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Prop 8 at the Supreme Court: what to expect as the high court reconvenes
September 24, 2012
DOMA trials Prop 8 trial Supreme Court
By Jacob Combs
Today is the first Supreme Court conference for the Court’s new session, which means that the Justices could decide today if they will take up the legal challenges to Prop 8 and DOMA’s Section 3 sometime in their next term. As of the time this post published (11 a.m. Eastern time), the Court’s docket showed that both the Prop 8 case (now called Hollingsworth v. Perry) and the DOMA case Windsor v. USA had been distributed for today’s conference, when the Justices will confer and vote on whether they will review the case. The votes of four justices are required for a case to be heard by the Court.
I spoke with the Court’s Public Information Office this morning, and was informed that even though the docket notes that the cases were distributed for today, cases are commonly rescheduled for later conferences. When that occurs, the docket website will be updated with a new conference date. (The docket for the Prop 8 case can be found here; the Windsor docket is here.) We’ll be following this story as it develops today and will report here if the cases are rescheduled for a later conference.
Over at The Advocate, E.J. Graff has a good overview of the marriage cases currently before the court, which number five in total: the Prop 8 case (Perry) and four DOMA cases (Gill/Massachusetts, Golinski, Windsor and Pedersen). As Graff notes, the four DOMA cases make similar legal arguments but have important procedural distinctions. The Gill/Massachusetts case has been heard and decided on by the First Circuit, which found DOMA unconstitutional, but the other three DOMA cases have all been petitioned to the Supreme Court before their hearings before the circuit courts to which they belong.
Why? Graff notes that two main points of speculation on the issue. First, because Justice Elana Kagan served as the Obama administration’s Solicitor General when the Gill/Massachusetts cases were being heard, there is a possibility she would recuse herself should the cases come before the high court. (Gary Buseck, the legal director of GLAD, which is spearheading the cases, doesn’t think she needs to, but notes that she might.) Second, the federal government might have asked the high court to hear Golinski for the sake of consistency: the Justice Department argued in defense of DOMA and later against it in the Gill/Massachusetts cases, but always argued against the law in Golinski.)
Of course, anything that anybody writes predicting what will happen before the high court is speculation. But as Graff points out, it seems unlikely that the Court would be ready to issue a broad ruling in the Prop 8 case bringing marriage equality to the nation. It would also seem like a strange move for the Court since the Ninth Circuit explicitly narrowed its ruling to apply only to California, and the legal issue before the Court in its current form is whether California’s withdrawal (through a ballot initiative) of gay and lesbians citizens’ state constitutional rights violates the U.S. Constitution. For that reason, it’s good news if the Court declines to hear the Prop 8 case (and marriages would be able to resume in California); it might not be a great sign if the Court agrees to take up the case.
On the DOMA count, as Graff writes, “everyone I interviewed believes that the Supreme Court will probably–note the probably–strike DOMA section 3.” (Section 3 is the part of the law that limits marriage to heterosexual couples in the eyes of the federal government.) Not surprisingly, legal observers generally agree that the case will come down along the usual party lines: the four liberals (Ginsberg, Breyer, Kagan, Sotomayor) will strike down the law; the four conservatives (Roberts, Scalia Alito, Thomas) will uphold it. The deciding vote will reside with Justice Anthony Kennedy, who wrote the Court’s powerful opinions in the landmark gay rights cases Romer v. Evans and Lawrence v. Texas. Because of that history, there is good reason to believe he’ll vote against DOMA. Here’s Lyle Denniston of SCOTUSblog on the matter (via Graff’s Advocate piece):
“Kennedy, I believe, does not want the court to do anything that he would deem to be undermining his opinion in Lawrence (in which he authored the opinion striking down Texas’s sodomy laws). A ruling to uphold DOMA, I believe, would look to him as a repudiation of not only Lawrence but also his states’ rights/federalism jurisprudence.”
Could the vote hold some surprises? Perhaps–there is speculation that Chief Justice Roberts could vote to strike down DOMA too, especially if Kennedy does as well. Roberts has said he wants the Court to craft opinions that are not decided on narrow 5-4 lines, and he may want the Court to be on the right side of history on this one. Graff also says that “one of [her] experts,” who won’t speak on the record about it, thinks Justice Thomas may come down against DOMA as well. In Lawrence, Thomas wrote that Texas’s ban against sodomy was “uncommonly silly,” although he voted to uphold it. But predicting the famously reticent Thomas’s opinions is a dangerous game.
Many observers believe that the Supreme Court will put off making any decision on the DOMA cases until later this fall, after the election, when all four of the cases have been fully briefed at the high court. The Prop 8 case could very well be pushed off and considered for review with those cases in a few months. As BuzzFeed’s Chris Geidner reports, the next conference after today’s is on October 5, but the Windsor case and the Pedersen case won’t be fully briefed until October 29. The next conference after that at which the cases could be considered would be November 20. We’re on the brink of big news on the marriage equality front, but it might not come quite as soon as we expected.
Update: SCOTUSblog reports that Court today announced new guidelines for the release of orders for this term. According to the Court’s announcement, orders will now be released at 9:30 a.m. Eastern time. Previously, they were released at 10 a.m.
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68 Comments Leave a Comment
1.
MightyAcorn | September 24, 2012 at 8:45 am
Sigh…waiting, hoping.
Thanks for keeping us apprised, we all want to hear everything as soon as it happens and we know we'll get the skinny here. Will now sit vigil until news strikes…..
2.
Anthony | September 24, 2012 at 8:48 am
So if they deny cert today for Prop 8, will be find out on the case's page on the SCOTUS website?
3.
Reformed | September 24, 2012 at 8:57 am
so, prop 8 could be resolved today then? however likely or unlikely.
4.
Anthony | September 24, 2012 at 9:01 am
Well I live in CA, so this directly affects me. So freaking nerve wrecking!
5.
Jacob Combs | September 24, 2012 at 9:11 am
Prop 8 could be resolved today, but we probably wouldn't hear about the review denial until next Monday. However, it does seem like signs are pointing towards the decision not being made today. Any updates about the case will be posted on the docket page on the Court's website.
6.
Stefan | September 24, 2012 at 11:06 am
"However, it does seem like signs are pointing towards the decision not being made today"
People keep saying this yet there are no explicit sources backing it up (and Buzzfeed doesn't count). If anything they may put off on the DOMA cases until they are all conferenced but Perry v Brown will probably be resolved after this conference since it's unrelated to the DOMA cases.
7.
Judy | September 24, 2012 at 11:12 am
From a different, also reputable, source: Tuesday we could hear that they will hear the case. If we do not hear that they will hear it, then we cannot draw any conclusion until next Monday, when they will declare which cases they will NOT hear. (Of course, it could be put off for later.) So, either tomorrow we learn that we're in for a Supreme Court fight, or next Monday we learn Prop 8 is dead. (Or, we learn it is put off for later.)
8.
Anthony | September 24, 2012 at 11:18 am
Why can't they just announce they denied cert tommorow? What's with all this putting it off for later crap?
9.
Carpool Cookie | September 24, 2012 at 11:19 am
(munching cookies)
Oh dearie me. Oh dearie, dearie me…such uncertainties!
(opens ice cream)
10.
davep | September 24, 2012 at 11:53 am
It's just the nature of the process – it has a few separate steps. First they announce which cases they WILL take up in this session. Then in a separate document a few days later, they announce which cases will be denied cert, which they are remanding back to the circuit court for another review etc.
11.
Bob | September 24, 2012 at 12:04 pm
waiting!!!! watching!!! from Canada with love
12.
Anthony | September 24, 2012 at 12:06 pm
I envy you guys in Canada. You guys just legalized it, no questions asked. You're always ahead of the game when it comes to stuff like this.
13.
Anthony | September 24, 2012 at 12:07 pm
Ugh! All I want to see under the case docket is a big fat PETITION DENIED, and then I can finally be proud I live in a state with full civil marriage.
14.
Heidi | September 24, 2012 at 12:20 pm
Darn phone! .. I Clicked the wrong review. Really liked your post!!
15.
Gregory in SLC | September 24, 2012 at 12:24 pm
good idea…..have some nice Butter Pecan in the freezer…
16.
davep | September 24, 2012 at 12:39 pm
Every time we reach one of these major milestones in the Prop 8 trial I start thinking about the first day that same sex couples were able to marry here in California in 2008. Sometimes I get very preoccupied with the legal details but at times like these I am reminded what this is all really about. I just found an old comment that I posted here a couple of years ago on the day Argentina achieved marriage equality and I wanted to share it again:
I could watch that video all day. Wonderful! It reminds me very much of the day here in California when they first announced that SSM was legal and a similar celebration erupted in front of the San Francisco City Hall. And the celebration shortly after that on the first day that the marriages started. I took the day off work to just spend the whole day at City Hall, celebrating with the crowd outside and then going inside the Rotunda to cheer on the couples who were getting married every few minutes. Parents and grandparents cheered for their sons and daughters. Small children laughed and celebrated as their parents were finally able to marry. A string quartet just showed up in the Rotunda and started to play, providing free wedding music for all the couples. What a day that was. A huge crowd filled with absolute joy, from early morning until they finally had to close City Hall late that evening.
I look forward to the next time we celebrate here, when Prop 8 is finally ended and this shameful chapter in California’s history comes to an end. My hope is renewed again by scenes like this in Argentina. This reminds me what marriage equality felt like and what it will feel like when we have it again.
7/15/2010
17.
nightshayde | September 24, 2012 at 1:09 pm
I have silk flowers — I just need to work on making the bouquets. If the SCOTUS decides to hear the Prop8 case, I have a while. If they deny cert, I need to get bouquets made withaquickness! I'm hoping to let my daughter wear her adorable flower girl dress (from a wedding she was in last year) & stand up as a flower girl for couples getting married in West Hollywood … and hoping we don't have to wait long, lest she grow out of the dress.
18.
Seth from Maryland | September 24, 2012 at 1:13 pm
this makes me think about the time when just before NY passed marriage equality, we were waiting for the updates an who was going to be the final vote , that was a real special moment on this site
19.
Carpool Cookie | September 24, 2012 at 1:15 pm
I don't think my figure can handle this, if the announcement's delayed too long….!
20.
Carpool Cookie | September 24, 2012 at 1:16 pm
PS: just demolished a small coffee cake…
21.
Anthony | September 24, 2012 at 1:19 pm
I'm really sick of this state by state process though…we're like the only country in the world who has it like this. Every other same sex marriage battle in other countries is always federal!
22.
Kate | September 24, 2012 at 1:33 pm
Nightshayde, that is LOVELY. And I can't think of a better reason than a growing child to get this settled NOW so she can still help out at the weddings!!!!!
23.
Curly momma | September 24, 2012 at 1:38 pm
I meant thumbs up!!
24.
grod | September 24, 2012 at 1:39 pm
Anthony, the reality is 9 decisions in provincial/territorial courts from June 03 to June 05, a non-binding opinion from the Supreme Court, and an act of the federal parliament approved in July 2005 were all part of achieving equality in Canada. When i "legalized", that Act only impacted two provinces and two northern territories where court decisions had not been either declared or initiated.
25.
Gregory in SLC | September 24, 2012 at 1:53 pm
way too long……………..hope 1 year from now it will be just like DADT, prop8 DOMA both history!
26.
Gregory in SLC | September 24, 2012 at 1:57 pm
Hi to both of you!!! xo, Gregory p.s. I've been anxiously awaiting the distribution of nightshaydes's flowers for 4 years. Brings to mind how florist in San Fran area were flooded with people calling in $$$, donating flowers to take to city hall. Looking forward soon to a repeat performance!
27.
ebohlman | September 24, 2012 at 2:03 pm
As grod pointed out in another sub-thread, that wasn't the case in Canada.
28.
Ann_S | September 24, 2012 at 2:05 pm
DaveP, I had forgotten you posting about being there that day. I was there, too, as it was the day my brother and BIL got married. I remember the cheering for every newly married couple, and the celebrations outside, and the joyous atmosphere everywhere. What a wonderful day! If only we had known each other then! But of course we met via this site, well after that day.
29.
Sagesse | September 24, 2012 at 2:08 pm
Still, Grod, to have all that happen between 2003 and 2005 is lightning fast. And it happened in the context of decriminalizing homosexuality in 1969 (!), and a federal Charter of Rights and Freedoms. Canada has one constitution, not a separate one for each of the provinces and territories. Also of note, that 'non-binding opinion' cannot be challenged: if the law that was presented to the Supreme Court of Canada and ruled constitutional is enacted (and it was) it cannot be challenged later on constitutional grounds.
30.
Carpool Cookie | September 24, 2012 at 2:09 pm
These are thorough, established, LEGAL procedure.
It's not like slapping some pre-formed hamburger patty on the grill.
31.
Anthony | September 24, 2012 at 2:12 pm
True, but they legalized it nationwide in the end. You can't have a law like that here in the states that tells which states who they can marry (DOMA is only for recognition purposes). It's all state by state.
32.
NancyH | September 24, 2012 at 2:33 pm
SCOTUS will be directly implicated in allowing a state to have gay marriage OR set precedent for which only a single state is affected. Either way, California wins or 49 states don’t lose.
Prop H8 is going down!
33.
Dan | September 24, 2012 at 2:51 pm
If they are granting cert in Prop 8, we'll know tomorrow. If they denying cert, we won't know until next week. So hopefully, we won't see anything big news on their site tomorrow.
That having been said, I think that in a case like this, where the lower court has found a constitutional violation and SCOTUS is not going to review, it is wrong to delay for a week a cert. denied order. That order should issue immediately so that the ongoing harm can be brought to an end. If it turns out that they denied cert this morning, gay Californians will have endured a week of having their rights violated for no good reason.
34.
Gregory in SLC | September 24, 2012 at 2:51 pm
Yes! Remarkable….very special time for NY state(pride weekend too!) and and on a very personal level:
https://picasaweb.google.com/10447808842394045682…
35.
Anthony | September 24, 2012 at 2:55 pm
So there's absolutely no chance of a "petition denied" appearing on the docket's page on the SCOUTS website tommorow morning?
36.
Kerri | September 24, 2012 at 3:04 pm
We have been waiting in agony, waiting in a state of unknown, waiting in limbo for 4 years! I am one of the 18,000 who got married, but have been waiting for this day to come to know what is happening to our marriage and what will happen to it in the future. Being in a constant state of limbo is quite a pickle of a situation … I want my fellow lgbt folks to be able to be and stay married too! I am a registered officiant too, so I want to marry lgbt folks as well, to see their happy day come true, like mine!
I want marriage equality! This needs to happen now!
37.
davep | September 24, 2012 at 3:10 pm
…. so when we regain marriage equality, let's meet up at City Hall and we can all celebrate together. Anyone who is in the SF bay area or who wants to make the trip to join us, you're invited too! : )
38.
davep | September 24, 2012 at 3:16 pm
Great to hear from you, nightshayde! I remember back then how your comments about making the bouquets for the couples at City Hall had me all misty eyed sitting in front of my computer at work : ) Here's looking forward to soon seeing some pictures from West Hollywood of your daughter being a flower girl, and the happy couples with your bouquets.
39.
Chris in Lathrop | September 24, 2012 at 3:17 pm
Slightly off-topic: when and why did this case become Hollingsworth v. Perry?
I am so on pins and needles!!!
40.
Anthony | September 24, 2012 at 3:18 pm
Your marriage is still valid as a marriage goes. It's just that new same sex marriages can't take place until prop 8 is thrown out.
41.
Mike in Baltimore | September 24, 2012 at 3:28 pm
In other words, 'tradition' is dictating what happens when.
Maybe SCOTUS should discuss 'tradition' with Topol?
42.
cathy | September 24, 2012 at 3:36 pm
hey kerri where do you officiate at if this becomes legal???
43.
Mike in Baltimore | September 24, 2012 at 3:36 pm
'Tradition' is "established, LEGAL procedure"?
By what law? By what rule?
If SCOTUS allows tradition to dictate the how, when and where notice of any type is given, then they are allowing tradition, and nothing else, to tell them how to slap that hamburger patty on the bun or grill.
In the 19th century, SCOTUS decided as many as 1,000 or more cases per year (up to, or exceeding, 150 per month). Today? If they hit 150 cases decided in an entire year, the SCOTUS justices and 'observers' call it a 'busy session'.
44.
Judy | September 24, 2012 at 3:58 pm
Living in California, my partner and I are also on pins and needles, but the big obstacle is DOMA. I have to do our income taxes four times (mine single, hers single, ours weirdly combined, plus state unlike the others). It cost us an extra $2000 last year because we couldn't file as either singles or marrieds. BAH! So, we're just as excited to follow DOMA through the SC.
45.
Judy | September 24, 2012 at 4:03 pm
When the elected officials would not fight this (Governor and Attorney General), the courts allowed the Prop 8 meanies to put in their own defendants, including Dennis Hollingsworth.
46.
Ann_S | September 24, 2012 at 4:03 pm
Par-tay at the big house! 'Neath Willie Brown's golden dome! Can't wait!
47.
Kerri | September 24, 2012 at 4:10 pm
In the Bay Area, I live in SF
48.
Kerri | September 24, 2012 at 4:13 pm
Yes, I realize we will still be married, and goddess-forbid that we would be grandfathered-in if the tides turn the wrong way…But, one never knows what may happen. Regarding the topic of DOMA however, I'd like to see that go because taxes are aNIGHTMARE for same-sex married couples and unfair…
49.
Kerri | September 24, 2012 at 4:16 pm
Here here! I hate tax season! It's a bitch foe same-sex married couples…
50.
Dawn | September 24, 2012 at 4:38 pm
I'm so anxious to see what happens here. I live in AZ which of course is a state that'll never allow me and my partner to marry….but I"m 6mo pregnant now and would like nothing more than to drive across the border and marry my partner before our babies come!
51.
F Young | September 24, 2012 at 4:46 pm
The US is not alone. Brazil and Mexico are going state by state, and it looks like Australia might go that route too.
52.
davep | September 24, 2012 at 5:24 pm
Arizona may get marriage equality sooner than you think. Although the Prop 8 ruling only directly affects California, once it is completely done and gone, people in other states in the 9th circuit will have a much better chance of successfully challenging anti-marriage equality statutes in their own states. If they fail at the state level they get appealed to the 9th circuit where there is a better chance of success because of the previous Prop 8 ruling, and once there's a record of the US Supreme Court deciding not to take up cases about this issue from the 9th Circuit there's a much better chance that it won't get appealed beyond the 9th circuit by the opposition. Just my opinion, of course.
53.
Anthony | September 24, 2012 at 5:56 pm
That's exactly why I'm not getting married until DOMA is thrown out. Until then, I will remain a "single" on my tax returns
54.
cathy | September 24, 2012 at 6:29 pm
hey kerri where do you officiate at if this becomes legal???
awesome i am up in camino placerville area if it becomes legal we will be in touch just a short drive
55.
Mike in Baltimore | September 24, 2012 at 6:40 pm
'Tradition', again?
56.
Marcus | September 24, 2012 at 7:46 pm
Annoyingly, if you want to see them deny cert, you want to see nothing on the page tomorrow. That could mean one of two things–one, it was denied; two, it was put off to decide later. You'll know which of those two next week (Monday from what I've heard, but clearly the Court doesn't bother itself with clocks and deadlines like the rest of the world…).
57.
Marcus | September 24, 2012 at 7:48 pm
When they finally strike it down, file for that money back! If they don't make it easy, contact your Member of Congress and ask them to help. No reason we should be forced to pay more.
58.
Julie C | September 24, 2012 at 8:01 pm
Yup, us, too. We always have an extension, so this is the week I'm picking up all 4 of those returns and paying for them. Sigh. Some day–just 2!
59.
TomTallis | September 24, 2012 at 8:26 pm
And remember that it was Willie Brown and George Moscone who started all of this in California by pushing for the decriminalization of gay sex acts way back in 1975 (the repeal was effective on 1/1/76).
60.
TomTallis | September 24, 2012 at 8:27 pm
There's a chance that we'll be with a whole flock of gay friends at Disneyland next week when we may hear that Prop H8 has been thrown on the garbage heap of history. Fingers crossed.
61.
TomTallis | September 24, 2012 at 8:29 pm
I wish I could agree, but I think that the enemies of gay people (an accurate description, I think) will stop at nothing in each state to prevent equal marriage from happening. Until the SCOTUS rules equal marriage to be the law of the land, this will be fought tooth and nail state by state.
62.
Bryce in KS and DC | September 25, 2012 at 12:07 am
In the beginning, it was Perry v. Schwarzenegger. Then it became Perry v. Brown when Jerry Brown won the gubernatorial election. Then the state did not appeal because the proponents were given Article III standing, and it became Perry v. Hollingsworth. Then Hollingsworth, being the losing side in the appellate court, appealed making Perry the respondent, and voila: you have Hollingsworth v. Perry.
63.
W. Kevin Vicklund | September 25, 2012 at 6:27 am
Hopefully, in five minutes the news will be "no news"
64.
Phillip K | September 25, 2012 at 6:40 am
Constantly hitting refresh over here waiting for orders to come up. Have a meeting in 20 minutes so hope it's done by then!
65.
Phillip K | September 25, 2012 at 6:47 am
Looks like it wasn't granted….
66.
W. Kevin Vicklund | September 25, 2012 at 6:48 am
Yay! No news! Also, Brewster v. Diaz (AZ domestic partnership benefits) and Windsor v. USA (DOMA) not listed as granted.
67.
Mike in Baltimore | September 25, 2012 at 12:36 pm
"Update: SCOTUSblog. . . ."
I thought updates were going to be noted as to time and date of the update being posted?
68.
Lakindu | December 22, 2012 at 10:21 am
questione di gusti non puoi dire quale tiooipgla di gioco pi bella, pertanto ti dico che ai puristi e cio’ agli amanti della serie r.evil piacciono di pi i primi pubblicati quelli zeppi di enigmi e difficolt alle stelle. A me piacerebbe giocare ad un r.evil bilanciato tra enigmi ma quelli tosti e ben fatti e azione ma senza sottovalutare la spettacolarit ecco io questo mi aspetterei da un buon gioco sopratutto da una serie cos importante come r.evil
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