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Next steps on DOMA, Prop 8 cases
June 21, 2012
By Scottie Thomaston
As Jacob wrote this morning, the Republican-led House, leading the defense of DOMA through the Bipartisan Legal Advisory Group (BLAG) is preparing a petition for certiorari to the Supreme Court asking the Justices to review Massachusetts v. HHS/Gill v. OPM. They have said the petition will be filed by the end of June. The Justices are likely to begin their summer vacation at the end of next week, and they’ll return in October. Sometime in October the Justices will hold a conference to go over petitions for certiorari and decide which ones they will grant for review by all nine Justices. It only takes four votes to grant review, but politics and strategy can often play a role in cert grants. As SCOTUSBlog pointed out yesterday, “These Justices [in an ideologically-divided Court, as opposed to an ideologically similar one] have fewer incentives to work together, are more skeptical of their colleagues’ goals, and therefore are more apprehensive to hear and decide cases.” Justices might not want to ask the full Court to review a case, fearing a result that is contrary to their beliefs in the legal principles in certain cases. And all sides will weigh in on whether the Court should grant review in the case, so the Justices could be swayed by those response briefs.
On the other hand, as Jacob suggested, the Court has a strong incentive to review the challenge because of “the significance of the constitutional issue at hand and the ever-inceasing number of challenges to DOMA being filed across the country[.]” This is an appellate court’s ruling that upholds a district court’s opinion striking down a federal law that directly impacts 1,138 other federal laws. And letting the opinion stand would leave a federal law inoperable in one circuit while it would still apply in the others, at least the few circuits where gay people currently are legally married and thus DOMA applies. It’s hard to imagine that the Supreme Court would not want to review the First Circuit’s opinion.
Another option for the Court would be to hold the petition for certiorari until another DOMA challenge is heard by an appeals court – likely Golinski v. OPM in the Ninth Circuit (that case will be argued in early September), or Windsor v. US in the Second Circuit. The Court could wait to see if there’s a “circuit split” – where one circuit upholds the law and another strikes it down – or it could wait to consolidate one DOMA challenge with others.
If the Court looks at the cert petition in October and grants it, they will then put the case on their calendar and set a briefing and argument schedule. Typically, this means that oral argument will take place within about four months or so. By then all the briefing will be completed and the Justices would have what they need to decide the case. If everything happens on this typical schedule, we should expect a decision on the constitutionality of the Defense of Marriage Act in late June 2013. Traditionally, the Court recesses by July 4, but generally they finish releasing their final decisions during the last week of June. (This year, for example, the decision on health care is expected at the end of next week, on what is widely thought to be the last day of the Term.)
Otherwise, if the Court outright denies review of the case, the First Circuit’s decision stands and DOMA is unconstitutional as applied to plaintiffs and likely in the entire First Circuit jurisdiction. The Supreme Court would have to take up another DOMA challenge for a uniform ruling on the law’s constitutionality.
And if the Court holds the case, we will be waiting for one or more of the other challenges to be decided by an appeals court. Right now, since Golinski is on an expedited schedule and will be argued in September, it seems to be the closest to a decision at the appellate level. But the appeals court won’t have to rule in any specified time frame, so even after the case is fully briefed and argued, it could drag on for quite awhile.
Another case to keep in mind is the challenge to Proposition 8, Perry v. Brown. The Ninth Circuit Court of Appeals decided that it wouldn’t rehear the case with an 11-judge panel, known as an en banc panel, so the next step would either be to attempt what’s called a “super en banc” panel – with all of the Ninth Circuit judges reviewing the case, an unlikely scenario that is rarely if ever used – or to petition for certiorari at the Supreme Court. Andy Pugno, counsel for Protect Marriage, the group defending Proposition 8, says they are petitioning for certiorari, “We will promptly file our appeal to the nation’s highest court and look forward to a positive outcome on behalf of the millions of Californians who believe in traditional marriage[.]”
It is expected that, since the Justices will be on vacation until October, both petitions – DOMA and Prop 8 – will be looked at around the same time, and the Justices could hear one or both cases. There is speculation that if the Supreme Court takes both cases, they could be heard on the same docket, on the same day. Though, it’s still not certain the Court would grant review of Perry, because the Ninth Circuit’s opinion is very specific to California and would likely not have much impact outside of that state.
If the Court hears both cases, opinions in both would be expected in June 2013. If it declines to review Perry following the October conference, the Ninth Circuit’s decision will stand and marriages will resume in California immediately, but the opinion won’t have any national implications, and could only be cited as Ninth Circuit precedent.
For now, we’re waiting to see what happens in Golinski v. OPM, and we’re waiting for the actual filing of the cert petitions and the October conference.
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18 Comments Leave a Comment
1.
truthspew | June 21, 2012 at 10:45 am
Regardless of what the U.S. Supreme Court does, I know the federal case against the State of Rhode Island and Providence Plantations will proceed on the basis that civil unions are a separate but equal provision of RI Law. Should be fun to watch!
2.
Carpool Cookie | June 21, 2012 at 10:50 am
It would be such a blot on U.S. history if SCOTUS declined to hear DOMA cases until that one in the pipeline where the wife had to pay $300,000 in extra taxes when her wife died. (I'm not saying that's likely…I'm not familiar with where that is in the lineup.)
But sadly, I can kind of see the U.S. court system schreeching on their brakes and saying, "Wait! This has to do with MONEY, now! Let's hear it."
3.
Jamie | June 21, 2012 at 11:09 am
Gill is about money as well. Some of the plaintiffs were denied benefits from the government. It's not as big a chunk of money, but that's still the issue.
4.
Amanda | June 21, 2012 at 12:08 pm
Anybody have an idea WHEN in October the decision by SCOTUS to hear the cases would happen? Early….late? Any precedent here from before?
5.
Carpool Cookie | June 21, 2012 at 12:31 pm
The $300,000 figure IS a big wakeup call as to what can be involved, and it's hard for the h8ers to say why a same sex spouse should have to pay that when straights don't have to…..it's just sad to me that that might be the weightiest argument, for some judges.
But, who knows what will ultimately sway them.
6.
Tyler O. | June 21, 2012 at 1:01 pm
Here's a question: What if SCOTUS decides to hear Gill and Romney wins come November? Assuming oral arguements take place sometime in the winter, would his Solicitor General supercede BLAG and take up the duty of defending it in front of the court?
7.
arjay1951 | June 21, 2012 at 1:16 pm
It is reading tea leaves to guess, but fools rush in . . .including myself.
Typically, the First Monday in October is when they hand down decisions either in favor or against a petition for cert that has been filed and briefed on the issue as to whether to grant cert. The question at that point is whether the decision of the Court below shows a dispute between the various circuits (which only the Supremes can resolve), or contravenes clearly established cases of theirs. In the latter class, summary reversal (without additional briefs and without oral argument) is often their response: they remand the case to the Court of Appeals for reconsideration in light of the specific case(s) of the Supreme Court.
If they decide by a vote of four justices that they want or feel they should review the lower court opinion more in depth, they typically grant cert. (essentially a petition to request the intermediate court to certify the official record from below so that they may review it more in depth). If that happens, there is another round on briefing specifically addressing the specific questions presented by the parties, or, rarely, the Supreme's own statement of questions. When cert. is granted, a timetable starts for the parties to submit their briefs, and when that is concluded, usually, only then is the matter set down for a definite date for oral argument.
The widespread predictions of a decision by June, 2013 is based on the fact that usually adjourn for the summer just before the 4th of July.
A difference between the petition for cert. (or, sometimes, cross petitions for cert) and briefs on the merits are pretty significant, although they overlap. Why use one chance to make your argument for the case to be granted when you can make an extra brief on the merits?
The petition for cert. will probably set forth both that there is a conflict between the Circuits; in the DOMA case, the petitioners (generally the loser below) will probably try to find precedents from other circuits which are contradictory (for example, that the First Circuit's decision striking DOMA contradicts another circuit's ruling that DOMA is constitutional, if there were any such decision). If cert. is granted, the central issues come to the forefront (for example, whether DOMA exceeded Congress's powers and/or whether the statute violates equal protection).
Their are myriad other possibilities, of course. I still believe that Prop. 8 case was so narrowly decided (the legislature/people cannot restrict rights previously they previously"granted"), that the liberals would attempt to avoid taking on the issue, despite it's national importance.
The conservatives might also vote to deny cert., particularly if they decide to grant review of DOMA. Four votes to review, and usually five to decide. If one justice has recused himself/herself or is unable to participate, the rules remain the same. Ultimately, Kennedy is the cipher in all of this if all the other justices participate.
Note that their is nothing to prohibit the Court from delaying a decision whether to grant cert. until after the election. Then everything takes an even more complicated narrative.
8.
devon | June 21, 2012 at 1:28 pm
I would assume that should Romney win, he would order DOJ to begin defending DOMA again.
DOJ and BLAG would essentially be working together at that point.
9.
mtnbill | June 21, 2012 at 1:29 pm
The new Solicitor General or Attorney General likely would not take office until the third Monday in January, (after Romney was sworn into office). However, I think both positions require Senate confirmation, so an acting official would be in place until the positions are filled. How long the process takes will also depend upon which party controls the Senate.
10.
arjay1951 | June 21, 2012 at 1:40 pm
Another unknown. Most often, if the constitutionality of a federal statute is challenged and the SG has not briefed the matter, the Supremes ask for a brief from him or her. With a Romney election, the timetable for setting the matter down for oral argument would likely be later. Again, cases at this level are not general set for argument until all briefs are submitted. The SG could alternately ask that s/he be substituted or added to counsel of record and effectively control further briefing and arguments.
The instant case is, as far as I remember, one of the first times an administration has refused to defend a statute of Congress openly.
11.
Sagesse | June 21, 2012 at 2:39 pm
@
12.
Bill S. | June 21, 2012 at 4:06 pm
Wait…has such a case been lodged? I'm guessing you're also from Rhode Island (and Providence Plantations) as you know the full name of our state.
I have been saying for a while now that we will NOT get marriage equality through our legislature, despite it being almost entirely controlled by Democrats. They are incompetent and owned by the Catholic church.
We could have a federal lawsuit not based on a right to marry but on separate-but-equal basis alone and which would not have to be appealed as our governor supports marriage equality.
13.
B_Z | June 21, 2012 at 7:22 pm
Conversely, what if Obama is reelected and the Democrats win a majority of the House (and therefore of BLAG)?
14.
TomTallis | June 21, 2012 at 7:36 pm
I think that the SCOTUS will deny cert. in the Prop 8 case. You are right, it's too narrow, it only applies to California, and the issue isn't yet "ripe" (although it's ripening fast!) yet for SCOTUS review. Even if the SCOTUS were to grant cert. and then uphold the 9th circuit decision, it would make no difference in the rest of the country, so there is really no federal question.
15.
Don | June 21, 2012 at 7:42 pm
I take a different position of whether or not the SCt will look at the Prop 8 case. Very briefly, Prop 8 was about gays having certain benefits which were subsequently taken away only from them and no one else (like I said, it's brief). There is the Arizona case of Diaz v. Brewer handed down recently by the 9th Circuit which held that Arizona could not take away previously held benefits from gays while allowing the benefits to straights to continue. In addition, there are a number of Universities and Municipalities across the US who are doing the same thing.
If the SCt took up the Prop 8 case, wouldn't they be able to deal with all of this all at once?
16.
Mike in Baltimore | June 22, 2012 at 6:03 pm
Typically, SCOTUS begins a session on the first Monday in October, and typically doesn't hold any conferences to decide whether to accept appeals until the first Friday after the first Monday.
For the SCOTUS session beginning this October, however, the first conference to decide hether to accept appeals or not occurs on Friday, – Monday, September 27 this year. And the time for appeals will have expired prior to September 24, so SCOTUS will either have the appeals prior to September 24, or there will not be an appeal.
How does that change the above scenario?
17.
MightyAcorn | June 23, 2012 at 9:08 am
Well, on the legal level, marriage *is* largely about money and property rights–benefits, avoiding probate, community property, inheritance, and the like. And I don't think we want this particular court chiming in on the worthiness or human rights of gays to marry…we know what Scalia will say.
18.
MightyAcorn | June 23, 2012 at 9:12 am
I hope you're right Tom, but I have a funny feeling they may grant cert so they can rule on whether or not initiative proponents in state races have federal standing. My fear is they'll then kick it back to the Ninth, further delaying the return of marriage equality to California.
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