When Supreme Court Justices meet for the first time in the 2012-2013 term, they will have before them the question of whether to grant review in three critically important cases (or sets of cases): the challenge to Prop 8, several cases challenging Section 3 of DoMA, and a challenge to an Arizona law that eliminated access to domestic partnerships. For each, the Justices could grant or deny review or hold over consideration of the particular question. Delaying decision may occur because they wish to discuss the matter further in future conferences or because – in the DoMA challenges – they want to wait for at least a second Court of Appeals to rule.Whatever they do, the conference week beginning September 24 will be a behind-closed-doors blockbuster for lgbt rights questions. If the Court grants review for even one of these issues, this term will become the definitive moment for assessing how discrimination based on sexual orientation will be analyzed under the Equal Protection Clause, which is the core legal issue that cuts across all these cases. If the Court takes two or all three — let’s just say that the movement will be doubling or tripling down on what these nine individuals will decide.
In my view, the best chance for success lies in the DoMA challenges. Every court that has ruled in these cases, which have been filed in multiple courts across the country, has struck down the provision that forbids federal government recognition of same-sex marriages that are legal under state law, creating the only category of marriages for which federal law does not simply defer to whatever the status of the marriage is under state law. The problem with the issue in Supreme Court terms is that Justice Kagan, because she was Solicitor General when the Justice Department was formulating the position it would take in the first of these cases, will likely have to recuse herself from participating in the only DoMA case that has been through both trial and appellate level courts.
If the Court grants review in only the fully developed case (Gill), the parties and the Court could expend enormous resources resulting in a four-four tie (which would affirm the First Circuit decision striking down DoMA but have no effect in the rest of the country). Alternatively, the Court could allow other DoMA cases to skip over the appellate court level and consider them together with Gill. Recusal would not be an issue for Justice Kagan in any case except Gill.
When will we know? The Court could announce decisions on any or all of these cert petitions during the week of September 24. Or they may dribble out in the early weeks of the term.
It could be a truly extraordinary year.