Supreme Court to review Prop 8 and DOMA cases

12/7/2012 4:13pm by 35

The Supreme Court has agreed to take to up a DOMA case and the Prop 8 case.  Arguments are expected in March, with a decision in June (probably).

From today’s Supreme Court order:

12-144 HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

12-307 UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

And this is from Lambda Legal Legal Director Jon Davidson:

Supreme Court via Shutterstock

“Perry granted on merits and standing of Prop 8 proponents. So no answers (or CA marriages) likely until June, and Court may ultimately duck merits of Prop 8 and allow order striking it down to stand by finding that Prop 8 proponents had no right to seek Supreme Court (and maybe not 9th Circuit) review.”

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@aravosis | Facebook | Google+. Editor of AMERICAblog, joint JD/MSFS from Georgetown, worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. A frequent TV pundit, he has been on The O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Full bio and .

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  • EinMunich (but from San Diego)

    For those of us from California, I have, in my eyes, a very important question: WHY DIDN’T EQUALITY CALIFORNIA TRY TO REPEAL PROP 8 IN THIS LAST ELECTION?????? In view of the breadth of support across the country, why the hell wouldn’t they take advantage of this and correct their heinous wrong from the last attempt??!!! Additionally, I argue that EQCA is a sham organization. They blew it the first time with complete disorganization and horrible arguments, then solicited more money to bring a challenge again — but they never did. They justified it with “let’s wait on the court case”, but the two are exclusive!! I wonder if EQCA isn’t just another organization staffed with “lifers” who side with the false democrats like the “Blue Dogs”, Clintons, etc. Put the spotlight on EQCA and/or let’s start a real organization that will vigorously defend the GLBT rights!

    • Mike_in_the_Tundra

      My guess is they wanted Prop 8 to go to the SCOTUS. Had Prop 8 been overturned in an election it could not go. If it were overturned, the other side could try to overturn the overturn. I can see why they may have wanted to go this route. However, as a member of Equality California, you really need to speak up about such things. Saying them on a blog is fine, but saying it to them would be more effective.

      • EinMunich

        Agreed, and done. Just wanted to make it a bit more visible on the blog.

  • http://www.facebook.com/people/Donald-Gaudard/1448815167 Donald Gaudard

    Scalia’s dissent in the Lawrence (anti-sodomy) case said that, if morality could no longer be the basis of law, the laws concerning adultery, gay marriage, bestiality, etc. could no longer be challenged. Has Scalia changed his mind?

    • Sweetie

      He said that, I believe, in the context of O’Connor’s Equal Protection point. It was a scare tactic, but now his words may come back to haunt him.

      One of the many flaws in his reasoning in that dissent is that the 1st Amendment prohibits “morality” laws in the first place, because they are inherently religious in nature. The only way to have an unwanted behavior (like murder) be illegal in a secular society (as we are supposed to be via the 1st Amendment) is to argue against it on rational grounds. Since homosexuality is scientifically proven to not be a disorder and to exist (gay people are gay), there is no rational basis for making marriage a special privilege for heteros.

  • Mighty

    I am not as hopeful as most seem to be about this. I fear they will actually go against us big.

  • FLL

    So presumably the four most conservative justices (Scalia, Thomas, Alito and Roberts) voted to take on the Prop 8 case. Something tells me that Scalia and Thomas are not basing their request on their belief that they have a good chance of getting an anti-gay decision. I think Scalia and Thomas are just crazy right-wing ideologues who will not let go of this without a fight. But that means that even if they can lure Roberts to their side, they still have to fight for Kennedy’s vote or else we win in a 5-4 decision. Do they have the following three choices then? I’m not sure.

    (1) They could make a sweeping decision involving the right to marry in all 50 states. That sounds like it could result in a Bowers v. Hardwick disaster.

    (2) They could rule on the narrow circumstances that pertain only to California. Probably a more prudent choice in view of the current level of popular support across 50 very different states.

    (3) They could ignore the merits of the case entirely and strike down Prop 8 based only on standing, which sounds kind of weird. This option seems like a decision that anyone and everyone could find fault with because it looks like such a weasel move.

  • Butch1

    I think this will be good news and it’s about time. It’s unfortunate that these cases need to take until June to finally be resolved.

    • FLL

      Even if there aren’t five votes for marriage equality nationwide, the liberal justices have two different escape hatches to avoid an anti-gay decision. I agree that this is good news.

  • http://www.rebeccamorn.com/mind BeccaM

    Whoa. Did I read that right — SCOTUS is inviting both cases (Perry and Windsor) to revisit the standing to file question?

    I’m no lawyer, but that sounds like a major judicial tell there. Not even so much on the merits of the cases, but the basic question of “who has the right to defend the constitutionality of a law in court?” Simply by asking the question, it seems clear that at least some of the justices have their doubts about whether the PropH8 supporters and BLAG have any business defending either law.

    In other words, you don’t open an inviting door like that and expect nobody to try to walk through it.

    • Skeptical Cicada

      Sounds like they’re looking for possible ways to dodge the equality question for now. That might not be a bad outcome. It would mean federal benefits in the northeast and marriage in California. Most importantly, it wouldn’t saddle us with an anti-gay precedent, like Bowers v. Hardwick.

  • http://insideoutandbackwards.files.wordpress.com/2010/12/creepy-clown-nun.jpg Ritorna Vincitor

    SCOTUS could well be looking for a way to duck the Prop 8 case by saying that its backers lack standing. This would send it back to the beginning to start over. Then the Ca attorney general and governor would once again refuse to defend Prop 8, resulting in a default judgment against Prop 8, and marriages resuming in California. And SCOTUS may be prepared to use a similar tactic in the DOMA case.

    • Butch1

      If they have the cojones to play that game the wrath of the nation would come down on their heads and make it so uncomfortable for them that they would never be able to have any credibility or peace until this issue is resolved. I would hope they weren’t so bigoted or myopic not to see that happening down the pike.

      • nicho

        I’d say that the court gave up any credibility on December 12, 2000.

        • Skeptical Cicada

          It certainly should have, but most people don’t seem to have been as outraged by it as they should have.

        • Butch1

          Perhaps, that’s why Scalia acts the way he does today. He basically thumbs his nose at everyone but I think it has taken it’s toll on him. I just have to believe “What goes around comes around.” As far as Thomas goes, that liar should have never made it to the bench. He has no business sitting on it. I have never seen a person more unqualified for the position of Supreme Court justice as this bumpkin. There are far more qualified people that should replace him.

      • http://insideoutandbackwards.files.wordpress.com/2010/12/creepy-clown-nun.jpg Ritorna Vincitor

        Nicho beat me to it. ;0)

      • http://adgitadiaries.com/ karmanot

        They could care less. They have no higher accountability.

    • Stev84

      True, but that would leave the Walker ruling to go into effect. Which is way too sweeping for SCOTUS.

      • http://insideoutandbackwards.files.wordpress.com/2010/12/creepy-clown-nun.jpg Ritorna Vincitor

        Would it? The Walker case was appealed to the Ninth Circuit, which issued a much narrower ruling – the one being considered by SCOTUS. So I believe the Ninth ruling would be in effect, which said just said that it was wrong for California to grant a right, and then take it away. At least that’s my guess.

      • trinu

        It would but only in California.

  • nicho

    Apparently, they want to decide these cases before Obama appoints all those radical liberals to the court. (He is swinging radically to the left now that he’s won re-election, isn’t he? You promised!)

    • Don Chandler

      The strange thing about it, Obama should actually claim he supports the conservative view that promotes stability between couples: Marriage Equality. He doesn’t have to embrace the far right or the far left. Obama just needs to do the right thing. Prop 8 eventually went to a trial setting. The proponents of Prop 8 received a public relations thumping that resulted in a victory for Marriage Equality. I don’t think Scotus wants to be on the wrong side this time. I’m optimistic. Obama has a lot of ‘trial material’ to defend a marriage equality position–hope he doesn’t miss the boat.

      • Sweetie

        “Far left” In America?

        l-o-l

        • Don Chandler

          You can also question what conservative means in America. People that call themselves conservative are in disagreement over the term. David Brooks recently described his political philosophy as falling within the “truth and justice conservatives”–I l-0-l’d this. Or what does nicho mean by”swinging radically to the left” …far left perhaps??? If you ask a wallstreeters to define the far left, they might say, Obama. Or they might say socialism. Or they might even say the occupy movement.

          But funny as it is, here are the words of David Cameron, Prime Minister of the United Kingdom and leader of the Conservative Party:

          “So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

          That’s all I’m jus sayin’

          I listened to a radio station that is pretty left of center durning election night. They hardly mentioned anything about the 4 gay relevant propositions–I was wondering if marriage equality was even a far left issue anymore. Frankly, it feels more like mainstream incorporation of gays.

          • Sweetie

            The liberal-conservative dichotomy is mostly bogus “divide and conquer” stuff, but the notion that America has a far left is even more laughable.

  • Skeptical Cicada

    A disaster in the making, I’m afraid. We could win the DOMA cases. Taking the Prop. 8 case up has always been irresponsibly risky–especially since it now seems that Californians should be able to repeal Prop. 8 at the ballot box, as in Maine, Maryland, Minnesota, and Washington. I foresee the Prop. 8 case leaving us with a terrible precedent and harming everybody in the other states where folks are lobbying hard for marriage equality.

  • http://adgitadiaries.com/ karmanot

    This is gonna get interesting. My guess is that this activist right wing court is going to declare that unless GLTBQ’s incorporate they cannot be considered persons and therefore cannot ‘marry’ although they may ‘merge’ and be Mary.

    • nicho

      I’m guessing that they want to make a sweeping statement on same-sex marriage, which is why they took both cases.m That could be either good or bad. We could make a major gain on equality — or be rendered second-class citizens for the next half century.

      • Skeptical Cicada

        Bad. The were almost certain to take the DOMA cases because they involved lower courts striking down an Act of Congress. But are you aware of the “rule of four”? It takes the votes of only four justices to take a case. Odds are the four who voted to take the Prop. 8 case were the conservatives, to force the liberals into dealing with the whole thing at a point too early a point in the progress of the issue in the country.

        • nicho

          I won’t argue with you. I don’t have much feeling about what they’ll do either way. I’d like to think they wouldn’t perpetuate something so glaringly unconstitutional, but then I think back to December 12, 2000. Courts have traditionally followed the people, and with approval for same-sex marriage gaining and positive votes in four states last month, they may want to see their legacy on the right side of history. But then, Alito, Scalia, and Thomas (at least) are just nuts.

          • Skeptical Cicada

            Yes, they are! lol.

            My feel is that it’s a bit too soon. We just crossed the 50% threshold in public opinion and just won our first ballot votes in quite liberal states. I suspect they’d rather have stayed out of it for a few more years. The last thing they want is another Roe v. Wade dogging them for a half-century. Ginsburg herself has said the Court went too far, too fast in Roe.

            • Butch1

              She had better get with it because a lot has happened the past two years and we need her to rule the right way. I think she will.

          • Butch1

            My take on it is after November and having three states actually vote for gays to have the right to marry, which has been much stronger than the others, They will have to think about what their decisions will do in the long run with DOMA especially. Most of our opponents have said that we should let our states put it up for a vote and see what the people think. Well, three states just decided by majorities that we had the right to marry so that shut them up and that argument for good. I hope this will be noticed by SCOTUS as well and that the writing is definitely on the wall regarding the will of the people. Are they going to be on the side of history is the question.

  • basenjilover

    good or bad news? More waiting… until end June 2013. Not even going to speculate how Roberts and Kennedy are going to vote for or against gays/lesbians.

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