No word yet on Supreme Court review of marriage and discrimination cases

by on September 26, 2012  •  In Constitutional law, DoMA, Marriage, Supreme Court

Supreme Court

The word from on high this week is…Sit tight and stay tuned. Various gay-related cases are tee’d up for the Supreme Court to decide whether they will grant review and then resolve a series of extraordinarily important Equal Protection issues. But the first conference of the new term has now come and gone without any indication of which, if any, gay-related cases the Supreme Court will consider between now and the end of the term next June.

That said, I think the only real question pertains to whether the Court will take up the case challenging Prop 8′s constitutionality (Hollingsworth v. Perry) or the challenge to an Arizona law eliminating partner benefits for unmarried couples (Brewer v. Diaz). In my view, the most urgent of the questions before the Court this term is the constitutionality of Section 3 of DoMA, which bars recognition for federal law purposes of all same-sex marriages. Justice Ginsburg basically issued a press release on the status of that issue, telling an audience at the University of Colorado that she expected it to be on the Court’s calendar this year. I think we can agree that she’s a pretty reliable source, so I feel pretty confident that the Court will decide the constitutionality of DoMA, even if neither of the other cases.

However, there is no way to predict when the Court will announce its decisions on cert for each case. The DoMA issue, in particular, is procedurally complex because of the requests filed in multiple lawsuits for the Supreme Court to grant cert when there has not yet been a Court of Appeals decision. (Here’s why.) And each new filing creates future dates for whichever party is on the other side to respond. Chris Geidner at Buzzfeed mapped out the due dates in the latest DoMA cases to bring the earliest possible conference for deciding cert to November 20. Justice Ginsburg predicted that the Court would reach the DoMA question “toward the end of the current term.” The Supreme Court operates on what is essentially an academic year calendar, so it sounds like her ballpark guess is for a DoMA argument in March or April.

By contrast, the Prop 8 case and the Arizona case are fully briefed for the cert decision phase, so that decision could come at any time. The next conference of the Justices will be October 5, and decisions on cert in either or both of those cases could be announced the following week, at the earliest. Even if the Court grants review, however, the first dates available on the argument calendar are currently in January. So the public gay rights drama in the Supreme Court (ie, the oral arguments) won’t begin until next winter and perhaps not until well into the spring. 

Moreover, regardless of when the Court announces whether it will consider any or all of these cases, and regardless of when oral arguments are heard, it is extremely likely that the opinion(s) won’t be ready until the end of the term, in mid- to late June 2013.

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