Supreme Court: Maybe Monday, maybe not; Maybe only one

by on October 12, 2012  •  In Constitutional law, DoMA, Marriage, Supreme Court

Supreme Court

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…

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3 Responses to Supreme Court: Maybe Monday, maybe not; Maybe only one

  1. Rick October 13, 2012 at 5:16 AM

    A string of gay rights cases has spurred intriguing speculation — even at the early petition stage — of how the Supreme Court might decide to proceed. While these cases all seek an overarching inquiry regarding the level of constitutional scrutiny that should apply to sexual orientation discrimination, they each raise distinct issues under the Court’s jurisprudence of equal protection and due process. As such, the Court’s decision(s) regarding whether to grant any review, the number of reviews, and the sequencing of reviews has far reaching consequences and is perhaps no less important than the Court’s actual ruling in a particular case.

    As Professor has suggested, for example, if the Court decides to review only one DOMA case and remands the Prop 8 and Arizona cases, we will have achieved an incremental progress with the Court setting a precedent for any future ruling on the constitutional right to gay marriage. Or, if the Court agrees to hear all of them at once, then it will truly be anyone’s guess as to the final outcome. In that scenario, I can only hold my breath and keep my fingers crossed.

  2. Jay October 13, 2012 at 10:16 AM

    This is the first time I have learned of the possibility that the Court might remand Prop 8 and the Arizona case to the Ninth Circuit pending their ruling on DOMA. I think it would be an outrage for the Court to do this. Prop 8 and the Arizona case are quite different from each other and from the DOMA cases. To hold them hostage to DOMA would seem to compound the injustice that the plaintiffs in these cases have already experienced.

  3. Pingback: Supreme Court forecast: Windsor's the one and only

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