voter ID laws, the justices agreed in October to hear argument on Arizona's law requiring voters to show proof of U.S. citizenship before registering.

An eventual Supreme Court decision in the Arizona case might help shape the voting landscape of the future.

Republicans who have sponsored such laws say they are necessary to prevent widespread voter fraud. Democrats say Republicans have presented no evidence of widespread fraud, and the laws are only a thinly veiled attempt to suppress the vote of minorities, the elderly and the poor -- those least likely to have a driver's license and most likely to vote Democratic.

Earlier in October, the justices heard argument on the University of Texas' affirmative action admissions policy.

More than three-fourths of freshmen enroll at the University of Texas through a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the rest, the school considers a number of factors, including race.


An appeals court upheld the affirmative action program, but a majority of the Supreme Court expressed skepticism from the bench during argument, perhaps signalling that affirmative action is living on borrowed time.

Last June, the justices, in a 6-3 vote, struck down a law that made it a crime to falsely claim to have won medals for military service.

Also in June, the high court ruled 5-4 that mandatory sentencing of teenage killers to life without parole is unconstitutional. Justice Anthony Kennedy joined the four-member liberal bloc to form the majority. The court's remaining four conservatives dissented.

And in the same month, the justices ruled unanimously to set aside three violations incurred by ABC and Fox for "indecency."

The majority opinion by Kennedy said the Federal Communications Commission "failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.

"Therefore, the commission's standards as applied to these broadcasts were vague, and the commission's orders must be set aside," the court said.

Justice Ruth Bader Ginsburg filed an opinion concurring in the judgment but distancing herself from Kennedy's reasoning. She said the court's main precedent on the issue, 1978's FCC vs. Pacifica should be given another look.


A few weeks earlier, the court declined to second-guess anti-terrorism policies, denying appeals by seven Guantanamo Bay detainees.

And in another ticklish case, the justices ruled 5-4 in April that most prisoners can be strip searched by jail officials.

The last scheduled workday of the year for the high court was Dec. 10. They're scheduled to be back from Christmas vacation at least by Jan. 4 for a closed door conference.

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