Supreme Court forecast: Windsor’s the one and only

by on October 29, 2012  •  In Constitutional law, DoMA, Marriage, Supreme Court
Supreme Court Interior
Supreme Court Interior

Frankenstorm may be closing everything else on the East Coast, but the Supreme Court announced new decisions today about which cases it will hear this term…and there were no gay-related cases in the bunch.  Especially given the papers filed Friday by DoJ asking that the Court grant cert only in Windsor (the DoMA case decided last week by the Second Circuit), I’m raising my bet that the Court will do just that and only that, and keep the Prop 8 and Arizona cases in deep freeze until June.

UPDATE – The Court has relisted all of the gay-related cases for its November 20 conference. Decisions made that day will be announced on the Monday after Thanksgiving, November 26.

If the Court does follow DoJ’s recommendation, it means that the first DoMA case in line – from Massachusetts – will not be argued, but instead will become one of the multiple DoMA cases that will be resolved by whatever decision the Court issues in Windsor.  As I’ve said since two years ago, the back story is that Justice Kagan would almost certainly (the “almost” has really become a technicality at this point) recuse herself from participation in Gill, because she was involved in deciding the DoJ position in that case when she was Solicitor General.

It’s true that the Court could still announce decisions on certiorari in the Prop 8 and Arizona cases this fall, but that becomes less likely with each passing week. Those two cases are fully briefed for cert purposes, and each raises at least some legal questions that are distinct from the DoMA cases. It’s pretty obvious that the Court will pick one of the DoMA cases to hear this term – given the questions they raise about the validity of a federal law, it really has no choice.

But Prop 8 and Arizona are quite different situations legally. Although LGBT community interest in the Prop 8 litigation is intense and certainly it is an important case by any measure, if the Justices thought it urgent, there would be a decision on cert already. So it looks increasingly likely that the Court will articulate its Equal Protection Clause standard for sexual orientation classifications in Windsor, probably in June, and then either rule summarily on Prop 8 and the Arizona law or remand those two cases to the Ninth Circuit for reconsideration in light of whatever the Court says in Windsor.

Back to Frankenstorm…

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