Supreme Court to hear DoMA and Prop 8 cases, including standing

by on December 7, 2012  •  In DoMA, Marriage, Supreme Court

Supreme Court
The clerk’s office of the Court just announced that certiorari has been granted in Windsor v. U.S., a challenge to Section 3 of DoMA, and in Hollingsworth v. Perry, the federal constitutional challenge to Prop 8. The surprise twist: the Court has asked the parties in both cases to brief the question of whether the respective petitioners have standing.

Following is the text of the orders:

12-144
HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In
addition to the question presented by the petition, the parties
are directed to brief and argue the following question: Whether
petitioners have standing under Article III, §2 of the
Constitution in this case.

12-307
UNITED STATES V. WINDSOR, EDITH S., ET AL.
The petition for a writ of certiorari is granted. In
addition to the question presented by the petition, the
parties are directed to brief and argue the following
questions: Whether the Executive Branch’s agreement with the
court below that DOMA is unconstitutional deprives this Court of
jurisdiction to decide this case; and whether the Bipartisan
Legal Advisory Group of the United States House of
Representatives has Article III standing in this case.

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3 Responses to Supreme Court to hear DoMA and Prop 8 cases, including standing

  1. Kevin December 7, 2012 at 5:50 PM

    How do you rate the likelihood of the following:

    1. SCOTUS also grants cert on Gill.
    2. SCOTUS denies cert on Gill.
    3. SCOTUS puts all other cases on hold pending resolution of Windsor.

    I was praying it would be Gill. It seems like such a slam dunk. Heightened scrutiny seems more of a risk… What do you think?

    • Nan Hunter December 9, 2012 at 1:40 AM

      The Court chose Windsor because Justice Kagan would have to recuse herself in Gill, but not in Windsor. This has been obvious for two years – see post here. Just because the Court of Appeals in Windsor used heightened scrutiny does not mean that the Supreme Court’s decision on DoMA will be any different than if they had granted cert in Gill. They will write the decision the way they want to write it. My guess is that the Court will neither grant nor deny cert in Gill, but instead hold it pending the outcome in Windsor.

  2. Jay December 8, 2012 at 10:40 AM

    Nan, I hope that when you have absorbed this, you will post about the decision to review Prop 8. I am also interested in why the Court raised the question of standing in the Windsor case? I vaguely remember one judge speculating on whether BLAG had standing, but I don’t think it was in the Windsor case. I think it was in one of the cases from California. As I recall, the judge was pondering whether a single chamber of a bicameral legislature could defend a statute. His reasoning was that both Houses are necessary to pass a law, and therefore both Houses would have to agree to defend it when the Executive branch decides not to do so. Is this the question that the Supreme Court wants briefed and argued?

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