Am I correct in saying there can be no final say on the Prop 8 or DOMA from the Supreme Court if they ultimately find that the defendants do not have standing to appeal? The lower Court rulings would then be the final say in those cases?
Yes. The Supreme Court has given itself two outs in
Windsor (the 2nd Circuit DOMA case) and one out in
Perry (the Prop 8 case). They did not grant cert yet in
Gill (the 1st Circuit DOMA case), which may be an indication that they plan to decide all substantive issues in
Windsor.
They will be taking cert on all substantive issues, but they will also be deciding:
1) Whether the fact that, in
Windsor, the DOJ agrees with the Second Circuit and will not be appealing the case deprives the Supreme Court of subject matter jurisdiction. (This is an interesting issue I hadn't considered before.)
2) Whether the BLAG in
Windsor has standing.
3) Whether the intervenors in
Perry have standing.
And they could decide
Windsor or
Perry (or both) on those grounds, without getting to substance.
