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Here’s where things currently stand on DOMA and Prop 8 at the Supreme Court

DOMA trials Prop 8 trial

By Scottie Thomaston

Updated 1/9/13 at 3:10ET to reflect changed dates in the Windsor case.

Given the news yesterday that the marriage cases have been scheduled for oral arguments at the Supreme Court, we now have a general idea of how all this will play out for the rest of the year.

Hollingsworth v. Perry

This is the challenge to California’s Proposition 8. The Olson/Boies team will argue for the plaintiffs and the proponents’ lawyers will argue their side: there will be no outside counsel in this case.

Since there were no procedural steps to work out in this case, no briefing schedule was officially set by the Court in this case. However, there are rules to govern Supreme Court procedures and those generally guide the briefing schedule. According to the rules, the opening brief of the proponents of Prop 8 should be due January 22.

Then, on January 29, amicus curiae briefs in support of the proponents of Prop 8 are due.

Following that, on February 21, responses to proponents are due. These will be responses from both the plaintiffs and the city and county of San Francisco.

On February 28, amicus briefs in support of plaintiffs are due.

And finally, on March 19, the proponents’ reply brief is due.

Oral argument is set for March 26 at 10AM Eastern time. Currently, only one hour is allotted for argument, but this case is the only one scheduled that day. SCOTUSBlog has suggested that it is likely we will see the argument time expanded beyond one hour.

United States v. Windsor

This is Edith Windsor’s challenge to Section 3 of the Defense of Marriage Act (DOMA) led by the ACLU and the NYCLU. The Court accepted the question on Section 3 of DOMA’s constitutionality as it was presented in the Justice Department’s petition for certiorari and they added questions on jurisdiction and standing: whether they have the authority to hear the case given that the Justice Department agrees with the plaintiffs and the court below (the district court and the Second Circuit here) that Section 3 of DOMA is unconstitutional; and whether the Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans has Article III standing to do so. The Court appointed an outside attorney to argue against the Court’s authority to hear the Justice Department’s claims and against BLAG’s standing.

The first brief is due on January 22. The first brief will be from BLAG, arguing that Section 3 of DOMA is constitutional.

The Court-appointed attorney’s brief arguing against jurisdiction and standing is due January 24.

Following that, briefs on the jurisdictional question from the remaining parties (BLAG, DOJ, Edith Windsor) are due February 22. And reply briefs are due on March 20.

The Solicitor General’s (SG, on behalf of the Justice Department and the federal defendants) brief on the merits of Section 3 of DOMA’s constitutionality is due on February 22. And Edith Windsor’s merits brief is due February 26. Then, BLAG’s reply brief will be due March 20 – filed a week before oral argument as per Supreme Court rules.

Amicus curiae briefs from outside parties in support of Edith Windsor or the Solicitor General are due a week after the Solicitor General’s brief. According to the Supreme Court’s rules, other amicus briefs “shall be submitted within 7 days after the brief for the party supported is filed, or if in support of neither party, within 7 days after the time allowed for filing the petitioner’s or appellant’s brief.”

Oral argument is set for March 27 at 10AM Eastern time. Currently, as noted above in the Prop 8 case, only one hour is allotted for argument in this case, but this case is the only one scheduled that day. SCOTUSBlog has suggested that it is likely we will see the argument time expanded beyond one hour.

The Court ends its term by July 4, but they usually recess by the end of June. Typically, the bigger decisions are released in the last days of the term. Decisions in these two cases are expected near the end of June.

Thanks to Kathleen for providing some of these dates, and see also this post from Nan Hunter


  • 1. _BK_  |  January 8, 2013 at 10:44 am

    I am not too knowledgeable of Supreme Court proceedings, so I apologize if this question seems a bit silly – is there a possibility of same-day releases for audio recordings and/or physical transcripts?

  • 2. Scottie Thomaston  |  January 8, 2013 at 11:19 am

    There is usually a same-day typed transcript. Usually it's posted in the afternoon after the argument.

    They did same-day audio for the health care cases but that isn't typical. It's a possibility since these are big cases but the Court hasn't indicated if they will do that yet.

  • 3. Nad  |  January 8, 2013 at 11:44 am

    What are everyones predictions about a sweeping ruling legalizing gay marriage for all states? Is there any chance this could be the outcome?

  • 4. Theo  |  January 8, 2013 at 12:33 pm

    The most important advance from these cases making their way up the legal food-chain, is that LGBT's are no considered human-beings, and deserve heightened scrutiny.

    Previously, activist judges could say, pre Lawrence, "gays are criminals according to law, so they are not law-abiding, and therefore have no case" (High Tech Gays case)

    Now. all bans coming to court, will get this scrutiny now, and the defeat of Flop 8 makes Judge Vaughn's first ruling go to law when it comes to marriage.

    That's curtains, for marriage bans…

  • 5. Theo  |  January 8, 2013 at 12:33 pm

    no = now


  • 6. Bob  |  January 8, 2013 at 8:28 pm

    well said

  • 7. Nad  |  January 8, 2013 at 11:47 am

    Also if DOMA falls can people go out of state for gay marriage where it is legal and their resident state will have to recognize it

  • 8. Kathleen  |  January 8, 2013 at 11:59 am

    Nad, there is nothing in the Windsor case that deals with the issue of state recognition of out-of-state marriages. The only issue raised in the case is whether the federal government can continue to deny the federal benefits of marriage to legally married same-sex couples.

  • 9. Gregory in SLC  |  January 8, 2013 at 12:40 pm

    ….one can hope Olson and Boies can advocate some miracle ruling!

  • 10. Shax  |  January 8, 2013 at 1:23 pm

    On the Obamacare case, Kennedy wanted to strike down the entire law, even when the states only complained about the individual mandate.

  • 11. Theo  |  January 8, 2013 at 12:38 pm

    I think the resident states can discriminate, but the federal government cannot discriminate and force other states to discriminate against gays and only gays. while leaving all others, including str8 serial killers in prison, unaffect when it comes to their 100% intact marriage rights…

    (the LA Nightstalker married a woman, while in prison for serial murder…yet no "constitutional" amendment…?


  • 12. Eric  |  January 8, 2013 at 3:04 pm

    Current law is that the federal government can't force states to recognize other states' marriages. Which is why California doesn't have to recognize the Arkansas marriage of a fifty year-old man to a fourteen year-old girl.

    The bigger question is whether the states can discriminate on the basis of gender or sexual orientation when recognizing the fundamental right to marry.

  • 13. Lymis  |  January 9, 2013 at 7:54 am

    It appears, purely on its face, (I am not a lawyer), that it would be quite possible that the result would be that the federal government would consider us married, but that individual states, for purely state purposes, would not have to. So things like an employer whose insurance plan is not governed by federal law being able to deny coverage to a same-sex spouse might apply.

    Its a huge unexplored area, since there has never been a situation that I'm aware of where the federal government recognizes a marriage that the state of residence does not.

  • 14. Gregory in SLC  |  January 8, 2013 at 12:44 pm

    Its all so ridiculous. For example we married in CT, live in UT. Travel often to CO, NV and CA, but marriage not recognized in any of those states, but NV and CA have civil unions… and CO now considering(again civil unions)…so how does that affect our rights if move to either of those states? So if DOMA falls, does federal government recognize us in the "civil union-ed" states…grrrrr……

  • 15. exx-man  |  January 8, 2013 at 1:18 pm

    I would think that, should SCOTUS find DOMA unconstitutional, the federal government would have to recognize your CT marriage. Regardless of what state you live in you are still legally married in CT. The problem would be state recognition. I heard a couple of horror stories about the difficulty of getting a divorce in a non-equality state. Would things like hospital visitation and end of life decisions in the case of incapacity be affected? What about survivorship and probate issues? Is that federal? It's all becoming a huge mess! Ah, growing pains.

  • 16. sfbob  |  January 8, 2013 at 2:27 pm

    I will probably get this wrong but I'll make an attempt. As I understand it, unless some unexpectedly sweeping ruling in our favor emerges from the proceedings, what we'll see is that states will be free to allow or not allow same-sex marriages. They will be free not to recognize out-of-state marriages that go against their own public policy. This is nothing new though not something that occurs all that often. You're married in CT but you'll have to file your taxes as "single" in UT. If DOMA falls however you may or may not be able to file your federal taxes as married. If I'm not mistaken, how you file your federal taxes (and how you receive Social Security survivor benefits and so forth) normally is governed by the relationship status you held in the state where you live so while you have a legal marriage in one state, if you live in a place like Utah, you might still have to file your federal taxes as single. That's an issue to be hashed out but at least there is other kinds of precedent to follow besides simple discrimination.
    I had my own issues trying to figure out what "Full Faith and Credit" might mean here and long labored under the misapprehension that if you were married on one state, you were married in any state. That simply is not so (and applies to marriages other than those involving gay and lesbian couples). What it does mean is that if a court in one state issues a divorce decree or a child custody decree, those must be recognized as binding in other states. How that applies to survivorship and probate issues is less than clear.

  • 17. Steve  |  January 8, 2013 at 3:18 pm

    Remember that the lawsuit doesn't even challenge Section 2 of DOMA. So they don't even have to the use the public policy exception to the Full Faith and Credit Clause. They can still point at DOMA. And yes, some laws explicitly restrict a valid marriage only to the state of residence. But many will consider any marriage valid.

    America truly fucked up with its over the top federalism in some areas. There is no sense whatsoever in how different some trivial laws are from state to state. Ideally states should stop pretending that they independent countries.

  • 18. Gregory in SLC  |  January 8, 2013 at 3:21 pm

    tx for input. I've thought for a while that the IRS may be an important factor in furthering marriage equality… unconscionable difficulties with tax issues.

  • 19. karen in kalifornia  |  January 9, 2013 at 3:37 pm

    FYI. IRS ruling 555 of mid 2010 calls for legal ss couples (marriage, dp or cus) of states with community property file "shared" income. Currently this means legal couples in CA, NV and WA. We still file "single" but income is "shared." The ruling specifically states that the IRS ie. the Federal government is not recognizing ss legal relationships, but rather honoring state community property laws. So the confusing will continue because ss couples are treated differently even if Section 3 gets struck down.

  • 20. Joe  |  January 8, 2013 at 1:02 pm

    Does the Federal Government recognize gay marriage in the states that it is legal currently? I know any win will be good but I'm wondering how this win will change things ??

  • 21. F Young  |  January 8, 2013 at 1:35 pm

    No, Joe, because of section 3 of DOMA. That is why the Windsor case was launched. If it is susccessful, then the federal government will recognize same-sex marriages in those states where the states recognize them.

  • 22. sfbob  |  January 8, 2013 at 2:33 pm

    Generally speaking the answer is "NO" and that is why the current case matters. As usual however, it's more complex than that. There are situations where, notwithstanding the effect of DOMA, the federal government has to treat gay couples as married for certain purposes. For example, California, Oregon and Washington are community property states, so although the federal government requires couples living in those states (even if legally married in CA or WA) to file taxes as "single," each individual's income is considered, for tax purposes, as being the sum of the total earned by each member of the couple divided by two. One of the many irrational aspects of DOMA is that despite the clearly discriminatory intent of the law, the consequences occasionally work out in favor of the people who are targeted by it.

    Also the federal government is now generally (though probably not always) suspending efforts to deport the non-citizen members of married gay couples for visa violations. There's a certain amount of "we can do what we please if we feel like it because we're the government" involved in all of this.

  • 23. Matt N  |  January 8, 2013 at 2:51 pm

    The federal government isn't really recognizing gay couples as married in those states. It's simply recognizing that the individual states have designated the income of those couples as community property. Those couples still don't get to filed as "married", they simply are allowed to divide their combined income by 2 and each report half of it as "single".

  • 24. Eric  |  January 8, 2013 at 3:09 pm

    The IRS will also split federal withholding, but not quarterly estimated tax payments.

  • 25. Doug  |  January 8, 2013 at 6:48 pm

    Matt that is actually far better than filing as married. Married can't file the way you described, and that actually would produce significantly lower taxes for married couples.

  • 26. Steve  |  January 9, 2013 at 4:58 am

    Married couples can simply file jointly, which also allows them to split the total income among the two.

    Overall it depends on how the couple makes their money. It's good for "traditional" couples where one works and one stays at home. The working one effectively splits their income in half for tax purposes. But I think couples were both have a similar income may actually pay more if filing jointly.

  • 27. Doug  |  January 9, 2013 at 7:05 am

    Steve that is wrong, filing jointly does not allow them to split the income in two. The married phaseouts, deductions, and tax brackets are NOT twice the single. There is a huge difference.

  • 28. Doug  |  January 9, 2013 at 7:08 am

    Tax treatment for same sex couples in these states is better than it is for married couples. That is simple fact.

  • 29. Doug  |  January 9, 2013 at 7:13 am

    To be clear when I said married couples I mean couples the irs recognizes are married. Obviously same sex couples who are married in California are married.

  • 30. karen in kalifornia  |  January 9, 2013 at 3:39 pm

    To reiterate, the IRS does not "recognize" CA married ss couples as married. The IRS recognized the state community property laws.

  • 31. Doug  |  January 9, 2013 at 7:05 pm

    Karen yes and by not recognizing them as being married they are being given preferred tax treatment.

  • 32. Eric  |  January 9, 2013 at 7:48 pm

    The unlimited spousal deduction is preferred tax treatment only available to opposite-sex married couples.

  • 33. Eric  |  January 9, 2013 at 7:46 pm

    Doug, your claim is factually incorrect. DOMA cost my husband and I an extra $9,000 in federal taxes two years ago, that a similarly situated opposite-sex married couple would not have had to pay.

  • 34. Doug  |  January 9, 2013 at 8:11 pm

    Did you split all of your income in half based on the new IRS rules regarding community property states?

    I know married couples who pay tens of thousands in additional taxes a year because they are married and not in domestic partnerships.

  • 35. Doug  |  January 9, 2013 at 8:17 pm

    Domestic Partners living in California will be subject to the Alternative Minimum Tax after a combined income of 101,000, while Married couples are subject to it after 78,750.

  • 36. Guest  |  January 8, 2013 at 1:23 pm


  • 37. Str8Grandmother  |  January 8, 2013 at 3:30 pm

    GAME ON! Can't wait for the Justices questions in oral hearing. Keep the faith everybody, keep the faith, we're gonna WIN!

  • 38. Bob  |  January 8, 2013 at 8:34 pm

    so good to see your post,,,, the old crowd is gathering,,,, keeping the faith,,,, Game On!!!

  • 39. Tony  |  January 8, 2013 at 7:22 pm

    Any thoughts that congress might be motivated to pass the Respect for Marriage act before oral arguments so they don't have to suffer the indignities that will ensue?

  • 40. Straight Dave  |  January 8, 2013 at 7:54 pm

    Indignities? Congress???
    LOL x10

    Congress is
    1) so far beyond worrying about that or the country wouldn't be in the state it is now.

    2) way more concerned about getting elected and not risk pissing off even 1 constituent.

    3) more than happy to let SCOTUS clean up their mess.

    zero chance. won't even get a sniff in committee before July. Do you expect them to be responsible heroes? I don't.

  • 41. Straight Dave  |  January 8, 2013 at 8:01 pm

    Just watching Rachel Maddow now. A PPP poll rated Congress vs various other unpleasantries of life. Congress rated lower than cockroaches and root canals, barely out-polling only telemarketers and VD.

  • 42. Straight Dave  |  January 8, 2013 at 8:08 pm

    Here's the whole poll. Have a good laugh. This is not The Onion but the real PPP. They must be short of work now that the elections are over.

  • 43. Straight Ally #3008  |  January 9, 2013 at 5:33 am

    But in most cases I'd predict a very different answer if the poll asked, what is your opinion of your Congressperson. Despite hatred for Congress, generally we don't have anything against our own reps, so they keep getting voted in over and over. Such a paradox.

  • 44. Straight Dave  |  January 9, 2013 at 5:52 am

    That's what happens when everyone is self-centered. Nobody is thinking of our collective interests anymore. Personal success = team failure. If every district got all the special pork $ they wanted, the country would soon go broke….oh wait…

    "We have met the enemy and he is us" – Pogo, 1970

  • 45. Larry  |  January 9, 2013 at 6:33 am

    Nate Silver actually did a story on this. The problem is that most Congressional districts are gerrymandered to be totally noncompetitive. The number of competitive districts (less than a 5% vote difference between candidates) this past election was at a record low. The inner city districts will always go Democratic, and the rural districts will always go Republican, so all of those incumbents are safe regardless of how popular Congess as a whole is.

  • 46. Sagesse  |  January 9, 2013 at 7:36 am

    Silver also pointed out, however, that what scares legislators is not the challenge from the other party, but the very real risk of a primary challenge from within their own party.

  • 47. Straight Dave  |  January 9, 2013 at 9:37 am

    Well we just saw the GOP commit political suicide in MO and IN with that strategy. I still can't comprehend Richard Lugar not being in the Senate. That is one seriously messed up party….. or bunch of vioters…. or whoever is to blame

  • 48. Mike in Baltimore  |  January 9, 2013 at 8:19 pm

    The circumstances may now be changed, but one Congressman from Indiana was literally redistricted from the Indiana/Illinois state line to the Indiana/Ohio state line over the course of several years. And he was a resident of each district when the vote was taken, but he never had to move residence.

    And this happened not in the distant history of the state, but recently – many members of my family voted for him in the 1970s and 1980s.

  • 49. David Henderson  |  January 9, 2013 at 8:52 am

    According to the rules for amicus briefs, they're supposed to be filed within seven days of the party they're supporting. Since (for example) BLAG has three briefs they'll be writing (merits on 1/22, jurisdiction on 2/20, and reply on 3/20), does that mean that amicus briefs supporting BLAG on the merits will be due 1/29 and those supporting BLAG on the jurisdiction issue will be due on 2/27? Or would they all be due on 2/27 regardless of which topic they're focusing on?

    (Obviously it wouldn't 7 days be after the reply on 3/20, because that's the day of trial.)

    Assuming that each topic of amicus brief must be addressed separately, here's a consolidated timeline of the two cases:

    01/22 P8-Proponents opening
    01/22 DOMA-BLAG constitutionality, Jackson jurisdiction
    01/29 P8-Amicus for Proponents
    01/29 DOMA-Amicus for BLAG constitutionality, Amicus for Jackson jurisdiction
    02/20 DOMA-BLAG, DOJ, and Windsor jurisdiction
    02/21 P8-Plaintiffs reply
    02/22 DOMA-DOJ constitutionality
    02/26 DOMA-Windsor constitutionality
    02/27 DOMA-Amicus for BLAG, DOJ, or Windsor jurisdiction
    02/28 P8-Amicus for Plaintiffs
    03/01 DOMA-Amicus for DOJ constitutionality
    03/05 DOMA-Amicus for Windsor constitutionality
    03/19 P8-Proponents reply
    03/20 DOMA-Any jurisdiction reply
    03/20 DOMA-BLAG reply
    03/26 P8-Oral argument
    03/27 DOMA-Oral argument

  • 50. Kathleen  |  January 9, 2013 at 2:05 pm

    A few things:
    – Note that dates have changed for all briefs on jurisdiction/standing (including amicus briefs on the topic) except the reply, due to grant of extension after you posted this comment.
    – You're correct to assume that amicus brief due dates are based on the filing date of a brief by a party on a particular issue, not necessarily the first brief by any one party. So for example, BLAG's opening brief on the merits will be due Jan 22, and briefs supporting BLAG's position on the merits will be due Jan 29. But BLAG's brief arguing it has standing will be due (by new schedule) Feb 22, and any amicus briefs supporting a position that BLAG has standing will be due March 1.
    – In Prop8, Plaintiffs will not file a reply; only the petitioner does that. So Plaintiffs' and Plaintiff-Intervenor's responses are due on Feb 22.
    – Per the briefing schedule order, there won't be separate amicus briefs due dates supporting the DOJ and Windsor on the merits. All amicus briefs supporting these parties on the merits will be due on 3/1 (7 days after DOJ's brief)
    – "because that's the day of trial." There is no trial. There will be no presentation of evidence or testimony of witnesses.
    – Generally, the distinction between the primary constitutional issue(s) in a case and other issues that are included is made by referring to the former as "the merits" (as you did in your introductory paragraph) rather than "constitutionality," as all the issues involve constitutionality.
    – The inclusion of Windsor (plaintiff) in the briefing on jurisdiction/standing is there because Windsor is a party to the case. But Windsor's standing isn't at issue here, so we won't really see an amicus brief supporting Windsor on this issue (your note for 2/27). Instead, amicus briefs arguing against standing for DOJ and/or BLAG will be filed 7 days after the court-appointed amicus's opening brief on the issue, and those arguing for standing for DOJ and/or BLAG will be filed 7 days after those parties file their responses to that brief. We might see DOJ and BLAG arguing that it (as a party) has standing but the other does not. I'm not sure how Windsor will argue. She clearly has an interest in seeing the Court reach the merits, but not sure if she will argue that one or both have standing, but there won't really be amicus briefs in support of her, per se, no matter what position she takes.

    Here's the combined schedule as it currently stands:
    01/22 (1) P8: Proponents' opening brief
    (2) DOMA: BLAG's opening brief on merits
    01/24 DOMA: Court-appointed amicus's opening on jurisdiction/standing
    01/29 (1) P8: Amicus briefs in support of Proponents
    (2) DOMA: Amicus briefs in support of BLAG on merits
    01/31 DOMA: Amicus briefs opposing jurisdiction/standing for BLAG/DOJ
    02/21 P8: Plaintiffs' and Plaintiff-Intervenor's Responses
    02/22 DOMA: (1) DOJ's response on merits; (2) BLAG, DOJ, and Windsor Responses on jurisdiction/standing
    02/26 DOMA: Windsor's response on merits
    02/28 P8: Amicus briefs in support of Plaintiffs
    03/01 DOMA: (1) Amicus breifs in support of DOJ/Windsor on merits; (2) Amicus briefs in support of jurisdiction/standing for BLAG/DOJ
    03/19 P8: Proponents' reply
    03/20 DOMA: Any replies (BLAG on merits; court-appointed amicus on jurisdiction/standing)
    03/26 P8: Oral argument
    03/27 DOMA: Oral argument

  • 51. Mark  |  January 9, 2013 at 11:16 am

    What are the chances that the Supreme Court will not even take these cases due to lack of standing by the plaintiffs in the respective cases?

  • 52. SoCal_Dave  |  January 9, 2013 at 12:10 pm

    A question sort of related to Mark's (above):
    I notice the main article calls out the fact that the court has assigned an outside attorney to argue the jurisdiction issue for the Windsor case. But nothing was mentioned about the standing issue in the Prop-8 case. Wasn't that question re-opened by SCOTUS? Or am I confusing the two cases?

  • 53. Scottie Thomaston  |  January 9, 2013 at 12:20 pm

    The question will be briefed and argued in the Prop 8 case yes. But the attorneys disagree with each other on the issue so they'll argue their positions themselves and the Court won't appoint outside counsel.

  • 54. Straight Dave  |  January 9, 2013 at 12:28 pm

    The sweetest justice in the world would be if Prop 8 loses the whole farm and ends up wondering why they fought for standing in the first place. They had several chances to settle for "just" CA. Mr Cooper's gonna have a lot of 'splaining to do.

  • 55. Equality On Trial »&hellip  |  January 28, 2013 at 10:02 am

    […] January 29, would be the deadline for an amicus brief in support of the proponents of Prop 8 (the group who wants the marriage ban […]

  • 56. Equality On Trial »&hellip  |  February 7, 2013 at 9:45 pm

    […] next briefs in the case, including amicus briefs supporting Edith Windsor, are due the last week of February. Oral arguments at the Supreme Court will take place on March […]

  • 57. Equality On Trial »&hellip  |  February 13, 2013 at 5:29 pm

    […] Amicus briefs in support of the plaintiffs are due February 28. […]

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