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Supreme timing, part 1: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial

9th Circuit Court of Appeals DOMA trials Prop 8 trial

This post is Part 1 of a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court.  You can read Part 2Part 3Part 4 and Part 5 at

By Jacob Combs

In a bout of incredibly serendipitous timing that nobody could have predicted, within the span of a week, both the First and Ninth Circuit Courts of Appeal have paved the way for the Massachusetts DOMA cases and the Prop 8 case to be heard at the U.S. Supreme Court.  As always, there are a few caveats to keep in mind.  First, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, which is defending DOMA on the wishes of House Republicans due to the Justice Department’s decision not to defend the law, could potentially ask that the 3-judge panel decision made by the First Circuit be granted a rehearing by what’s called an en banc panel made up of all the appellate court’s active judges.  This en banc rehearing would essentially be another intermediate step at the First Circuit before the case could move to the Supreme Court.  Such a move, however, would have a small chance of succeeding, given that the court is currently composed of five judges, making the 3-judge panel that struck down DOMA a clear majority to deny rehearing.  And, of course, the Supreme Court has discretion in which cases it wishes to hear, which means that the justices do not necessarily have to take up any given appeal.  (In fact, less than 1 percent of cases are taken up by the high court each year.)

When it comes to the DOMA cases, it is very unlikely the Supremes would not take up the appeals, given that a failure to do so would result in an act of Congress being declared unconstitutional and unenforceable in four states (and Puerto Rico!) while leaving it the law of the land in the other 46.  On the other hand, it seems quite feasible the Court would decline to hear the Prop 8 case, given the Ninth Circuit’s clear efforts to limit its decisions to California only and not address any larger federal questions.

With all of these complexities in mind, it’s worth revisiting a question about which much ink (both digital and otherwise) has been spilled: is it better for marriage equality if the DOMA cases reach the Supreme Court first, or if the Prop 8 case does?  Any answer to this question is necessarily rooted in the imprecise tea-leaves science of court-watching, but it is nevertheless a conversation worth having, especially considering the fact that the ground is now set for one or two high-profile marriage equality cases to make their way to the high court within the next year or so.  Writing yesterday in the Los Angeles Times, Douglas NeJaime of Loyola Law School argued, “Although Perry may provide more dramatic and compelling litigation, the DOMA cases present the Supreme Court with the best way forward.”  And at Towleroad, the ever-insightful Ari Ezra Waldman lays out the arguments for why DOMA should come before Prop 8.  (I have to credit the many commenters on Waldman’s post for giving me some of the ideas that led to this series.)

I firmly agree with the argument that the best possible outcome for marriage equality at the Supreme Court in the next year or so is for the Court to consider the DOMA cases, uphold the lower courts’ rulings striking down the law, and decline to hear the challenge to the Ninth Circuit’s Prop 8 decision.  This is not to say that this outcome is the one that I truly wish for; on the contrary, in my heart I want the Supreme Court to take up the Prop 8 case and choose to side with Judge Vaughn Walker’s powerful and persuasive arguments that marriage discrimination is simply unacceptable under the U.S. Constitution.

But while I am an optimist at heart, I am a realist as well, and while it is important for all activists to be impatient, and to push the envelope, and to refuse to settle for less than everything they know is right and true, I think the most realistic scenario is almost as good for us as my imagined one.  There are three reasons for this: 1) the different resonances that the DOMA case might have with the Court as opposed to the Prop 8 case, given the Supremes’ ideological makeup, 2) the distinct constitutional implications that striking down DOMA would have compared to striking down Prop 8 and 3) the wide-reaching and perhaps hitherto under-appreciated effect that a DOMA win would have for marriage equality, including in a post-Prop 8 California.

Starting tomorrow, I will explore one of these arguments in detail each day, and on Friday I will wrap up the series with a conclusion about the importance of the timing of the two cases.  This entire series is meant to delve more deeply into the issues than a one-time post would allow and, I hope, will inspire a vigorous debate around the issue of timing.  While these pieces represent my own opinion and my reasoning for holding that opinion, I hope that those who feel differently (or perhaps see flaws in the arguments I make) contribute to the discussion in the comments.  As I said earlier in this introduction, predicting the actions of the Supreme Court is at best an art and not a science, but it is still an important exercise for our community, since it helps us look at the reality of the legal landscape in which we live rather than the one in which we might wish to live.  The recent decisions of the First and Ninth Circuits mean we are living in an exciting time where matters of great importance are to be decided.  It helps if we go into them knowing where we stand.

Tomorrow, in Part 2 of this series, I’ll explore the different reception that the DOMA cases might have at the Supreme Court as opposed to the Prop 8 case, given the political and ideological makeup of the current nine justices.


  • 1. Sagesse  |  June 11, 2012 at 12:36 pm


  • 2. Ann_S  |  June 11, 2012 at 12:40 pm

    The Commonwealth Club will be hearing from three heroes of the marriage equality movement Thursday at 6:

    I'll be there! Who else would like to come?

  • 3. DaveP  |  June 11, 2012 at 2:21 pm

    Hi Ann! Just bought my ticket, see you Thursday!

  • 4. Ann_S  |  June 11, 2012 at 2:27 pm

    See you there, Dave!

  • 5. 415kathleenk  |  June 11, 2012 at 2:35 pm

    Wish i could go! Will be in Bakersfield(!) My best to you, John and Stuart.

  • 6. Ann_S  |  June 11, 2012 at 2:41 pm

    We'll miss you, Kathleen!

  • 7. Tim in Sonoma  |  June 11, 2012 at 12:56 pm

    I have to work Thursday evening otherwise I would be at the Commonwealth Club.
    This inevitably will lead us all to marriage equality, just how soon?

  • 8. Don Gaudard  |  June 11, 2012 at 1:13 pm

    Here is something to consider when pondering whether or not the SCt will take up the Prop 8 case, which everyone agrees is limited to the "taking away of a right previously held from gays but not from anyone else". In Diaz v. Brewer in Arizona, this is exactly what happened. The 9th Circuit recently refused an en banc hearing on this, so the injunction granted to prevent enforcement of the law is still standing. The benefits which the gay partners were getting will continue to be provided to them.

    In a number of legislative bodies and universities, gays have had health benefits granted to their partners, and now many of these legislative bodies are "taking away these previously granted benefits."

    Taking up the Prop 8 case could deal both with the Diaz case and with all the legislative bodies which are steadily removing our benefits. I know that the SCt moves slowly and doesn't want to get ahead of the country, but the opinion polls, the number of people living in jurisdictions with gay marriage, and the fact that 5 judges and 20 bankruptcy judges have all held DOMA unconstitutional leads me to HOPE that they will take up Prop 8 and be done with it all in one fell swoop! Probably wishful thinking on my part.

  • 9. Lymis  |  June 11, 2012 at 3:12 pm

    We need to be clear – the Prop 8 ruling wasn't just about "taking away previously granted benefits." It was taking away previously granted benefits from a specifically targeted group for the pure purpose of expressing disapproval of that group, with no legitimate government purpose for singling out that group.

    If Prop 8 had stripped state benefits or even marriage rights from ALL citizens, the analysis might have been very different. But singling out a specific minority for the purpose of expressing disapproval of them was unconstitutional.

  • 10. Bill S.  |  June 11, 2012 at 1:50 pm

    I have always thought that the Supreme Court could very well take the Prop 8 case and with the DOMA cases also heading to them only increases the chance they'll take Prop 8 as well. I think both rulings will be affirmed, the DOMA decision probably by a 6–3 but the Prop 8 decision by a narrow 5–4.

    The question worth focusing on is if the Supreme Court will delve in to the question of scrutiny as this is what has the ability to radically change the legal landscape on gay issues. If they stick with rational basis with bite, it won't help us a whole lot in the future.

  • 11. Lymis  |  June 11, 2012 at 3:15 pm

    I agree it would be best if they declared us a suspect class and declared that some level of heightened scrutiny applies. But as long as they don't close that door and declare that we are officially NOT subject to heightened scrutiny, we're still better off then we were – because that "with bite" is a very useful tool.

    If they waffle around with what is likely to be some variation of "because of the nature of the case before us, we do not need to rule on whether heightened scrutiny applies, because this fails on rational basis" it will still be a Supreme Court decision saying that merely discriminating against gay people is not a legitimate government interest.

  • 12. Jacob Combs  |  June 15, 2012 at 7:47 am

    Great points, Bill and Lymis. I addressed the scrutiny issue elsewhere in the series, to a point. I agree that we definitely need a heightened scrutiny/suspect class argument from the Supreme Court, but again, I don't know if this court is there yet. I think they probably know that we're getting to that point, but for now if they seek to be narrower they can just keep going on the rational basis with bite track. It would seem though that simple rational basis would no longer cut it for LGBT cases–thankfully.

  • 13. truthspew  |  June 11, 2012 at 4:00 pm

    And interesting Rhode Island sits in the 1st District. I see a federal lawsuit against the state of Rhode Island coming, even though the governor did grant recognition if marriage is performed OUTSIDE RI. It's all got to do with our civil union law. That's going to be the sticking point.

  • 14. goldentriangleglbt  |  June 11, 2012 at 6:32 pm

    I can see where you get a limited focus on prop8 if its about removing rights. However, the Supreme court is notorious for bringing up points not presented before them concerning any particular case. It could be wishful thinking on my part however if SCOTUS takes up the case its possible and even likely they will see other constitutional flaws not yet recognized or even argued. Bottom line is that Both DOMA and Prop8 are classifying citizens unconstitutionally. These laws are entrenched in removing rights not providing them. These laws are based on sex and religion.

    Attorney's I have spoken with believe that both of these cases have merit. Not only that but finding Doma unconstitutional would force the Federal government to recognize gay marriage. While Prop8 could potentially reverse every state anti gay marriage law or state constitutional provision. SCOTUS is not beholden to the limits of the attorney's arguing the cases they can pretty much go where they want.

  • 15. Dr. Brent Zenobia  |  June 11, 2012 at 8:45 pm

    Given that the SCOTUS reversed itself on the 5-4 Bowers v. Hardwick decision a scant 17 years later in Lawerence v. Texas, I believe they will think twice before coming to another ideological 5-4 decision striking down same-sex marriage rights in either Perry or any of the DOMA decisions. The swing judge – Kennedy – knows which way history is unfolding, and I doubt he will want to be remembered the way Justice Powell was when he provided the crucial vote in Bowers.

  • 16. goldentriangleglbt  |  June 12, 2012 at 6:06 am

    Hey thanks for the thoughtful comment and shepardized references they were helpful. However my point isn't just about the personality of the present court or particular justice. My point is that SCOTUS is not restricted to a lower courts attempt at throttling the scope of a case. Should SCOTUS take up Perry v. Brown it is not only possible but likely given the DOMA case that the Court will strike down Same Sex Marriage restrictions. Its even Possible that the Court will take up both of them at the same time using one for a ruling to cover both cases. let me be clear I said it was POSSIBLE not that they would actually do that. My underlying point is this SCOTUS has broad powers there is no voter backlash only a legacy. One thing is certain if they do NOT take up Perry or DOMA this issue is going to revisit them soon.

  • 17. Jacob Combs  |  June 15, 2012 at 7:49 am

    It's very true that the Supremes don't have to limit themselves to the Ninth Circuit's narrower holding. I would also agree with Dr. Zenobia that this Court (and Kennedy) don't want another Bowers, which is why I think it's very likely they won't take up the case. A Supreme Court ruling upholding Prop 8 would be extremely problematic, given where the country is heading. But I don't think this Court is ready for a marriage equality Loving v. Virginia.

  • 18. Dicussions on DOMA and Pr&hellip  |  June 11, 2012 at 7:27 pm

    […] Dicussions on DOMA and Prop 8 going to SCOTUS […]

  • 19. NancyH  |  June 11, 2012 at 9:36 pm

    My money is on Prop 8 not being heard by SCOTUS. It’s too specific to one state and not every state has ballot initiatives. It doesn’t affect many people, despite the fact that California is the most populated state.

  • 20. Colleen  |  June 12, 2012 at 6:27 am

    Here's a question: if prop 8 goes to SCOTUS, will Judge Walker's findings of fact be binding, or will they have to argue it all again?

  • 21. Steve  |  June 12, 2012 at 7:19 am

    All appeals court cases dealing with matters of law are reviewed de novo. They can take previous findings into account if they like, but they aren't bound by it.

    Also, Walker's findings were pretty much ignored in the appeal trial. The case has a very different track now

  • 22. Jacob Combs  |  June 15, 2012 at 7:50 am

    Steve is right–and that's exactly the point I'm making. Judge Walker's findings of fact were tremendous, and his decision is excellent. But the Ninth Circuit set the case to follow a very different track, and I think it would be odd for the Supreme Court to instead go back to Walker's broader argument. That said, the findings of fact will still stand. But sadly, they're not really what's at issue in the case in its current form. Of course, that could change with the Supremes.

  • 23. Dylan  |  June 12, 2012 at 7:16 am

    Why can’t we just ban marriage at the gov’t level? I mean it’s just a flimsy paper contract me and the BF should be able to pony up to any gar bar and sign it in public making our relationship official on our terms. Just tax everyone evenly and then no one would have to bother anyone about this marriage BS. Marriage is obviously a failed institution that straight people should give up on since it never works. I don’t see why we have to waste time and money on such nonsense. Everyone gets taxed and in the eyes of the gov’t NO Relationship is special or even recognized since the laws cannot ever legislate every optional family configuration. Why don’t we move more towards that? Relationships are nothing unique or special and officially recognizing them for any reason is pointless since no one cares about your relationship except you.

  • 24. NancyH  |  June 12, 2012 at 1:17 pm

    @Steve “Also, Walker’s findings were pretty much ignored in the appeal trial. The case has a very different track now”

    And from what I gather, good reason in terms of the fate of marriage equality just in California. The ruling was crafted to address the issue of taking away a right that was once given. Granted, that is completely different than Walker’s decision and it goes without saying that Walker’s decision was better for the entirety of marriage equality. But with Prop 8, we’re dealing with one law in one state.

    Whatever prevents Prop 8 from being ruled constitutional by SCOTUS (a very real threat given the court’s make-up and recent rulings, I don’t trust them at all) is a win in my book.

  • 25. Bruce  |  June 15, 2012 at 2:09 pm

    Is there any potential the 9th circuit court of appeals ruling could apply to Washington state if it is not appealed or if an appeal is denied by the Supreme Court?

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