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Breaking: Supreme Court plans to conference Prop 8 case on November 20

DOMA trials Marriage equality Prop 8 trial Supreme Court

By Jacob Combs

The Supreme Court will likely consider the Prop 8 case during its conference on November 20, when the justices will meet to decide which cases they will take up in the coming term.  The case’s materials have been distributed for that conference, and the docket page for the case (now called Hollingsworth v. Perry) has been updated to include the new information.

In addition, the four DOMA cases currently before the Supreme Court (Windsor, Pedersen, Golinski and Massachusetts) have also been scheduled for the conference on November 20, according to their docket pages.

The Court is expected to release an order list on Monday, November 26 that will delineate the cases from the November 20 in which it has granted or denied review.  In addition, the Court could hold off considering the Prop 8 and DOMA cases until later, as it did before when they were scheduled for a conference on September 24.

The votes of four justices are required for the Court to grant review in any specific case.  If the Supreme Court chooses not to rehear the Prop 8 case, the Ninth Circuit’s ruling striking Prop 8 down will stand, returning marriage equality to California.


  • 1. Straight Ally #3008  |  October 29, 2012 at 8:30 am

    I'll be honest, I'm glad this is after the election. It's hard enough focusing on the four ballot measures. Monday, November 26, 2012 – big red letter day.

  • 2. Gregory in SLC  |  October 29, 2012 at 9:44 am

    ….and the Frankenstorm….

  • 3. CHRIS  |  October 29, 2012 at 10:39 am

    The silver lining in the Frankenstorm, is that it will shut up Mitt Romney's BS machine long enough for Obama to remind everyone they are glad to have a president who CARES about the country. If Mittens were president, he'd just let everyone drown.

  • 4. Rick  |  October 29, 2012 at 5:42 pm

    Or, as I call it, Sandycane.

  • 5. Bill S.  |  October 29, 2012 at 8:40 am

    Is it certain that they will release their decision the following Monday? I thought decisions were released on Monday for Friday conferences. Could we possibly have an announcement that very Tuesday or perhaps Wednesday?

  • 6. Afonso  |  October 29, 2012 at 8:40 am

    The Court will also consider on the same date Brewer v. Diaz, the domestic partners' benefits case from Arizona. It'll be quite a day!

  • 7. Mark  |  October 29, 2012 at 8:41 am

    I am glad they are finally going to decide whether or not to hear the case. I was hoping it would have been settled by now, but I am glad at this point they are delaying the decision until after the election as well.

  • 8. Mike in Baltimore  |  October 29, 2012 at 4:58 pm

    If SCOTUS was delaying the hearing SOLELY for the election, then why did they schedule the conference in September, then reschedule it for the second conference after the election?

    If SCOTUS was delaying it SOLELY for the election (Tuesday, November 6, 2012), they would have scheduled conference for the first conference after the election, Friday, November 9, 2012.

    Oh, and the 'decision' will ONLY be whether to hear the case9s0 or not, and if they accept the cases, there almost certainly will be no indication of what the ultimate decision will be. If the case(s) is accepted. The ONLY certainty is that a decision will be handed down by the end of June, 2013.

  • 9. Kathleen  |  October 29, 2012 at 8:42 am

    Also on the list: Diaz v. Brewer, the appeal of the preliminary injunction Lambda Legal obtained keeping in place Arizona state employees' domestic partner benefits.

    And we might get some news as early as November 21.

  • 10. dong90806  |  October 29, 2012 at 9:00 am

    Nov. 20 is a Tuesday, 2 days before Thanksgiving. There is no conference set for the Friday after Thanksgiving. So, it's likely they will announce their decisions on Wednesday, Nov.21. However, they could hold off until the following Monday, Nov. 26. But what would be the point of delaying the announcement of their decisions?

  • 11. Larry  |  October 29, 2012 at 9:09 am

    I thought it would be the same timetable as the first conference. If they accept any of the cases, they announce it the next day (Wednesday November 21). If they deny cert on any of the cases, they announce it the next Monday (November 26). If we hear nothing, it means that they're still considering whether to accept or deny the cases.

  • 12. Jamie  |  October 29, 2012 at 9:24 am

    From AFER:

    "The Court is expected to release an Order List with its decisions on cases it has granted or denied review from its November 20 Conference by Monday, November 26. Though AFER is hopeful that we will hear something from the Justices by that day, the Court does not have an obligation to set a timeline for making a decision on granting or denying review."

  • 13. Jamie  |  October 29, 2012 at 9:21 am

    This sounds more logical.

  • 14. Supreme Court to Decide W&hellip  |  October 29, 2012 at 9:31 am

    […] The American Foundation for Equal Rights, which brought the federal lawsuit against Proposition 8 in California, reports the high court indicated Monday that it would meet on Tuesday, November 20 to conference Hollingsworth v. Perry, formerly known as Perry v. Brown. The Supreme Court justices will also consider whether to hear the four challenges against the Defense of Marriage Act (Windsor, Pedersen, Golinski and Massachusetts) on that same day, according to Prop 8 Trial Tracker. […]

  • 15. Manuel  |  October 29, 2012 at 9:46 am

    Did anyone noticed it said "likely condsider prop 8". Does that mean once again we will be waiting even longer if its not taken up. Is there an experation date, that if the courts never decide on what to do, does it just go away and the states ruling becomes final or can this type of delay go forever?

  • 16. John D  |  October 29, 2012 at 10:01 am

    I was wondering about this too, but luckily I ran into a constitutional law scholar on Saturday (that happens all the time, right?). His answer was that SCOTUS can do whatever they like, including punting it to the next term. Officially, there's no deadline. On the other hand, in usual practice, yeah, they were probably holding all the marriage cases in order to look at them against each other, decide which to hear, which to dismiss, which to remand pending decision in whichever case they do hear.

    His guess was that they would hear Windsor, deny Perry, and remand the other DOMA cases pending a decision in Windsor.

  • 17. Matt N  |  October 29, 2012 at 11:04 am

    Curious if there is precedent for SCOTUS punting a case received this early in the year to a subsequent term? Any experts out there know?

  • 18. Jamie  |  October 29, 2012 at 3:27 pm

    Windsor is a very strong case. I hope this is true.

  • 19. PDx_Str8_Supporter  |  October 29, 2012 at 3:10 pm

    My understanding is that if the USSC denies cert on Prop 8 (if it is not taken up) then Prop 8 gets overturned right then and there.

    It might take a few weeks after that for CA to settle the paperwork, but if this happens, it will be a *major* victory – one that will bump up the % of citizens of the US living in states with marriage equality to about 30% (give or take depending on ME, MD, & WA).

    This becomes even bigger if the USSC rules that section 3 of DOMA is unconstitutional and that 30% of the population will have a federally recognized marriage.

  • 20. David Henderson  |  October 29, 2012 at 10:13 am

    Is there any list of all the cases distributed for a particular date, or do you just have to check each case's docket page one at a time?

  • 21. Anthony  |  October 29, 2012 at 10:20 am

    How on earth is this leaking out of the supreme court? See, all the justices are a bunch of political hacks, nothing more.

  • 22. Anthony  |  October 29, 2012 at 10:21 am

    Oh wait never mind, it was updated on the website. My bad.

  • 23. TomTallis  |  October 29, 2012 at 11:55 am

    Let's hope for a nice Christmas present from the SCOTUS for California.

  • 24. Anthony  |  October 29, 2012 at 12:12 pm

    It would technically be a Cyber Monday gift lol

  • 25. Odavid  |  October 29, 2012 at 1:30 pm

    Me and my partner are having our wedding ceremony in California on December 9th I hope we can legally marry, but even if we can it will still be an amazing wedding 🙂

  • 26. PDx_Str8_Supporter  |  October 29, 2012 at 3:06 pm

    Interesting. I wonder if the USSC is purposefully waiting for post-election results (ME, MD, MN, WA) to factor into their decision, trying not to effect those elections with their decision to hear or not hear, or is the timing just circumstantial….

  • 27. dong90806  |  October 29, 2012 at 5:18 pm

    No, I'm sure the Court was waiting for the Windsor case for several reasons. First of all, in the Gill/Mass case, Justice Kagan would recuse herself since she worked in the Solicitor General's office while the case was pending. That would leave a 4-4 decision — not good for the Court. With Windsor, Kagan does not have to recuse herself, and it would be a 9-justice court to decide.

    Secondly, in Windsor the Ct of Appeal heald that sexual orientation was deserving of "heightened scrutiny." Taking Windsor allows the Court to take this issue head-on whereas in the other cases, they were decided on "rational basis" grounds for various precedential reasons.

    Windsor is as clean a case as it gets. There's an old legal maxim: Bad facts make bad law.

  • 28. Mike in Maryland  |  October 29, 2012 at 5:28 pm

    "I wonder if the USSC is purposefully waiting for post-election results"

    Of that were the case, they would have scheduled the conference for the FIRST conference after the election, Friday, November 9, 2012. If scheduling the conference on November 9 would have some affect on the elections, the closing date and time for the polls is being ignored in one or more states.

    In Maryland, the polls close at 8:00 PM, and it is VERY unusual for results to be delayed past midnight – most of the time, much earlier. Washington state votes entirely by mail, but the election boards count (but don't release the counts) of all ballots received prior to the 'close of the polls', and continue to count the ballots as they are received at the 'polls' prior to the 'poll closing' but not yet counted. It is VERY unusual for the reporting of Washington state final (or almost final) results to go into Thursday (Eastern time). Maine and Minnesota, if anything, fall between the two extremes, but almost always report much closer to the timing for Maryland results than Washington state (extremely close Senatorial elections [in Minnesota] excepted). True absentee ballots are generally not counted until 8-10 days after the election, but the counting of those ballots would NOT affect the voting, as they need to be mailed by a date and time certain, and that date and time certain is prior to three days after election day.

    And SCOTUS, by nature, should not consider any politics. If it did, Loving v Virgina would have been taken up not in 1967, but several decades later. And the consideration of (so-called) ObamaCare would have been delayed until after the election.

    Oh, and please look up the dictionary definitions of 'effect' and 'affect'. The two words are NOT interchangeable.

  • 29. Guest  |  October 29, 2012 at 6:09 pm

    Is it really necessary or even helpful to comment on the previous poster's use of language? Your post isn't perfect either, but commenting on careless errors doesn't add to the dialogue. We're all on the same side, here, and the open conversation is important.

  • 30. PDx_Str8_Supporter  |  October 30, 2012 at 4:26 pm

    Oh I don't mind – I get those two words confused all the time :D.

  • 31. W. Kevin Vicklund  |  October 29, 2012 at 10:07 pm

    Circumstantial. The last of the required reply briefs for several of the DOMA cases were submitted on the 19th, but there was no conference that day. Thus, they had to wait until last Friday's conference to decide to distribute for the next open conference date. The list was already closed for Nov. 2 and Nov. 9, so the next available date was the 20th.

    Thus, if they were going to decide which, if any, of the same-sex cases to hear, the earliest they could compare and contrast all of them is the 20th.

  • 32. Kathleen  |  October 31, 2012 at 4:20 am

    I don't think the Court was waiting for the Windsor decision, but was just waiting for all the DOMA cases petitions to be ready to distribute for conference to distribute them all together. The last responses to the petitions weren't due until October 19. So, per the case distribution schedule, the soonest the the cases could have been put on a list would be October 24 for the November 9 conference and the next list was created October 29 for the Nov 20 list.

    It's possible that the 2nd Circuit wanted to issue its decision prior to completion of briefing on the DOJ cert petition in the case (Oct. 19), but I don't think SCOTUS was waiting for that decision before distributing the case to conference.

  • 33. Prop 8 Trial Tracker &raq&hellip  |  November 7, 2012 at 5:10 pm

    […] definition of ‘traditional marriage.’  Don’t forget: the Supreme Court has plans to conference the DOMA and Prop 8 cases on November 20; we could hear about a decision to consider […]

  • 34. Looking Ahead: The Seven &hellip  |  November 7, 2012 at 10:31 pm

    […] the Supreme Court set to consider whether to take up the Proposition 8 case in California later this month, the citizens of the […]

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  • 36. Rose  |  June 4, 2014 at 10:13 am

    Ryan…..California has been legally marrying Gay and Lesbian couples since June 2013……where have you been?

  • 37. brandall  |  June 4, 2014 at 10:35 am

    While we are waiting for SCOTUS and burning up the "refresh" icon…..interesting reading:

    Chief Justice of South Africa: I will protect gay rights despite being against equal marriage

  • 38. crema pastelera  |  June 4, 2014 at 11:58 am

    Curious if there is precedent for SCOTUS punting a case received this early in the year to a subsequent term? Any experts out there know?

  • 39. Big Rick  |  June 4, 2014 at 12:27 pm

    This article you are posting on is from October 2012, more than a year and a half ago. The Prop 8 case is long settled.

    If you are referring to one of the current cases that might eventually make it to SCOTUS, I suggest you post on one of the current topics. Click the Home button near the top of the page to see the current articles.

  • 40. Tarot gratuito  |  June 10, 2014 at 11:44 am

    Me and my lady are getting our marriage ceremony in California on December ninth I really hope we are able to legally marry, but even when we will it it's still an incredible wedding 🙂

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