Leave a Comment Sagesse
Supreme Court has not taken action on Prop 8 case
September 25, 2012
By Scottie Thomaston
The Supreme Court just issued its orders from yesterday’s “long conference”, the conference that takes place after the Court’s summer recess. There were a few cases granted, but neither Perry, the Prop 8 case, nor Windsor, a DOMA case, were granted today. And as of this writing, the Supreme Court docket for both cases still show that the case was distributed for this conference. Whether the Justices re-listed the case for another conference or are planning to deny a writ of certiorari to hear the case is uncertain at this point.
Another case affecting gay rights, Brewer v. Diaz was also ready for the conference yesterday, but the new order list does not show a grant of certiorari in that case either. There, Governor Brewer is challenging a preliminary injunction before a trial is heard on the constitutionality of a new law taking away benefits from same-sex domestic partners in Arizona.
There are several cases challenging Section 3 of DOMA, but the only one that was ready for yesterday’s conference was Windsor v. USA. The Court still has to act on the Gill/Massachusetts case, the Golinski case, and the Pedersen case. In all those cases, both the plaintiffs and the Justice Department filed petitions for a writ of certiorari (except Golinski, where only the Justice Department filed one), and in Windsor, Pedersen, and Golinski, they filed before judgment by the appeals court, telling the Supreme Court that the cases raise nationally important issues. Some of those cases won’t be ready until the conference on October 5 and some later than that.
Update (Jacob): Just wanted to respond to something I noticed in the comments that I think has been a cause for some confusion. The actual text that appears on the Supreme Court’s docket is the following: “DISTRIBUTED for Conference of September 24, 2012.” I don’t mean to nitpick too much (disclosure: I was an English major in college, so I’m prone to over-analysis) but all that means is that the materials were handed out so that it could be considered in the September 24 conference. That doesn’t mean it definitely was, and a new docket listing would only show us that it had been re-distributed. Those notes on the docket aren’t an assurance that the Court is considering it on that specific day.
Update 2 (Scottie): The Supreme Court’s Public Information Office tells me that on Monday, the rest of the orders will be released, and that is when we are likely to find out whether it was denied or re-listed.
Update 3 (Scottie): Lambda Legal’s Jon Davidson tells me:
The Supreme Court’s today issued a brief list of cases in which review has been granted, which did not include the Perry case, the Windsor challenge to Section 3 of DOMA, or our Diaz v. Brewer case involving domestic partner health insurance benefits for Arizona state employees. The court did not yet issue a list of cases in which review has been denied or in which it has decided to defer making a decision. That list is expected on Monday. There could also be additional cases in which the Supreme Court has decided to grant review at this time that will be announced on Monday.
But, I heard yesterday that the Supreme Court had actually decided not to discuss the Perry case at yesterday’s conference of the justices, so I do not expect anything substantive to be announced about Perry on Monday. I have not heard anything at this point about exactly when the Supreme Court will discuss among themselves whether or not to grant review in the Perry case, or whether or when it will let us know when it will be discussed. The Court does not provide its reasoning regarding when it is making its decisions about most of these matters, and its discussions are kept highly confidential.
At this point, it’s anyone’s guess about exactly when the Supreme Court will announce whether or not it will grant review in any of these cases. I have heard speculation that the Court might wait to decide whether or not to hear the Perry case until it decides whether or not to hear one or more of the challenges to Section 3 of DOMA.. I’ve also heard speculation that the Supreme Court may not decide which, if any, of the challenges to Section 3 of DOMA to hear until the briefing is final in all of those challenges (including the Department of Justice’s most recent requests that the Supreme Court hear the Pedersen case, if it doesn’t grant review in Gill/Massachusetts or Golinski and that the Court hear the Windsor case if it doesn’t grant review in an of the other cases). That briefing will not be done until the latter part of October and the Supreme Court therefore may not issue any announcement about what it will do in any of these cases until after the election. Again, this is speculation, as the Supreme Court keeps its deliberations about which cases to hear secret.
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
60 Comments Leave a Comment
1.
Kevin | September 25, 2012 at 6:44 am
Let's keep our fingers crossed
2.
dong90806 | September 25, 2012 at 6:45 am
Any news on Brewer v. Diaz, the Arizona benefits case?
3.
Scottie Thomaston | September 25, 2012 at 6:46 am
Nothing yet. Nothing on the order list and the docket hasn't changed.
4.
James A. Tuttle | September 25, 2012 at 6:48 am
Another weeks wait…ARRRGG!!! Thats ok, I suppose I figured we would have to wait anyway. I really hope they deny cert. next week. It would really be wonderful.
5.
James A. Tuttle | September 25, 2012 at 6:49 am
Wait…what happens if they deny hearing the Windsor Case? is DOMA struck down? Sorry I havent been following that nearly as close as I should.
6.
thatdr | September 25, 2012 at 6:50 am
Does the court also release a list with denied writs, or is that clear at the end of the season…?
7.
Kathleen | September 25, 2012 at 6:50 am
Here's the ORDER:
http://www.scribd.com/doc/106915423/order
There's nothing on Brwer v. Diaz either.
8.
Scottie Thomaston | September 25, 2012 at 6:52 am
They will release denials but not on the same day.
9.
Guest | September 25, 2012 at 6:52 am
Yes, the denied writs are listed on an order (the same one with grants, if I recall.)
10.
Robert West | September 25, 2012 at 6:53 am
the general rule if they deny a petition for cert is that the lower court decision stands but only has precedential value in that circuit. which is to say: the outcome is that DOMA is struck down *in part of the country* but not in other parts of the country.
That isn't really a tenable outcome, which is one reason constitutional lawyers generally expect this case to get picked up (even if Perry isn't … because the circuit court decision in Perry doesn't address gay marriage in general, just the unusual case where gay marriage is first granted and then revoked).
11.
Derrick | September 25, 2012 at 6:54 am
They could theoretically release another order mid-week, yes? It says in the explanation about 9:30am releases that if they are going to release an order when they are not sitting, they will give a day's warning. Maybe since it's such a big deal to CA they will warn the press? Because am I right that a denial of cert means immediately marriage equality or is there some waiting period or return to a lower court???
12.
Robert West | September 25, 2012 at 6:54 am
they do release a list with denied writs. usually what happens is that on the first hearing day of the term, they release a long list of denials. so on monday we can see if these cases have been denied or if they're still in limbo.
13.
Knz | September 25, 2012 at 6:55 am
Oh boy, showdown time.
Let us pray that SCOTUS decides that Perry v. Brown as decided by the 9th Circuit was construed narrowly enough to deny cert – allowing marriage equality to resume in California, and setting some helpful US federal judicial precedent.
14.
Rusty | September 25, 2012 at 6:56 am
fingers crossed here in Kentucky!!!
15.
Derrick | September 25, 2012 at 6:58 am
So if Perry wasn't in the grants, are we to assume it will be in the denials on Monday? Because they were conferencing yesterday on it, yes?
16.
Knz | September 25, 2012 at 7:00 am
If SCOTUS denies cert for the Prop 8 case, there will be a short wait (as the 9th Circuit Court vacates the stay, counties get ready, etc) before marriage equality returns to California.
17.
Scottie Thomaston | September 25, 2012 at 7:05 am
No, it could either be in the list of denials, or could be moved to a later conference.
18.
Scottie Thomaston | September 25, 2012 at 7:05 am
The denials are listed in a week, though.
19.
Jacob Combs | September 25, 2012 at 7:08 am
To take a leaf out of Donald Rumsfeld's book–we now have one thing we know and one known unknown.
We know that the Supreme Court didn't choose to take up the Prop 8 case yesterday. That does't mean they didn't choose it period, just that they didn't choose it yesterday.
The known unknowns is: did they consider the case at all yesterday? (We won't know until we either hear about a cert denial on Monday or a note on the docket saying the case has been redistributed for another conference).
So at this point, we have no reason to believe that cert has been denied. Also, I have a hunch that we won't get a specific order just telling us that there was a cert denial in Perry. But that's just speculation.
20.
Brian | September 25, 2012 at 7:13 am
Does anyone know if the docket would be updated to show a redistribution for another conference before the denial list comes out next week?
21.
JimR | September 25, 2012 at 7:23 am
Can we still hold out any significant hope for one or more of the DOMA cases being taken up this year?
22.
Larry | September 25, 2012 at 7:28 am
I would think so, since they only considered Windsor, which they might reject as not being ready since it wasn't decided by an Appeals court. In fact, I'm confused as to how Windsor beat Gill/Massachusetts to the conference. Gill was decided by an appeals court, and it was appealed before Windsor was.
23.
Stefan | September 25, 2012 at 7:29 am
Absolutely. The court is likely waiting on all the DOMA cases to be conferenced before deciding which ones to take. The general consensus is that will hear at least one.
24.
Scottie Thomaston | September 25, 2012 at 7:30 am
It is exceedingly likely the Court will hear a DOMA case. I'm almost certain they will.
25.
Gregory in SLC | September 25, 2012 at 7:31 am
this is what I'm banking on!
26.
John | September 25, 2012 at 7:34 am
Why would the SCOTUS put of denying or accepting cert. with the prop 8 case until after the elections? Prop 8 is different than the DOMA cases.
27.
Brad | September 25, 2012 at 7:38 am
Fingers crossed here in CANADA…i can hardly believe that America has not allowed gay marriage nation wide yet. Come on America, catch up already…sheesh!
28.
Anthony | September 25, 2012 at 7:42 am
We're always 20 years behind Canada, if you haven't noticed already lol.
29.
Seth from Maryland | September 25, 2012 at 7:45 am
an now we wait lol , i feel this is going to be the longest 6 days ever, as for the doma case , i think they wait untill all of the cases make it to the supreme court so they can conference them together
30.
Chris Gable | September 25, 2012 at 7:46 am
The release of denials and reschedulings comes the Monday after the conference, so October 1, 9:30 am Eastern time.
31.
F Young | September 25, 2012 at 7:52 am
Also, the Supreme Court did not grant certiorari in the National Organization for Marriage v McKee case, which was also set for conference yesterday.
NOM had sought an appeal because the lower courts had said that Maine's donor disclosure law was constitutional and applied to NOM. This could impact NOM's fundraising for the Maine intiative.
As we wait for Oct 1, I wonder if NOM is as concerned about Prop 8 as it is about NOM v McKee.
http://www.scotusblog.com/case-files/cases/nation…
32. AFER Prop 8 Update: Not o&hellip | September 25, 2012 at 8:00 am
[...] Thomaston over at Prop 8 Trial Tracker has been keeping a hawkeye on the challenge to Prop 8 and DOMA cases but here’s the official [...]
33.
Richie | September 25, 2012 at 8:33 am
I thought SCOTUS already denied the McKee case…? http://thinkprogress.org/lgbt/2012/02/27/433249/n…
34.
Tony | September 25, 2012 at 8:39 am
update#3 by Scottie says: "I heard yesterday that the Supreme Court had actually decided not to discuss the Perry case at yesterday’s conference of the justices".
Is one of the supreme court clerks (or one of the justices) blabbing about what goes on inside the conference? While I really want to know the outcome … I really, really hate it when people who are trusted with confidential information go and leak it all over the place. I'm not fond of unsubstantiated rumors being posted as if they were facts.
35.
Steve | September 25, 2012 at 8:49 am
The DOJ asked them to hear it. Skipping a court level is uncommon but not impossible
36.
Scottie Thomaston | September 25, 2012 at 8:59 am
I don't know where that information came from. To be fair it could have come from any number of articles. Geidner wrote something similar awhile ago.
37.
Seth from Maryland | September 25, 2012 at 8:59 am
i think this justulation an rumors, theres never been a leak in the Supreme Court, no one know whats discussed or not in those meetings except the Justices
38.
Seth from Maryland | September 25, 2012 at 9:04 am
just speculation i mean ^
39.
Robert West | September 25, 2012 at 9:33 am
they could have decided to kick it to a later conference and not actually decided whether to take it or not. eg, they could still be in limbo.
40.
Robert West | September 25, 2012 at 9:35 am
who said anything about after the elections? they have conferences weekly during the term to discuss cases.
my guess – and this is just a guess – is that both prop 8 and doma were postponed because they're complicated and difficult and will be time consuming, and they wanted to get through as many cases on monday as they could.
41.
F Young | September 25, 2012 at 9:48 am
The "second chapter" of NOM v McKee was distributed for conference yesterday: http://www.supremecourt.gov/Search.aspx?FileName=…
It is an appeal of a decision by the First Circuit on January 31, 2012: http://www2.bloomberglaw.com/public/document/Natl…
The January 31 2012 decision concerned ballot question committees while the earlier decision dated August 11, 2011 considered political action committees: http://newsandinsight.thomsonreuters.com/uploaded…
This history is explained at the beginning of the January 31 2012 decision: http://www2.bloomberglaw.com/public/document/Natl…
42.
Rev. Joe | September 25, 2012 at 9:56 am
I wish that all the speculation would just stop as it gets hopes up it causes anxiety in anticipation Just say it like it is no one knows anything until the court says otherwise and there is no real way of knowing when that will be.
43.
SoCal_Dave | September 25, 2012 at 11:12 am
If SCOTUS kicks the can down the road, will there be another decision day conference like yesterday? Or could they decide to take or not take the case at any time?
44.
exx-man | September 25, 2012 at 11:29 am
Thank you for putting it so succinctly. All the speculation is much ado about nothing.
45.
Carpool Cookie | September 25, 2012 at 11:31 am
"No, it could either be in the list of denials, or could be moved to a later conference."
Ick. That's a bummer…
46.
Bill S. | September 25, 2012 at 12:46 pm
The WIndsor case has not yet been heard by a Circuit Court of Appeal. Edie Windsor is asking the Supreme Court to allow them to skip a step, essentially, given her age, and go straight to the Supreme Court. If the Supreme Court denies this, then nothing happens: the case proceeds as normal through the Second Circuit Court of Appeals (in fact, oral arguments are scheduled for this Thursday).
47.
Brad | September 25, 2012 at 5:18 pm
Yeah Anthony, i know..lol Not sure it is 20 yrs behind, but at any rate WHY or WHAT is the problem..my God, gay marriage here is wonderful and it is now and has been a NON issue for years!
48.
John | September 25, 2012 at 5:52 pm
Clearly you haven't been on this web site that long…
49.
John | September 25, 2012 at 6:07 pm
To the people who keep saying that the SCOTUS might put off any denial or approval of the cert. after the elections, which basis are you taking this on? It really doesn't make ANY sense to say this because the Prop 8 case isn't the same as the DOMA cases.
50.
Mike in Baltimore | September 25, 2012 at 7:07 pm
Agree.
When the Justices meet to discuss cases, it is just the nine Justices in the room, with the door closed and locked. The most recently appointed Associate Justice sits closest to the door, and goes to the door if there is a knock at the door (and there usually isn't).
If there is a leak of what is or is not discussed, it is coming from one of the Justices, and I don't think any of the Justices are leaking any info. If any are, it's probably Fat Tony or his sidekick.
Staff or other SCOTUS personnel? Not unless they've bugged the SCOTUS conference room, and I doubt if any have done that. If they had done that, the number of 'good' rumors vs. 'bad' rumors' would be much more in favor of 'good' rumors than current.
51.
Anthony | September 25, 2012 at 8:58 pm
Sadly, it isn't just us though. Australia just voted it down, and there are still many countries in Europe who have not legalized full civil marriage.
52.
Anthony | September 25, 2012 at 9:00 pm
I think it's the word "marriage" that scares so many people that would be otherwise comfortable with gay people because it's very associated with the whole husband and wife and kids scenario. Yet procreation has never been a requirement for marriage.
53.
Matt N | September 25, 2012 at 10:16 pm
Ruth Bader Ginsburg said herself a few days ago that they would probably be taking up a DOMA case later in this term. You can't get any more definite than that (short of the order saying so)
54.
MightyAcorn | September 25, 2012 at 10:34 pm
And bad journalism. I understand why the "three sources rule" goes by the wayside sometimes with breaking news, but if there's not even *one* quotable source that information should not be published. This isn't a gossip blog, we're talking about real-world situations with a deep impact on people's lives and emotions. Please report responsibly.
55.
Deeelaaach | September 26, 2012 at 12:20 am
Brad, the news from Canada has been so awful these past few years, about how marriage has just been ruined by allowing gay marriages! Canada is going to hell in a hand basket now! <wrings hands> Oh wait, Canada isn't going to hell? And marriage hasn't been ruined? How odd! <removes firmly planted tongue from cheek>
56.
Rob Co | September 26, 2012 at 11:15 am
they will probably wait to see who will be president for the next 4 years before doing anything. delay, delay, delay.
57.
Brad | September 26, 2012 at 12:20 pm
Great point! As if the world is under populated or something…pfft
People are un-educated or just afraid somehow of gay marriage. Hell, if a gay couple gets a civil union….and then decided to tell others they are 'married' it wont make a bit of difference!
58.
Mark | September 26, 2012 at 3:24 pm
That should have no bearing on whether they take the case or not. The election and the Supreme Court rulings are mutually exclusive. If they are holding on DOMA, it is probably because they want all the pending cases heard at once. DOMA is a different situation than Prop 8. DOMA still has some cases pending. Prop 8 has been ruled unconstitutional, appealed and ruled unconstitutional and appealed and denied en banc review. The fact that they did not list Prop 8 on Tuesday is a good sign that they may not be taking the case. We will know Monday, and not until Monday.
59.
brad | September 27, 2012 at 11:21 am
lol..i know, the gays are taking over here in Canada since gay marriage was allowed. WE NEED HELP….i am straight and i cant get married now…Oh wait…lol
Canada is just dandy with gay marriage and i PRAY for America to catch the hell up already:)
ttyl
60. Prop 8 Trial Tracker &raq&hellip | October 1, 2012 at 6:53 am
[...] last week, orders were expected this morning that could have addressed whether the Supreme Court will take up [...]
Leave a Comment
XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>
TrackBack URL | RSS feed for comments on this post.