Leave a Comment Sagesse
Supreme Court has yet to take action on Prop 8, DOMA cases
October 1, 2012
By Scottie Thomaston
Like last week, orders were expected this morning that could have addressed whether the Supreme Court will take up the constitutional challenges to Prop 8 and DOMA, as well as other gay rights cases. And like last week, no action was taken on these cases. The Court did not outright deny review, and it did not write a summary reversal or a remand in the cases. The docket page for the Prop 8 case still reflects that it was ready for the September 24 conference. The Windsor docket page says the same.
We will have updates if anything changes.
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109 Comments Leave a Comment
1.
Elizabeth | October 1, 2012 at 6:49 am
So the list of denied certs was released and prop8 isn't on it?
2.
JayJonson | October 1, 2012 at 6:50 am
Yes.
3.
Rick | October 1, 2012 at 6:52 am
I still think they'll deny cert, but wait to announce it until after the election.
4.
Kathleen | October 1, 2012 at 6:52 am
That's correct. The October 1 order is here. The Prop 8 case is docket 12-144:
http://www.supremecourt.gov/orders/courtorders/10…
5.
Anthony | October 1, 2012 at 6:53 am
Why do they want to wait until after the election? I don't get it. It's not like they themselves are going to be impeached or anything.
6.
W. Kevin Vicklund | October 1, 2012 at 6:53 am
Diaz v. Brewer is also not listed.
7.
Seth from Maryland | October 1, 2012 at 6:57 am
UGH , I wonder why they did not review it? , the doma cases are a complete seperate issue from this one,
8.
Rob | October 1, 2012 at 6:57 am
So they can just delay it indefinitely? This seems cruel and unusual. Do they have to announce that it's being "held" or set any kind of time frame for a decision? Brutal
9.
Anthony | October 1, 2012 at 6:58 am
So when's the next possible announcement?
10.
Elizabeth | October 1, 2012 at 7:02 am
Oct 8
11.
Anthony | October 1, 2012 at 7:07 am
Yea, we're probably not going to hear a word until after the election. Oh well.
12.
Leo | October 1, 2012 at 7:09 am
But NOM v. McKee (11-1426) is: cert denied!
13.
Wednesday | October 1, 2012 at 7:16 am
My guess would be that they wouldn't want to influence the election. If they deny the cert and let the ruling on Prop 8 stand, Romney/Ryan could start making noise about how they're opposed to "evil librul activist judges that overturn the will of the people." Not only could that affect the election, but if it leads to a win it would give the GOP more motivation/ammunition to attempt to weaken the powers of the courts.
14.
Elizabet | October 1, 2012 at 7:16 am
I'm feeling pretty damn dejected about this non-news. The last 4 years have been one long torcherous string of news. "Obama elected, but Marriages defeated", "prop8 unconstitutional BUT stay on marriages is put in place", and prop8 Again found unconstitutional BUT marriages have a stay until SCOTUS decides".
My life and rights are not here for political bargaining. that seems to be exactly what's happening here time and time again. I can't even express my disappointment that yet Again I'm having to delay my wedding.
15.
Anthony | October 1, 2012 at 7:21 am
This would all have been MUCH easier had Prop 8 been voted down. But hey, everything happens for a reason I guess.
16.
jpmassar | October 1, 2012 at 7:22 am
Explain what that case is about?
17.
Steven | October 1, 2012 at 7:22 am
Nice! Why is there not more reporting on this!? So what does this mean for NOM? Do they have to pay up now? Disclose their lists? Will it affect their campaign in Maine for this election?
18.
Phillip K | October 1, 2012 at 7:24 am
I think this has something to do with the campaign disclosure laws that NOM spends so much time trying not to follow.
19.
WeTheSheeple | October 1, 2012 at 7:25 am
Yep, it's been one delay after another.
The SCOTUS wants to pretend they're non-political, yet the ONLY reason for delaying a decision on Prop 8 is because of politics.
20.
Matt | October 1, 2012 at 7:32 am
Good eye, Leo.
21.
Jen | October 1, 2012 at 7:33 am
Everyone keeps saying any word about Prop 8 won't happen until after the elections when the DOMA cases are eligible for cert. First of all where are these people getting this information? SCOTUS Conferences are closed to the public. Either someone is blowing somebody or this is being leaked out by one of the Justices. Given that Prop 8 case isn't the same as the DOMA cases why would the SCOTUS wait until after the elections?
22.
Seth from Maryland | October 1, 2012 at 7:33 am
speaking of the election, this non-news that happen today is going to make me donate to the president and Marylanders for Marriage Equality
23.
Sagesse | October 1, 2012 at 7:39 am
Political with the objective of being politically neutral. Nothing has changed, so nothing changes in the campaigns or the election as a result of a SCOTUS decision. If they deny cert weeks before the election, the decision and the fact of marriage equality in California become part of the debate, and could influence the outcome of the election(s)… there are many.
I think the Court is being responsible by staying out of it.
24.
Anthony | October 1, 2012 at 7:47 am
You're right, but it sucks for us in CA who are waiting for marriage rights to be restored. Then again, I'm 21, so I probably won't get married for a while lol.
25.
Jae | October 1, 2012 at 7:51 am
I think if it could sway the election in Romneys favor then a couple more weeks of wait are worth it. Obama needs to be re-elected especially if there are vacancies coming up soon on the Supreme Court. I am thinking they are going to deny the Perry case and they dont want Gay Marriage legal in California before the election because this will give the Republicans ammuniton against the Democrats.
26.
Seth from Maryland | October 1, 2012 at 7:58 am
the next possible date for an announcement is Oct. 8 when the Supreme Court, will release the list of cases that it will not consider
27.
New | October 1, 2012 at 8:03 am
The way things are moving to Romney's campaign, Marriage Equality becoming legal in California before the elections could very well give Democrats ammuniton against the Republicans instead.
28.
Straight Dave | October 1, 2012 at 8:15 am
In the list of orders, I also see the following. Is that the end of the line for NOM in hiding their funding?
11-1426
NAT'L ORGANIZATION FOR MARRIAGE V. McKEE, WALTER, ET AL.
The motion of respondents for leave to file a brief in
opposition under seal with redacted copies for the public record
is granted. The petition for a writ of certiorari is denied.
29.
Jae | October 1, 2012 at 8:20 am
California is not considered a swing state so Obama should have this one wrapped up. But this could give other more conservative swingstates and independents where the race is tight a scare and tilt the more undecided towards Romney for fear that this will happen in their state if Obama is elected for another term. I see your point it could help or hurt either way but staying mum on the case till after the election seems to be the safest least riskiest route
30.
BobN | October 1, 2012 at 8:20 am
The closer any announcement gets to the election, the more impact it would have, and that impact would be largely pro-Romney.
31.
MightyAcorn | October 1, 2012 at 8:28 am
It's the case NOM filed concerning Maine elections law, which requires them to reveal the names of their donors in their state campaign. Problem is, who's going to make them do it now that they've lost theia appeals?
http://www.joemygod.blogspot.com/2012/10/nom-lose…
32.
Aaron | October 1, 2012 at 8:30 am
You are very correct. If I am waiting 6 more weeks just so Obama can get re-elected, I am okay with it. I will withhold my judgement of SCOTUS on this until after the election.
33.
Matt | October 1, 2012 at 8:30 am
Contempt charges and fines from the Maine Ethics Commission or state courts if a complaint is made.
34.
Matt | October 1, 2012 at 8:34 am
That's the silver lining I think people will talk about if the court announces a decision after the election. Backlash is always a possibility that could sink the referendum campaigns in four states.
35.
MightyAcorn | October 1, 2012 at 8:38 am
I think it has less to do with the election and more to do with whether they're going to bundle consideration of all the "gay rights" cases until later in the year. I imagine the justices know how they'd vote re: Prop 8's constitutionality….I wonder if it's the standing issue that's making the decision complicated.
Can they deny cert in part, say to the marriage equality part, and take up only the standing issue at this point? Or would that kind of split decision only be rendered after the case is heard?
36.
davep | October 1, 2012 at 8:38 am
Well it's certainly the end of the line for this trial about revealing campaign contribution sources, and NOM has LOST. I suppose they could continue trying to ignore the law (and now, this court ruling against them) but that would be very foolish. I kinda hope they try it one more time and really get themselves into a lot of trouble.
37.
JayJonson | October 1, 2012 at 9:01 am
Elizabet, I share your impatience and disappointment. The wheels of justice in this country grind exceedingly slow when they grind at all. Injustice doesn't seem to bother some people, even those who are tasked with ensuring it.
38.
JayJonson | October 1, 2012 at 9:03 am
You have lots of time, Anthony. But several friends of mine have been waiting 50 to 60 years to get married and they are growing doubtful as to whether it will happen in their lifetime. They are trying to hold on to see the end of DOMA.
39.
Jamie | October 1, 2012 at 9:05 am
I think everyone has largely forgotten about standing, and the proposition's proponents lack of it.
40.
JayJonson | October 1, 2012 at 9:06 am
I don't think this will have any effect on the election. The people vociferously opposed to same-sex marriage have already decided to vote for Romney. For most people, same-sex marriage is not high on their agenda in terms of who they are going to vote for. But now more people who feel strongly about the issue are in favor of ssm. So, while a decision to permit the marriages in California to resume may affect the turnout a little, it will probably be a net wash.
41.
JayJonson | October 1, 2012 at 9:11 am
I do not believe this. The people who will be outraged about a decision to allow marriage in California live in Alabama, Mississippi, Oklahoma, etc. The only "swing state" where it could possibly have much effect is North Carolina. A growing majority of the country now favors same-sex marriage. For undecided voters, ssm is likely not a high priority. If they cared deeply about the issue, they would not be undecided.
42.
Jon | October 1, 2012 at 9:12 am
We're also overlooking that the DOMA and Prop 8 cases may be difficult to decide at this stage, specifically because they're likely divided 4/3 with Kennedy and Roberts in the middle, and one or both of them considering casting the fourth vote to grant review. It might well need a half-day's discussion to decide what they want to do, and delaying Prop 8 while 100 other cases are processed lets them conclude many more cases (some of whom have also faced delayed justice for years). If postponing past the election provides additional benefits, I can see why they'd do it.
43.
JayJonson | October 1, 2012 at 9:13 am
Good question. I don't know the answer, but I think that if they decide that the proponents did not have standing to appeal, the case is over.
44.
JayJonson | October 1, 2012 at 9:17 am
I have a question that someone may be able to answer. I was startled to read in reference to a Quick Hit story about Wisconsin that mentioned that the state DOMA actually criminalizes Wisconsin residents to go to another state to get a same-sex marriage. Surely that is unconstitutional, isn't it? Has anyone been prosecuted in Wisconsin for getting married out of state? Is this kind of penalty routinely included in the state DOMAs? As a recall, the penalties were pretty steep including jail time and a hefty fine.
45.
sab39 | October 1, 2012 at 10:11 am
I have rather less than zero expertise or knowledge on this, but I don't see how that could possibly work. The issue of standing is only "reached" because it was necessary for figuring out the resolution of what the case is actually about. I think I have heard of cases where cert is granted on some parts of a lower court ruling but not on other parts, but I don't think they can deny cert on the actual issue that the case is about, and then grant cert on an appeal to some part of the route via which the lower courts reached the ruling on the actual issue.
46.
SoCal_Dave | October 1, 2012 at 10:14 am
I think SCOTUS is waiting until after the election to deny cert, and as painful as it is to have to wait, I think this may serve us well in the longer run.
Swing states eventually go one way or the other, not just by undecideds deciding, but also by who turns out. Some conservatives in swing states are ambivalent about the election, they hate Obama but have no love for Romney, and are thinking about just sitting it out. But a big bad scare of gay marriage could push them to hold their nose and go for Romney.
A majority of Americans may be in favor of same sex marriage, but most don't seem very passionate about it. They say live and let live, but don't care much about it. People who are opposed, on the other hand, are often religiously motivated and feel threatened. It could push them to turn out for Romney.
All just my opinion of course, based on nothing but speculation, and looking for a silver lining in our seemingly never-ending wait.
47.
TimATL | October 1, 2012 at 10:23 am
I know it takes at least 4 justices to grant cert, but who would make the call about the timing of a decision to grant cert or deny cert? Is it the cheif justice, is it a majority vote or is it something else? In other words, does it take 5 of them to say, "you know what, let's wait until after the election to make the decision about whether or not to grant cert for Perry."
48.
New | October 1, 2012 at 10:38 am
BINGO. That's the best question I've red all day. These "SCOTUS is waiting" guesses are driving me nutz. I'll love to read an answer for that.
49.
Rose | October 1, 2012 at 10:40 am
Sorry, but this is SCOTUS playing politics and nothing else…….there is NO reason to delay action on Prop 8.
50.
Sagesse | October 1, 2012 at 10:49 am
A decision to wait until all the 'marriage equality' cases are fully briefed and to review them all at once to decide which one(s) should proceed is a decision to table the question for a later date. The vote to accept or deny is simply punted to the agenda for a later conference.
51.
TimATL | October 1, 2012 at 10:53 am
Yes, but who makes that decision?
52.
W. Kevin Vicklund | October 1, 2012 at 10:56 am
Actually, there might be some merit to the connection by standing. The DOMA and Prop 8 cases involve non-traditional intervenors, and the thinking might be to combine them cases due to that, as well as the fact that they have a similarity in the subject matter. Previously, I was thinking that the only reason to delay would be that they were considering addressing the constitutionality of SSM bans in general (ie, combining de novo reviews of the District Court ruling in Prop 8 and the various DOMA rulings for an omnibus decision).
The idea that they are delaying until after the election is ludicrous.
53.
Sagesse | October 1, 2012 at 11:02 am
They do it all the time. It's called 'relisting' to a future date. Presumably, after some discussion, one of the justices says 'we should defer consideration of this one' and gives a reason. And the other eight justices nod, and it's done.
54.
Lesbians Love Boies | October 1, 2012 at 11:03 am
If it's been relisted we will know later in the week if we see it redistributed.
Here is what I found:
55.
Lesbians Love Boies | October 1, 2012 at 11:08 am
Wonder if NOM is going to post this on their website blog?
If they do – I wonder what spin they will use!
56.
Anthony | October 1, 2012 at 11:12 am
I know, and that's who I feel for the most. I'm luckily I was born when I was.
57.
Anthony | October 1, 2012 at 11:13 am
lucky*
58.
Carpool Cookie | October 1, 2012 at 11:41 am
Yes, that could be a consideration on their minds, as the elections are only about a month away.
The way I can make sense of that factor is, it's kind of like if you're a celebrity, you know that everything you say carries additional weight, and gets a huge amount of attention that can snowball. The judges may realize that the attention given to a decision RIGHT NOW can take on additional momentum in the public's mind, rather than if it were released at a more neutral time, after the election. (But…who knows?)
That's not really a great analogy…but it sort of works for me.
59.
Mike in Baltimore | October 1, 2012 at 11:49 am
"My guess would be that they wouldn't want to influence the election."
If that were the case, SCOTUS would have found some reason to issue an opinion not this year, but next, on the Patient Protection and Affordable Care Act, commonly called Obamacare. After all, it went from passed by Congress and signed into law to SCOTUS decision in just over two years. How long has the Prop H8 case been in the pipeline?
60.
Steven | October 1, 2012 at 11:58 am
Sorry, there are other cases that they need to review. It takes time sometimes. If you are bitching on how they are taking their time WELCOME TO US supreme court!!!!!
61.
Mike in Baltimore | October 1, 2012 at 12:05 pm
If either of the parties has a lack of standing, the entire case is thrown out, as there is no one 'qualified' to speak for one side of the case or the other. Determination of whether someone has standing or not is reached BEFORE a case is heard in court, be it municipal, state or Federal.
The delay could be a result of research into whether one side or the other lacks standing. Remember, the 9th Circuit tossed the question to the California state Supreme Court prior to deciding to proceed with the appeal.
62.
Mike in Baltimore | October 1, 2012 at 12:13 pm
That, and considering how making DOMA unconstitutional in one or more circuits, but not nationwide, could affect other laws, and possible future court rulings on this and other subject matters.
Remember, if cert is denied for any reason, then the previous lower court ruling stands, but only in the jurisdiction of that lower court. And if cert is denied because of the standing issue, then they would be saying that DOMA (and Prop H8) is unConstitutional in those court Circuits where a court has issued a ruling on the subject(s), but legal elsewhere.
Talk about a potential legal fiasco.
63.
Carpool Cookie | October 1, 2012 at 12:23 pm
"Political with the objective of being politically neutral."
Yes. Thanks for explaining it that way…my example wasn't that good.
64.
Carpool Cookie | October 1, 2012 at 12:31 pm
where are these people getting this information?
No one's stated that a delay till after the election is a certainty, that I know of….they're just discussing logical explainations for what they see unfolding, right now.
65.
Carpool Cookie | October 1, 2012 at 12:35 pm
'….and tilt the more undecided towards Romney."
I would add: And tilt the more undecided AND UNEDUCATED toward Romney.
66.
Stephen | October 1, 2012 at 12:36 pm
Are you supposing that because the SCOTUS has not issued a denial of Cert on Prop 8 that it will hear arguments on the Prop 8 issue?
67.
Brian | October 1, 2012 at 12:53 pm
Everything here is speculation. Steven, you sound juvenile when you refer to citizens as 'bitching' because they articulate their opinion that this case has dragged on longer than they would have expected or liked. The people 'bitching' Steven are the people paying for this system. They have every right to opine on a blog that justice in this country is slow. Disrespecting them doesn't make you look bright or somehow superior, just more patient and accepting of a seemingly broken system.
68.
W. Kevin Vicklund | October 1, 2012 at 12:53 pm
Clarification: I always figured Windsor would be delayed until the other DOMA cases were fully briefed. The reference to delay was respecting Prop 8 and Diaz v. Brewer. BTW, is there a standing issue with Brewer? If not, then it falls back to the potential of bundling due to subject matter. (I say potential to reflect that they may be considering bundling, to be decided once everything is fully briefed. Hedging their bets, in other words.)
69.
Lesbians Love Boies | October 1, 2012 at 1:22 pm
IMO – no. It could be any number of reasons and I won't speculate on any of them : ).
70.
F Young | October 1, 2012 at 1:43 pm
Thanks, Lesbians Love Boies. That's very informative.
Here's an update. All four DOMA appeals before the Supreme Court (Gill, Golinski, Pedersen & Windsor) and the Proposition 8 appeal now appear at SCOTUSBlog (which is not official) as being “Petitions Not Set for Conference” at all:
http://www.scotusblog.com/case-files/petitions-we…
This is a change from earlier, where the Windsor and Proposition 8 (and Brewer) cases were shown as being set for the Sept. 24 conference.
SCOTUSBlog also gives the conference lists for Oct 5 and 12, and none of those petitions appear there.
This is consistent with speculation that all the marriage equality petitions will be considered together at some yet unspecicified date when all the cases are ready, which may well be after the election.
Regarding the alternatives explained by Lesbians Love Boies, does this suggest that the petitions are being "held" pending another petition (Gill?)?
71.
F Young | October 1, 2012 at 1:44 pm
BTW: I can no longer find any mention of Brewer v Diaz at SCOTUBlog, which had listed it for the Sept. 24 conference. They do not even list it among the petitions that are not set for conference, which now includes the Proposition 8 and all the DOMA petitions.
http://www.scotusblog.com/case-files/petitions-we…
72.
Bill S. | October 1, 2012 at 1:48 pm
I don't think this is a law; I think the Wisconsin Family Association or whatever it's called was pushing to make it a law.
I would find it hard to believe that a state can make it illegal to do something that is legal in another state when people are in that other state. In any event, such a law would have no rational basis except anti-gay animus (Wisconsin wouldn't have to recognize the marriage anyway) and would be struck down under the Equal Protection Clause.
73.
Carpool Cookie | October 1, 2012 at 2:20 pm
Mmmmmmm….well, I would use different wording than Steven, perhaps, but from what I've observed, almost anyone involved in a lawsuit suddenly feels the legal system is intolerably cumbersom…when they didn't seem to devote much time to fixing that for others, before.
The concept of Due Process means we're all treated the same and go through the same steps; it's unusual to leapfrog to the front of the line before other cases in the system. It's a democratic approach in which we are all equal.
74.
TimATL | October 1, 2012 at 2:39 pm
According to what Lesbians Love Boies posted, it only takes one justice to relist a petition. So the other 8 justices may want to vote on the petition, but one justice can relist it unitl the next conference anyway? I wonder how many times in a row one justice can relist a single petition. And how many justices does it take to hold a petition? Just one as well? F Young reports Perry was listed for the September 24th conference and now it's listed as one of the petitions not set for conference. I agree, based on that, it might have been put on hold.
75.
Lesbians Love Boies | October 1, 2012 at 2:45 pm
October 8 is a Legal Holiday – don't think there will be any announcements then.
76.
Lesbians Love Boies | October 1, 2012 at 2:48 pm
http://www.supremecourt.gov/Search.aspx?FileName=…
77.
Carpool Cookie | October 1, 2012 at 3:06 pm
To be fair…..we don't really know what influences them and their schedules. Discussions at this point take place behind closed doors.
78.
guest | October 1, 2012 at 3:44 pm
These are people's RIGHTS…LGBT's CIVIL RIGHTS. Their livelihood, families, tax breaks, happiness, future….'bitching'??? Yeah, you better believe they are and they have every right to when the anti gay forces (and indifferent folks like you) want everyone to adopt your complacent tone to gay marriage. WE WON'T. This is our passion and we care about it with every fiber of our being. Don't you DARE lecture people on how they shouldn't care about their equality and rights, or to what degree they should care. You're only making them more passionate when you speak such nonesense.
79.
Mason | October 1, 2012 at 3:45 pm
Dear,
if we were all equal…our rights as a minority would not be subject to popular vote of a majority. Very telling how you overlook this obvious point.
80.
Carpool_Cookie | October 1, 2012 at 5:19 pm
I don't get the sense the OP is trying to diminish anyone's commitment to Marriage Equality, they're just pointing out that this is how the court system operates in our country. It's a very slow process.
81.
Peter Thomas | October 1, 2012 at 5:20 pm
http://www.facebook.com/BishopWillardRomney#!/pho…
82.
Frisky1 | October 1, 2012 at 6:58 pm
I posted about this in the comments a couple months ago. Wisconsin has an existing section to its laws which was set up back in the day to stop teenagers who would be too young to legally marry in Wisconsin from going to say Texas, getting married, and returning to Wisconsin.:
_________________________________
Wisconsin State Statutes _765.30 Penalties. _(1) The following may be fined not more than $10,000 or imprisoned for not more than 9 months or both:
__(a)Penalty for marriage outside the state to circumvent the laws. Any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state.
________________________________
As you can see, the law does not specify underage kids–its any marriage prohibited by Wisconsin. When marriage equality came to Iowa, there was a bit of a legal debate and speculation that this existing Wisconsin punishment would be applied to gay couples because of course, their marriages would not be legal in Wisconsin. You can even google some advisories that were issued by gay rights groups suggesting that Wisconsin gay couples not get married.
I could not find any challenges or prosecutions regarding gay couples and this punishment but I do remember that in news articles the experts were suggesting that it would be left up to each county whether to prosecute. So a county with a democratic prosecutor (or whoever is in charge of such things) would be less likely to care about a gay couple getting married in Iowa than one with republican leadership.
Lambda Legal also notes that there are several states with such punishments in their laws, but Wisconsin's is the most onerous.
83.
Brian | October 1, 2012 at 8:13 pm
No he was pointing out that those people who have been waiting for justice are 'bitching'. For most of us, we are not lawyers or judges. We have jobs and pay our taxes. This is the first time for many of us to see the American justice system at work and frankly we are not impressed. Seems like an extremely antiquated system in serious need of improvement. Guess we should not 'bitch' just keep paying for this farce and shut up. AIn't going to happen.
84.
echamberlain | October 1, 2012 at 8:15 pm
Scalia could have had a bad burrito at lunch and they had to cut the conference short.
My bet is on Roberts being stingy with standing.
85.
Tired of Waiting | October 1, 2012 at 11:15 pm
Sit tight, it ain't over until its over… Grabbing another bag of very stale popcorn. We could be in for bumpy ride until June 2013.
86.
MightyAcorn | October 2, 2012 at 8:45 am
This is interesting to me, because I personally think they might be looking for an opportunity to rule on whether or not initiative proponents have Article III standing–was that highly-cited bit of dicta about standing "not being likely" from Arizonans? I forget–but then there would be a sort of legal paradox in ruling that initiative proponents do not have federal standing. I guess we'll see.
87.
sab39 | October 2, 2012 at 9:16 am
True, and I get that, but if they were to do what MightyAcorn asked about – grant cert on Standing but deny cert on marriage equality itself – then they'd be ruling between the outcomes of:
a) Plaintiffs had standing, the appeals court ruling was valid and stands, marriage continues, or
b) Plaintiffs did not have standing, appeals court ruling is vacated, lower court ruling could not be appealed in the first place… marriage continues!
I don't see how it can make sense for SCOTUS to put themselves in a situation where their ruling CANNOT affect the actual outcome of the case, only HOW the outcome is reached. Can they grant cert on the question of standing and not make a decision on cert for the rest of it at all because the question of whether cert is even applicable is not reached unless plaintiffs had standing?
88.
Dennis | October 2, 2012 at 12:47 pm
On this website: http://www.windycitymediagroup.com/lgbt/Supreme-C…
there is an article that says:
…on Wednesday afternoon, September 26, a notice was posted in the press room at the Supreme Court, indicating the case was being "rescheduled" for a later conference meeting. As of deadline this week, the docket did not indicate a new conference date for the highly watched case.
Therese Stewart, Chief Deputy City Attorney for San Francisco, said they may want wait until after the election."
This is a very short excerpt of what is written on that website.
89.
Dennis | October 2, 2012 at 12:56 pm
I read a lot of information about SCOTUS and how they work. They pretty much do what they want as far as scheduling – even one judge can delay a case if they want to think about it. The court does have to decide a case by the end of the term it's filed in – so they have until June 2013 to rule on all of these same sex marriage cases.
In an article I read, Ruth Bader Ginsberg was asked a question by someone at the college she teaches at about same sex marriage cases and the only thing she would say was that "she thought that the court would be taking up the case(s) towards the end of the current term. That may mean we won't hear anything until next year or she might have been referring to DOMA cases only – she wasn't clear about it and also said she wasn't permitted to discuss cases before the court.
So – we wait.
90.
Dennis | October 2, 2012 at 1:01 pm
I don't think that's the case. I think one of the judges decided they'd rather wait until after the election. One judge alone can ask for a delay – any one of them. That's 35 days from now.
91.
Dennis | October 2, 2012 at 1:19 pm
I'd bet you Brian – that it IS going to happen; if what you meant was that we would never be able to marry same sex. Some of the most serious wrongs in the world too a lot of time to fix… but they have been and still are getting fixed. I honestly believe we will prevail sooner or later (hopefully sooner).
92.
Mike in Baltimore | October 2, 2012 at 1:44 pm
Standing MUST be attained before any further action can be taken.
If there is no standing, there is, in effect, no case since there is no one to advance any and all arguments for or against the case (depending on the situation).
One outcome might be to send the case back to the 9th circuit with instructions to determine if BOTH sides have Article III standing. If not, then the case at the 9th Circuit is null and void, and the decision devolves down to the District Court ruling (silver lining – the District Court ruling was a much more expansive ruling, and it might be of benefit, not only to residents of California, but nationwide).
93.
sab39 | October 2, 2012 at 1:53 pm
But we're not talking about just the question of standing, we're talking about the question of certiorari on the question of standing and on the rest of the case. Since both the question of standing and the ruling of the appeals court are now before the Supreme Court.
If SCOTUS grants cert on the question of Standing, what happens to the question of whether to grant cert on the rest of the case or not? Is that deferred until the standing question is resolved?
Since the question of standing has to be resolved in order for there to be a case at all, it seems to me what would make sense would be that if someone was going to appeal the question of standing then that appeal had to get resolved before the rest of the case could continue at the lower level.
As it is you're now in the weird situation where – if the court is not inclined to grant cert on the overall case – then the question of standing is just deciding between "you lost" and "you REALLY lost (because you should never have been able to come to court at all)".
94.
Mike in Baltimore | October 2, 2012 at 1:56 pm
Maybe SCOTUS scheduled 50 cases for September 24, but found that to get through discussions for all 50 cases, they'd need to stay in conference until CoB, Friday, September 28, even if they worked around the clock, taking NO time off for rest room breaks, meals, sleep, etc.
In other words, maybe they found they had overscheduled, and decided to put off to another day those cases they didn't get to.
Conjecture, but it is JUST as valid as people ASSuming SCOTUS is playing politics with the decison to grant cert, or not.
95.
Mike in Baltimore | October 2, 2012 at 2:11 pm
So some commenters, such as Rose, stating "there is NO reason to delay action on Prop 8." is Rose expressing an opinion, and maybe not venting and ASSuming things?
Rose? What do you know that no one else knows?
96.
Mike in Baltimore | October 2, 2012 at 6:41 pm
To repeat:
"Standing MUST be attained before any further action can be taken."
No standing, no further action.
PERIOD.
97.
sab39 | October 2, 2012 at 6:45 pm
I believe you! I did all along! I just don't get how it applies in this case.
Does "granting cert" count as action?
98.
MightyAcorn | October 3, 2012 at 12:28 pm
I guess my question is, will they take the case and argue about whether the proponents have standing, or can they/ will they deny cert and say, "proponents don't have standing"? Don't they usually not explain when they deny cert?
99.
W. Kevin Vicklund | October 3, 2012 at 2:06 pm
When the court below has decided on the merits (which means they have ruled there is standing), cert is granted or denied based on the rest of the case. Once cert is granted, they must first determine standing (this is true for all cases, btw, though often trivial). They can then decide on the merits, if there is standing.
There are times when they only grant cert on standing. One example is when the lower court has found a lack of standing (and therefor did not reach a decision on the merits). Another example is when a party files an interlocutory appeal challenging standing while the case proceeds at the lower court. Perry does not fall into any of the categories that trigger an independent grant of cert
100.
Mike in Baltimore | October 3, 2012 at 4:10 pm
Does NOT granting cert, either by skipping the case, rescheduling for another conference (maybe because the conference on granting or not cert was over scheduled), or researching whether ALL parties have Article III standing, or for any of a multitude of other reasons mean SCOTUS took NO action?
We know SCOTUS didn't grant cert, but no one but the nine Justices in the conference knows the reason cert was NOT granted. Does that mean no action was taken?
101.
Mike in Baltimore | October 3, 2012 at 4:22 pm
Maybe not total bundling, but bundling the DOMA cases, and holding Prop H8 separately, but hearing all of them on the same day.
102.
Mike in Baltimore | October 3, 2012 at 10:05 pm
How many have asserted that SCOTUS is (not may be, but IS) politicizing the case, waiting to make an announcement until after the election?
That is 'just speculation'?
103.
Mike in Baltimore | October 3, 2012 at 10:06 pm
October 9, as October 8 is a Federal holiday.
104.
MightyAcorn | October 4, 2012 at 8:43 am
Thanks, W. Kevin, that gives me a clearer idea of how the determination of standing works.
105.
SHOES THROWER | October 7, 2012 at 10:49 am
The "not being likely" dicta was from the Court's observation that there was no Arizona law that appointed initiative proponents as agents authorized to assert the state's interest. Indeed, in Arizonanas the initiative proponents failed to cite any Arizona case law which allowed them to intervene.
In Karcher v. May, 484 U.S. 72 (1987), the Supreme Court copnsidered the standing of New Jersey legislative leaders to defend a state law in a district court and appellate court. In holding that the officials jhad standingh in lowerr court, the Supreme Court pointed out that "[t]he New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties respondent on behalf of the legislature in defense of a legislative enactment" Karcher, 484 U.S. at 82, citing In re Forsythe, 91 N.J. 141, 144, 450 A.2d 499, 500 (1982)
If standing does not exist, the oproper course would be to vacate the judgments. At a minimum, because this case is not a class action, the only
relief that possibly could be justified if Petitioners lack standing
would be a district court judgment enjoining enforcement of
Proposition 8 solely against the four Plaintiffs. See, e.g., Califano
v. Yamasaki, 442 U.S. 682, 702 (1979); Los Angeles Haven
Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011).
106.
SHOES THROWER | October 7, 2012 at 10:57 am
A GVR could also be used if the lower court used the wrong reasoning or legal test, but not necessarily the wrong result. E.g., if the lower court used the wrong level of scrutiny, the supreme Court could GVR, directing the lower court to use the correct level of scrutiny to decide the merits.
107.
SHOES THROWER | October 8, 2012 at 7:30 pm
To add more to my previous post concerning Arizonans, and Karcher, the Supreme Court in Karcher had cited a New Jersey Supreme Court case which established that the Speaker of the New Jersey General Assembly and the President of the State Senate had standing to defend statutes in federal court and to appeal adverse decisions.
In Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991), the Ninth circuit held that Arizona initiative sponsors had standing to defend their initiatives in federal court. It did so on the basis that Arizona initiative sponsors are similarly situated to state legislators, and that Arizona law gives sponsors "official rights and duties distinct from those of the voters at large" Yniguez, 939 F.2d at 733
Yniguez, however, has its flaws. It did not cite a specific provision in Arizona's statutes or constitution that authorizes initiative proponents to defend their enactments. Nor did it cite an Arizona Supreme Court decision that authoritatively established such authority. By sharp contrast, the Supreme Court relied on Forsythe to establish that the Assembly speaker and the Senate President had authority to defend New Jersey statutes during their terms in office. This was the reason for the Supreme Court's grave doubts in Arizonans.
While Yniguez was never overruled by the Ninth Circuit en banc or the Supreme Court, it is not a perfect fit to California. Yniguez did not hold that initiative sponsors per se had standing, only that Arizona's sponsors had standing due to Arizona law (however flawed their reasoning was.) The Supreme Court relied on its New Jersey counterpart to determine if the Karcher petitioners had standing to defend the law in question before the district court and appellate court. Therefore, the Ninth Circuit decided to certify the question to the California Supreme Court.
Together, Yniguez and Perry only establish that states may grant initiative sponsors authority to defend initiatives in federal court; they did not establish that initiative sponsors had standing to defend their initiatives <>.regardless of state law.
108.
Nonya | October 28, 2012 at 11:33 am
Why is it too many whites in the jurry of the supreme court??? Something is very wrong here! 1 black and maybe 1 hispanic?? Them white devils are taking over everything!
109. Prop 8 Trial Tracker &raq&hellip | December 13, 2012 at 6:38 pm
[...] The Supreme Court hasn’t decided whether it will hear the Prop 8 case, challenges to DOMA, or Brewer v. Diaz. However, it did deny an appeal [...]
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