SCOTUS and Marriage Equality

December 7, 2012 1:20 PM

The Supreme Court has decided to hear two marriage equality cases: California's Prop 8 case (Perry), and the Defense of Marriage Case (Windsor).

Scotusblog has extensive coverage on the issues here.

DOMA previously. Prop 8 previously.

posted by insectosaurus (9 comments total)

Any knowledgeable court-watchers have a guess as to how these might come down? Is it pretty much up to which way Kennedy jumps?
posted by kyrademon at 1:24 PM on December 7, 2012

One interesting angle is that in the Prop 8 case, SCOTUS wants to hear arguments about whether the proponents of Prop 8 have standing. I'm hoping this is so that they have an easy out - they can just throw out the whole thing for lack of standing. Though really, the easiest out would have been just not to take the Prop 8 case at all.
posted by insectosaurus at 1:24 PM on December 7, 2012

My money's on Kennedy not wanting to go down in history as the 21st century's Roger Brooke Taney.
posted by Rhaomi at 1:24 PM on December 7, 2012

On the one hand, this is great. And they chose the 2nd Circuit case (Windsor), which is really exciting because it a) doesn't require that Kagan recuse herself (like the 1st circuit case would have meant); b) has an extremely sympathetic plaintiff; and c) was decided by applying strict scrutiny to sexual orientation, which if successful would open the door to a lot of other really great gay rights litigation possibilities. Similarly, Perry is great because it will be argued by two of the greatest litigators ever, AND if successful would result in a right to gay marriage. Excellent choices.

On the other hand, they both explicitly mentioned procedural issues in the grants of cert. Which I actually think is somewhat terrifying/ominous and a sneaky way to take cases that are likely to prevail on the merits and throw them out of court on procedural technicalities, which would continue a really disasterous trend that the Roberts/Scalia court has been following lately by making it really hard for individuals to sue the government and/or corporations. AND it has the potential to shift the liberal-conservative composition of the court because some of the liberals may come out on the more conservative side of the procedural issues depending on their judicial philosophies. A loss in this way would be bad not only for gay rights advocates, but for social justice lawyering in general.
posted by likeatoaster at 1:26 PM on December 7, 2012 [3 favorites]

There are a lot of complex issues here. A. Gay Marriage (1) did the earlier substitute plaintiffs have standing? (if not lower court, full constitutional decision holds); (2) if earlier substitute plaintiffs had standing, then (a) should the District Court's decision declaring gay marriage unconstitutional on due process grounds be upheld?; (b) should the 9th Circuit's decision (on the narrow basis of granting a right and then taking it away in discriminatory fashion be the basis for decision (yes on this would invalidate Prop 8 and say nothing about gay marriage nationally).

B. DOMA (1) does the lower court's agreement with the Defendants (the US government) that DOMA is unconstitutional strip the Supreme Court of jurisdiction (this would mean DOMA might be unconstitutional from the get go); or (2) Is DOMA itself unconstitutional under the full faith and credit clause.
posted by Ironmouth at 1:28 PM on December 7, 2012

Any knowledgeable court-watchers have a guess as to how these might come down? Is it pretty much up to which way Kennedy jumps?

Sort of, but there's a chance that both cases could be thrown out on procedural grounds, which would amount to no change from the current law whatsoever.

FWIW, a good decision in Perry would not result in "gay marriage" or marriage equality. It would result in Californians getting their marriage equality back, and that's it.
posted by roomthreeseventeen at 1:28 PM on December 7, 2012

This is really a DOUBLE, since the discussion of this started in the SCOTUS FPP last week: "In a private conference this morning, the Supreme Court of the United Stated discussed ten petitions relating to the Defense of Marriage Act and Proposition 8."
posted by ericb at 1:29 PM on December 7, 2012

And in all likelihood, the decisions will be announced in late June, just before or after Pride, depending on when your local Pride events are.
posted by rtha at 1:30 PM on December 7, 2012

likeatoaster, I think the DOMA grant is good, because the current state of the law is terrible (no federal recognition of the marriages of same-sex couples, plus a circuit split).

But, I disagree that the Prop 8 grant is a good thing. If they had denied cert, the Ninth Circuit's narrow decision would have become the final decision, and I could get married in California for sure. Now, I don't know if I'll be able to get married in California - I have to wait. If they want to make a broader statement about marriage equality, they can do it in the context of the DOMA case - so there's nothing positive about the decision to take up the Prop 8 case.
posted by insectosaurus at 1:30 PM on December 7, 2012