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Prop 8 at the Supreme Court: what to expect at the November 30 conference

DOMA trials Prop 8 trial

By Scottie Thomaston

Back on September 24, the Supreme Court held its first closed-door conference to determine which cases it will take up for full review, and among the cases were several challenges to Section 3 of the Defense of Marriage Act, as well as Hollingsworth v. Perry, the constitutional challenge to California’s Proposition 8. The Court, however, moved those challenges (along with an attempt by Arizona Governor Jan Brewer to deny gay and lesbian couples domestic partnership benefits) to a new conference date twice: first to November 20, then, November 30.

At its conference on November 30, the Court will review the eight petitions for certiorari related to Section 3 of DOMA, as well as Prop 8 and the Arizona Brewer v. Diaz petition. The Justices will vote privately on whether to hear each petition. It takes four votes to grant review of a case (although it takes at least five votes for a majority opinion to finally decide the case after oral arguments and briefing.) The Court will announce the following Monday which cases it will review. There is a slight chance of a miscellaneous order on Friday, the 30th, but that seems unlikely. It is likely the Court would review the constitutionality of Section 3 of DOMA for one main reason: the Court has stated repeatedly that when an appellate court strikes down a federal law with a wide reach, they are inclined to review the lower court’s decision. Two appeals courts, the First Circuit Court of Appeals, and the Second Circuit Court of Appeals, have now struck down Section 3 of DOMA as unconstitutional. House Republicans, tasked with defending the law through the Bipartisan Legal Advisory Group (BLAG) have only filed a petition for review in one challenge to Section 3 of DOMA: the First Circuit’s Gill/Massachusetts set of consolidated cases. The rest were filed either by the Justice Department or the plaintiffs themselves, most of them before judgment at the courts of appeals.

In terms of the challenge to Prop 8, the way forward is less clear. As we wrote on September 24, the day of the first conference, “it seems unlikely that the Court would be ready to issue a broad ruling in the Prop 8 case bringing marriage equality to the nation. It would also seem like a strange move for the Court since the Ninth Circuit explicitly narrowed its ruling to apply only to California, and the legal issue before the Court in its current form is whether California’s withdrawal (through a ballot initiative) of gay and lesbians citizens’ state constitutional rights violates the U.S. Constitution. For that reason, it’s good news if the Court declines to hear the Prop 8 case (and marriages would be able to resume in California); it might not be a great sign if the Court agrees to take up the case.”

Ted Olson and David Boies, representing the plaintiffs in the case, formally opposed Supreme Court review in a filing. The legal team has made several public comments on the pending case, with Olson suggesting most recently that he is unsure whether the Court should hear the case:

Ted Olson, the conservative Washington lawyer who joined David Boies to lead the legal attack on Proposition 8, acknowledges he is torn over whether the Supreme Court should hear the case.

“We won the case, and if they don’t take it, our clients have won. They will be allowed to marry,” Olson said. “But if they take the case, it could lead to a broader victory. We believe gays and lesbians have a constitutional right to be treated equally. And if it is a constitutional right, you shouldn’t have to try to win at the ballot box in every state.”

Boies has suggested that there are “more than five votes” to strike down Prop 8.

And Professor Nan Hunter, among others, has speculated that the Court may hold the Prop 8 case until it reaches a final decision on the constitutionality of DOMA. Once the final DOMA opinion is released, the Court could send the Prop 8 case back to the Ninth Circuit to take a new look in light of the legal guidance laid out in the Court’s opinion. If that happens, there would be no announcement on the fate of the Prop 8 case until at least June 2013.

The Court could also decline to review the Prop 8 case outright, though we may not find about a denial until later the following week. If that happens, marriage resumes in California immediately after the Ninth Circuit takes care of some housekeeping issues with the case.

If the Court grants review in any of these cases, they will lay out a briefing schedule and oral arguments would likely be sometime around March, with a decision on the merits in June 2013 at the end of the current term.


  • 1. Kevin  |  November 27, 2012 at 4:16 pm

    Let's be real here. If the court decides to take Prop 8 that is NOT good and I can assure you they will not enable gay marriage is California. Face the music. This whole mumbo jumbo about them taking Prop 8 case and then ruling in Prop 8 favor or even a nationwide marriage vote is highly unrealistic, and over ambitious. Not with THIS supreme court. What every single pro gay ally should be rooting for is SCOTUS rejecting to take the Prop 8 case and instead taking up DOMA. Point blank.

  • 2. Bob  |  November 27, 2012 at 5:21 pm

    I will be extremely disappointed if SCOTUS sends it back to the 9th to "clarify" their ruling.

  • 3. Bob  |  November 27, 2012 at 5:23 pm

    It's unlikely they take it up given that Prop 8 was set up to only affect California.

  • 4. Kathleen  |  November 27, 2012 at 5:54 pm

    For those who get the email notices from the Perry Court, the notice that just went out is a letter from the City and County of San Francisco to the 9th Circuit asking the 9th Circuit to give SF advance notice if a mandate will issue.

    What this means: IF the Supreme Court denies cert, the 9th Circuit will follow with a "mandate" – a procedural technicality that allows its ruling to go into effect. Once that mandate issues, then marriages can resume in California.

    However, don't read too much into this letter. It in no way suggests that SF has any reason to know whether or not SCOTUS will deny cert. This is fairly standard procedure for SF; it has always asked for advance notice of any possible major activity from the 9th Circuit, recognizing that it will impact the city.


  • 5. SHOES THROWER  |  November 27, 2012 at 7:40 pm

    It could also vacate and send the case back to the Ninth Circuit to decide if a state's ban on same-sex marriage is constitutional. See Dayton Board of Education v. Brinkman, 433 U.S. 406 at 414 (1977) (holding that "[t]he question of whether a rescission of previous Board action is, in and of itself, a violation of appellants' constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took")

    If it does this, and decides to give a full hearing to one of the DOMA cases, its decision in that case will ultimately determine the final outcome of the Prop 8 litigation.

  • 6. SHOES THROWER  |  November 27, 2012 at 7:42 pm

    And yet, could not a decision on DOMA potentially reverse the Ninth Circuit's decision on Prop 8?

  • 7. Nancy  |  November 27, 2012 at 9:31 pm

    California should do away with propositions altogether. The only two good ones to come out of it in the last 30 years were medical marijuana and Prop 30. Since then we've had a ban on marriage equality, failed marijuana legalization, a do-over for 3 strikes, numerous failed anti-abortion bills and prop 13.

  • 8. David o  |  November 27, 2012 at 10:53 pm

    Can't wait!!! We are getting married on the 9th … I'm counting the days .

  • 9. Jenni  |  November 27, 2012 at 11:01 pm

    I wouldn't get my hopes up so quickly dude.

  • 10. Straight Ally #3008  |  November 27, 2012 at 11:13 pm

    I admire your confidence – worst-case scenario, you take care of the legal contract afterward. That's definitely one for the "pro" column for SCOTUS denying cert…I almost can't follow it this week, too harrowing.

  • 11. Jeff  |  November 27, 2012 at 11:33 pm

    What happens if SCOTUS says they are not taking the Prop 8 appeal because the 9th circuit erred in its granting the partitioners standing? Does the original ruling by Judge Walker become the final say then?

  • 12. Steve  |  November 28, 2012 at 5:01 am

    At the very least they need to introduce a super-majority requirement. 50%+1 should never be enough to amend a constitution.

  • 13. Sammy  |  November 28, 2012 at 6:32 am

    Unlikeley, because Prop 8 is about the states marriage laws while DOMA is about the federal legislation. Unless the court takes DOMA and also goes out broadly to say same sex marriage is not allowed by constitution (thereby nullifying the laws in all states) then there would be no effect on Prop 8 and also keep in mind the SCOTUS generally prefers to rules as narrowly as possible and have little impact as possible because they do not want to be seen as legislating from the bench unless it is necessary.

  • 14. Sammy  |  November 28, 2012 at 6:35 am


  • 15. Johyn  |  November 28, 2012 at 7:30 am

    This argument assumes that there is a legitimate government interest for 18k same sex couples to be grandfathered into one set of rights, and no one else. Clerical convenience based upon an arbitrary date, is not a legitimate government interest.

  • 16. Lymis  |  November 28, 2012 at 7:54 am

    Not a lawyer.

    It strikes me that it would be unlikely to be the final say as such, but you're right that if the petitioners didn't have standing and the state didn't appeal, the Walker ruling would be the end of things in California, and marriage would continue – but the Walker ruling also stated that denying marriage rights is federally unconstitutional, so it would be in direct conflict with the constitutions of a number of states and the laws in still more. That would inevitably cause further legal action of some kind, which might end up overruling the Walker decision, or at least those aspects of it.

  • 17. RepublicanLutz  |  November 28, 2012 at 8:57 am

    You say let's be real, but your comment is overly pessimistic.

    It only takes four votes to grant cert. That is important to remember when considering the possible outcomes. A scenario where four justices grant cert in hopes of convincing Kennedy to join them is not implausible. They discuss these issues in conference to a certain extent, but they are not mind readers and there have been cases where one bloc or the other votes to grant cert only to end up being disappointed by the swing vote. It can be easy to misread others.

    My personal opinion is that there is no way that Kennedy votes to uphold bans against SSM when forced to confront the issue directly. He may think it in the best interest off the Court to avoid that issue for a few terms and build precedent with cases like the DOMA set, but if forced, I believe he'd vote the right way.

  • 18. fiona64  |  November 28, 2012 at 10:20 am

    Ejercito, when are you going to stop pretending to be a lawyer?

  • 19. fiona64  |  November 28, 2012 at 10:22 am

    This argument also presumes that young Mr. Ejercito (Shoes Thrower) is a lawyer and knows what he's talking about. Neither of these is the case.

  • 20. Bill S.  |  November 28, 2012 at 3:46 pm

    The initial decision to grant same-sex marriages was a constitutional duty under the *state* constitution, not the federal constitution, so I don't see this applying here as it does not implicate a federal question.

  • 21. Bill S.  |  November 28, 2012 at 3:48 pm

    The Supreme Court would probably not issue a summary decision on standing. They would accept cert and review the question of standing de novo.

  • 22. davep  |  November 28, 2012 at 7:37 pm

    For the hundredth time shoesthrower, the DOMA trials and the Prop 8 trial are different issues. One is a question of a state denying civil marriage rights via ballot initiative, the other is a question of the feds denying federal recognition of civil marriages that have already been deemed legal by the states. Regardless of what is ruled in either of these, it cannot and will not affect the other.

  • 23. Leo  |  November 28, 2012 at 8:35 pm

    That's overstating the case. If, for example, SCOTUS rules in the DOMA cases that sexual orientation is a suspect classification, that would most certainly affect the Prop 8 case, as well as the Hawaii and Nevada and probably other cases.

    That said, even if SCOTUS were so schizophrenic as to do what our friendly troll postulates, it would be too late for Prop 8. Prop 8 would already be gone from California's constitution and could only be resurrected by enacting a new amendment. At least, that's what competent lawyers say.

  • 24. Lymis  |  November 29, 2012 at 7:02 am

    Hmm. Interesting. Not a lawyer here.

    But if the Supreme Court found that heightened scrutiny applies to sexual orientation in a DOMA ruling, I'll agree it wouldn't affect the Prop 8 ruling as it applies to California – it would simply have a stronger basis for doing what it does now.

    But mightn't it actually force the Ninth District to base its ruling on something else, with the effect of extending the protections beyond California? Without heightened scrutiny, the Ninth was able to limit the ruling to just the removal of marriage rights from one group that already had them. With heightened scrutiny, might it not be able to declare that denying them was wrong in the first place, extending it to the other states in the Circuit?

  • 25. Lymis  |  November 29, 2012 at 7:07 am

    Actually, it does, but the ruing in the Ninth obfuscated that. If, as lots of SCOTUS rulings have stated, marriage is a fundamental right of all citizens, and under the 14th Amendment, you can't just pick out some citizens and exclude them from the fundamental rights granted to others, whether or not same-sex couples have the right to marry just like opposite sex couples most definitely is a federal question.

    The Walker decision in Prop 8 made that clear. SCOTUS can get away with ignoring that by going the way the Ninth did, but there still is an unresolved federal question.

    Are gay people citizens, or aren't we?

  • 26. Drew  |  November 29, 2012 at 11:28 am

    Why would the SCOTUS hold off on taking the Prop 8 case or not until DOMA cases are decided? Given the SCOTUS wouldn't issue broad ruling striking down gay marriage bans, I don't see why they would even take it up. I see them denying review as the ruling is so narrow.

  • 27. Kathleen  |  November 29, 2012 at 1:06 pm

    While the Prop 8 and DOMA cases are, in fact, different legal issues, there are things the Supreme Court might articulate in the context of the DOMA cases that could impact the Prop 8 ruling. Besides the obvious issue of level of scrutiny (which might not ultimately impact the Perry outcome), the Court could clarify, e.g., what constitutes a "legitimate" governmental interest in the context of rational review for an equal protection claim.

  • 28. Brian H  |  November 29, 2012 at 1:22 pm

    I don't think The People (in the State of California) should be able to amend the State's Constitution via popular vote. It exists to prevent tyranny of the majority. A true democracy is "2 wolves and 1 sheep deciding what's for dinner."

  • 29. Bill S.  |  November 29, 2012 at 3:41 pm

    I'm going by what Shoes Thrower quoted: "[t]he question of whether a rescission of previous Board action is, in and of itself, a violation of appellants' constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took"

    We don't know whether or not the "board" (in this case the State of California) had the (federal) constitutional duty to grant same-sex marriages. The District Court said they did, but this was not affirmed on appeal and is presumably not a question that will be answered in this case.

  • 30. Amir  |  November 29, 2012 at 10:33 pm

    Jenni, please work on your own straight relationship and how horribly you heteros have destroyed society, marriage and so many other things

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