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Department of Justice will file brief in support of marriage equality if Supreme Court hears case

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In an interview that aired on ABC, US Attorney General Eric Holder said that if the Supreme Court were to take up one of the challenges to same-sex marriage bans, the Justice Department would file a brief in support of marriage equality:

If the Supreme Court agrees to hear any of those cases, the Justice Department will file a brief with the court that “will be in support of same-sex marriage,” Holder said in a rare interview, sitting down with ABC News’ Pierre Thomas.

Holder said the brief would be “consistent with the actions that we have taken over the past couple of years.” The Justice Department has refused to defend the Defense of Marriage Act, which defines marriage as between a man and a woman, and its legal efforts to extend federal benefits to same-sex couples have been successful.

Asked if he believes bans on same-sex marriage “are unconstitutional”, Holder said bluntly, “yeah.”

Based on his comments (there is video at the link) it appears the Justice Department will argue that same-sex marriage bans should be reviewed under a heightened level of judicial scrutiny, and that they are unconstitutional under that standard. The administration made similar arguments in challenges to Prop 8 and DOMA. Ultimately, the Supreme Court dismissed the appeal in the Prop 8 case and declined to address the level of scrutiny in United States v. Windsor. The Ninth Circuit, however, has determined that the Supreme Court applied heightened scrutiny in Windsor without saying so.

Supreme Court building
Supreme Court building
Utah’s Attorney General has said that his office will ask the Supreme Court to hear Kitchen v. Herbert, the challenge to the state’s same-sex marriage ban that was held unconstitutional by the Tenth Circuit Court of Appeals weeks ago. The Supreme Court has discretion over its docket, and would not have to take up the Utah case or any same-sex marriage case. It takes four votes to grant review in a case.

No petition has been filed as of this writing, though it’s expected in the coming weeks. The earliest the Court would hold a conference on a petition would be September 29. If a petition isn’t ready by then, the next conferences that are scheduled are on October 10 and October 17. A decision in a case granted in the October ’14 term would come down by the end of June 2015.


  • 1. hopalongcassidy  |  July 14, 2014 at 11:21 am

    I'm a little confused on the timing…if Utah were to wait until Sept 28 (or I suppose the 26th since the 28th is a Sunday) f'rinstance, to file their petition would it be conferenced the next day, the 29th I guess I'm wondering if they would accept it right up until 9/29…it seems like there would be some deadline at least a bit before that date to allow enough time to at least read the thing…?

  • 2. DaveM_OH  |  July 14, 2014 at 11:26 am

    To be considered by the 29th, it has to be received by the 10th.

  • 3. B_Z  |  July 14, 2014 at 12:31 pm

    And the petitions aren't distributed until they receive the respondent's brief.

  • 4. hopalongcassidy  |  July 14, 2014 at 12:57 pm

    Okay, that makes sense, thanks, but the table in your link doesn't seem to say anything about the 10th on it. I guess I'm not reading it right….boy this stuff is so confusing.

  • 5. DaveM_OH  |  July 14, 2014 at 1:13 pm

    The last petitions to be considered at the Long Conference (Sep. 29) are those that make it on Summer List 25 and 26. 26 is reserved for In Forma Pauperis (i.e., people without the means to pay the docketing fee). Thus, list 25, which is Distributed on Sep. 10, is the last list to be heard.
    That said –
    A Case is not eligible to be placed on a Distribution list until 14 days after the Brief in Opposition is filed (though this time can be reduced to zero if the petitioners specifically request), and Utah has until September 23rd to file their Petition (plus 30 days after that for the Brief in Opposition). So the petition could be heard for the first time as late as November 25.

  • 6. MichaelGrabow  |  July 14, 2014 at 11:41 am

    Three opinions from the Fourth Circuit just published. Nothing from Bostic.

  • 7. MichaelGrabow  |  July 14, 2014 at 11:41 am

  • 8. Rik_SD  |  July 14, 2014 at 3:42 pm

    Does the 4th only rule on Mondays?

  • 9. Zack12  |  July 14, 2014 at 4:22 pm

    No, there are daily rulings so a ruling could come any day of the week.

  • 10. Rik_SD  |  July 14, 2014 at 4:26 pm

    ok, cool. Thanks for the answer 🙂

  • 11. Zack12  |  July 14, 2014 at 11:45 am

    I think the 10th ruling first threw a wrench into the 4th circuit's plans to issue a ruling early.
    Now both sides (and there will be a split) have new stuff to use in their rulings, hence why it's taking longer IMO.

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