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Where things stand with Prop 8 and DOMA at the Supreme Court

DOMA trials LGBT Legal Cases Prop 8 trial

By Scottie Thomaston

We have been paying close attention to the DOMA and Prop 8 cases at the Supreme Court, as well as Arizona’s domestic partner benefits case. Some of the cases were ready for a conference on September 24, where the Court would decide whether to take any of them up for briefing, argument, and full review this term. As we’ve written, the cases were held and nothing was decided at that conference or in the weeks after.

The responses to the various petitions that were due have been filed with the Supreme Court. Parties can reply to these responses, but they are not required to do so. It seems pretty likely that we can expect replies, though.

The next conference is Friday, October 26. It is unlikely that the Court would deal with DOMA or Prop 8 at Friday’s conference (and indeed SCOTUSBlog’s ‘Petitions to Watch’ for the conference don’t list those cases.)

The Court created its list for the October 26 conference on October 3. It was completed on October 10; this is the list for the types of cases that would include the ones we are watching. None of the cases we are paying attention to are on the new list.

There is a conference November 2 but it seems unlikely the Court would take a look at these cases at that one.

It is more possible that the cases might be taken up at the November 9 conference. The list of cases for that conference was started yesterday.

After that is the November 20 conference. The list for that conference will be created beginning October 29 and completed November 5. Given recent developments – and the fact that November 20 is after the election, among other reasons – it seems most plausible the Court would decide which of these cases to take up at the late November conference. This would mean we could learn which cases the Court will hear the next day (Wednesday the 21st) or the following Monday, the 26th.

Given that Windsor is one of the cases in front of the Court and it reached them through petitions for certiorari before judgment at the appeals court, and there is now a judgment at the appeals court (along with promises by the Justice Department and the Bipartisan Legal Advisory Group (BLAG) to take further action in light of the Second Circuit decision) it’s unclear if there would be any sort of delay in terms of any new filings in the case. But if the cases aren’t taken up until November 20, that could allow enough time to pass anyway.

Whichever cases the Court takes up, it is expected that oral argument would be in February or March, and a decision on the constitutionality of Section 3 of DOMA (as well as, possibly, Prop 8 ) would be issued in June 2013. If the Court denies the Prop 8 petition, after some legal housekeeping is completed at the Ninth Circuit, Prop 8 would be eliminated.

h/t Kathleen for some of this information


  • 1. lazerhaze  |  October 25, 2012 at 10:22 am

    I despise that politics (the election) is playing part in this. The SCOTUS needs to do it's job and decide on Prop 8 already. Justice delayed is justice denied!

  • 2. ALittleToTheLeft  |  October 25, 2012 at 10:29 am

    I agree with this comment. SCOTUS is acting cowardly in this matter. The Prop 8 issue has been going on for way too long and the results of the election should have NOTHING to do with how the court decides. I can't help but believe that the court is waiting to see who will be president so they can decide in a way that would make THAT person happy.

  • 3. Scottie Thomaston  |  October 25, 2012 at 10:48 am

    Well I'm not sure that we can know if the election is playing a part. Or what part it's playing. (For example there are real questions over how the case would proceed under a Romney DOJ or if Democrats retake the House. Perhaps nothing so questionable that it would cause a delay, but I could see them being cautious to watch what happens there.)

    So, maybe politics, maybe not.

  • 4. bendreyfus  |  October 25, 2012 at 5:03 pm

    That would make a difference for DOMA, but not for Prop 8.

  • 5. Ryan Slattery  |  October 25, 2012 at 11:00 am

    I don't like it from a purely fundamental standpoint, however, I think it is important to note that if (a) we get what we want with the Prop 8 case NOT being taken by SCOTUS and (b) that decision were to come before the election, it would give conservatives plenty of ammunition to rally the base. It would make a pretty good case for evangelicals who otherwise aren't very excited by Romney to come out and vote for him. The future of the Court could very well hang on this election, so if we have to wait a few weeks more to mitigate the possibility of Romney appointees, I'm for that.


  • 6. Mike in Baltimore  |  October 25, 2012 at 2:45 pm

    The decision to grant or not grant cert is not a final decision on the case. It just means that SCOTUS has agreed to hear the cases. Oral arguments generally follow a period of time for receipt of briefs, then discussion of the briefs and arguments, then a decision. Except in extremely rare cases, this can take from two to nine months. With the elections now less than two weeks away, the oral arguments and final decisions will almost certainly happen AFTER the elections, even if the decisions are arrived at immediately after the oral arguments.

    If cert is granted, then that might be an indication that some or all of SCOTUS doesn't agree with the decisions made earlier by other courts (District? Appeals?), and thus is looking for a reason to change or overturn those decisions.

    And SCOTUS might be attempting to decide if any or all the parties to the suits have standing or not, and if not, if there is anyone remaining who can argue one side or the other. If not, is the case moot, or sent back down to a previous court (if so, which one?), and if any of the previous courts' decisions 'hold water'. For Prop H8, does that mean the District Court's decision holds and the Circuit Court's very narrow decision get rescinded? In the DOMA cases, does that mean all the arguments made be BLAG get tossed, or do the arguments by DoJ take precedence? Remember, DoJ didn't change it's opinion on the Constitutionality of DOMA until after the District Court issued an opinion.

    Also remember, there are still some DOMA cases that have been decided in Circuit Courts, but have not yet been appealed. Is SCOTUS waiting for a specific case, or waiting to combine all cases (whether they are at the SC now or not)?

    There could be MANY reasons SCOTUS has not issued a decision on granting cert or not in any of the pending cases, and not just for political reasons, if political reasons are part of the reasons or not.

    One further point – it is now rare for SCOTUS to schedule more than two oral arguments per day. On October 29, 30, and 31, SCOTUS has scheduled two oral arguments on each of those days. The first conference after those oral arguments is November 2 (the Friday prior to the election). It's doubtful that SCOTUS will be able to issue a decision on those cases until after the Election, let alone issue a decision on any cases not yet granted cert.

  • 7. bendreyfus  |  October 25, 2012 at 5:04 pm

    If they deny cert on Prop 8, then that would be a final decision.

  • 8. Mike in Baltimore  |  October 25, 2012 at 10:51 pm

    What happens if they deny cert at SCOTUS, but send it back to the District or Circuit Court?

    What happens if they decide if one or more parties doesn't have standing? At what point did they or did they not have standing (District court? Circuit court?)? Maybe they are delaying deciding cert until they can determine if one or more parties have standing or not, and when?

    Is SCOTUS waiting for a specific DOMA case? Is SCOTUS waiting for specific DOMA cases (one or more not yet at SCOTUS) to combine and argue in one session? Is SCOTUS waiting for certain DOMA cases, then scheduling back to back arguments on the DOMA cases and Prop H8?

    I don't know the answer to ANY of the above questions, and I sincerely doubt if you do, either. In fact, maybe only nine people know the answers and the reason for not accepting or denying cert in any case already at SCOTUS – the nine sitting Justices of SCOTUS.

  • 9. bendreyfus  |  October 26, 2012 at 4:13 am

    If they deny cert, then that's a one-line order with no further instructions, and it doesn't go back to the lower courts for any further proceedings – it's over. These other outcomes (decisions on who has standing, etc.) only happen if they grant cert (which is of course a possibility – I didn't claim otherwise). I'm not claiming to know what's happening and why – I was just responding to your first sentence, "The decision to grant or not grant cert is not a final decision on the case."

  • 10. Mike in Baltimore  |  October 26, 2012 at 3:39 pm

    "The decision to grant or not grant cert is not a final decision on the case."

    So if SCOTUS decides to grant cert, it is a final decision? No further action can or will be taken?

    And SCOTUS MUST grant cert to decide to send a case back to a previous court.

    ALL denials of cert are a one line comment? ALL? NO exceptions?

    Maybe you should reconsider when you consider:

    The petition for a writ of certiorari is denied. The
    Chief Justice took no part in the consideration or decision
    of this petition."

    The petition for a writ of certiorari is denied. Justice
    Kagan took no part in the consideration or decision of this

    The motions of petitioner for leave to proceed in forma
    pauperis are denied, and the petitions for writs of certiorari
    are dismissed. See Rule 39.8. As the petitioner has
    repeatedly abused this Court's process, the Clerk is directed
    not to accept any further petitions in noncriminal matters from
    petitioner unless the docketing fees required by Rule 38(a) are
    paid and the petitions are submitted in compliance with Rule
    33.1. See Martin v. District of Columbia Court of Appeals, 506
    U.S. 1 (1992) (per curiam)."

    The petition for a writ of certiorari is denied. Justice
    Kagan took no part in the consideration or decision of this

    And that is just a small selection of the decisions on cert issued on Monday, May 14, 2012. Each and every one of the above were MORE than a single line.

  • 11. W. Kevin Vicklund  |  October 26, 2012 at 10:17 pm

    Not sure if Mike is simply a moron or that fucking mendacious.

  • 12. Mike in Baltimore  |  October 25, 2012 at 2:07 pm

    "I despise that politics (the election) is playing part in this."

    And you absolutely know politics is playing a part, how? As Scottie says (paraphrasing), it might be, but it might NOT be, playing a part in the SCOTUS deliberations.

    Maybe the deliberations are being (publicly) delayed by SCOTUS trying to discern if any party to the cases have standing or not, and if not, how that might affect the cases, what happens to the cases, what to tell the various lower courts, and what happens to the status of each of the cases if they find that any party does not have standing.

  • 13. W. Kevin Vicklund  |  October 25, 2012 at 2:59 pm

    Again, determination of standing can only come (and must come) after cert is granted. You are essentially arguing that they are delaying holding the conference so that they can first hold the conference. Also, it still wouldn't explain why Diaz v. Brewer is being held.

  • 14. Mike in Baltimore  |  October 25, 2012 at 11:26 pm

    Maybe SCOTUS is waiting to rule on other cases which could potentially make the entire case moot.

    If the case is moot, then there is no need to schedule briefs, oral arguments, and decide (in conference) on the decision. After all, once cert is granted, the schedule of briefs and oral arguments are almost always determined, also.

    Or maybe SCOTUS is waiting to combine the case with Prop H8, but can't yet grant cert until Prop H8 is accepted. But maybe SCOTUS wants to hold the oral arguments of Prop H8 on the same date as the arguments for/against DOMA, but it is waiting for one or another DOMA case to reach SCOTUS.

    There are probably only nine people who know the correct answer to why Diaz v Brewer is being held – the current Justices at SCOTUS.

    As to the issue of standing? "Someone who seeks injunctive or declaratory relief 'must show a very significant possibility of future harm in order to have standing to bring suit.' Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir. 1990), cert. denied, 112 S. Ct. 875 (1992)."

    In other words, the earlier any issue of standing can be determined and decided, the faster the case can go after that determination. And if it's determined that one or more parties do not have standing, then no further court time (read expense) needs to be spent on that case unless and until it comes up again.

  • 15. New  |  October 25, 2012 at 10:51 am

    Thank you Scottie Thomaston and Kathleen. I appreciated your insight, but I never hated so much that word "unlikely". 🙂

  • 16. Mackenzie  |  October 25, 2012 at 10:53 am

    I feel the election is playing a part. Quite frankly I am disappointed but approve of the wait. I truly believe Prop8 will be rejected for review. It sucks people have to wait even a day longer, but I recognize a decision like this could throw moderate states over the edge to Mitt Romney. This would be bad for all sorts of reasons. I don't want Romney/Ryan replacing our soon to retire liberal side of the supreme court bench. Just my opinion though.

  • 17. Mike in Baltimore  |  October 25, 2012 at 2:47 pm

    "I feel the election is playing a part."

    Gut feeling? Probably just your digestive tract digesting your last meal.

  • 18. dong90806  |  October 25, 2012 at 4:24 pm

    It's very frustrating to have the non-lawyers complain about the delay and when those knowledgeable about the law explain the reasons for the delay, you still complain. PLEASE, become familiar with the issues or at least ask questions about what is causing the delay instead of postulating something that has absolutely nothing to do with the delay.

  • 19. Mark Mead-Brewer  |  October 25, 2012 at 11:52 am

    I don't see how scheduling to hear the case would have any effect on the election. The oral arguments won't;t even be scheduled till well after the election, and their verdict/decision even more so. I think they are just being jerks about it.

  • 20. Mike in Baltimore  |  October 25, 2012 at 3:05 pm

    And yet, there are still some who are undecided about who they will vote for (or against) in the election. Some of the American electorate is (to put it kindly) ill-informed about some, many, or all things court and/or politically related.

    As an example, in Virginia, the state had a personal property tax that through the years was whittled down to just vehicles (thus the reason it was called 'the car tax'). As things were whittled off the classification of personal property tax, the state tried to keep the dollar amount raised from the classification from dropping, thus the final personal property tax item (vehicles) meant that there was a very large tax on vehicles. Several years ago, a Democratic candidate for Governor promised to eliminate the PPT, but didn't quite accomplish it after election. The next election, his party was thrown out of the Governor's mansion, and even though the electorate disagreed with just about everything advocated by that party's candidate (the electorate just wouldn't acknowledge it), the opposing party's candidate was elected (that's much of the reason why Virginia elected George Allen as Governor). One issue (that was greatly outweighed by other issues), but that one issue was the reason people voted in the manner that they did.

    IMO, THAT is one of many reasons why one issue voters should be avoided like the plague.

  • 21. Larry  |  October 25, 2012 at 2:18 pm

    If SCOTUS takes the case, since this would be a landmark decision, it probably wouldn't be announced until next June regardless of when it's argues (just like the health care and immigration cases were announced last June). So whether SCOTUS conferences the DOMA/Prop 8 cases in October or November probably won't make much of a difference in the end.

    If however, SCOTUS is postponing the Prop 8 case until they deny cert, and that's because they're waiting for more DOMA petitions, that's kind of jerky of them. I don't think it's because of the election though, there's enough plausible legal reasons to not jump to that conclusion.

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