The Supreme Court is treading cautiously toward the decision it must make about whether to grant review in cases raising three enormously important equal protection issues: the constitutionality of DoMA, Prop 8, and an Arizona law that withdrew partner benefits for government employees. The Justices are meeting in conference today, and any decisions on cert petitions will be announced Monday. After that, there is no conference scheduled until October 26; any decisions made during that conference will be announced October 29.There is much speculation that this package of cases is being held over until all briefing is completed in the series of DoMA challenges. The Prop 8 and Arizona cases raise an array of different questions from the DoMA cases, but ultimately the Court’s decision on which standard of review to apply in its Equal Protection analysis of sexual orientation classifications may determine the outcome of the whole bunch of them. If the Court wants to pick only one, rather than three, bombs to set off in the gay rights minefield this year, that suggests that it could hold over the other cases for the entire term, pending the resolution of the chosen case.
If the Justices do decide that one is enough, my bet is that they will grant review in the DoMA challenges. There’s no question that deciding whether a federal law is constitutional outweighs the importance of deciding whether a state law provision is valid (even if the state is California). So the Court could just let the Prop 8 and Arizona cases ride, possibly leading to a remand to the Ninth Circuit (from whence both come) to reconsider in light of whatever the Court decides in the DoMA cases. If that happens, the saga of those two cases will continue well into 2014.
Chris Geidner at Buzzfeed has counted the days, and if the Justices want to hold off until all the briefs from all the parties in all the DoMA cases are in, the first conference at which the Court could consider granting cert will be November 20. This means that the only argument slots open will be in mid to late spring 2013, and the decision will almost certainly not be out until June 2013.
The wheels of justice turn slowly…