Supreme Court decides to review Prop 8, DOMA

[Holmes]

More info will come in soon. The Prop 8 case questions whether California has the right to ban same-sex marriage under the 14th amendment, and whether the defendants have standing in the case under Article III. The Windsor (DOMA) case questions whether Section 3 of DOMA violates the equal protection clause under the 5th amendment, and whether House GOP leaders have standing in the case.

[Benj]

And it begins. They did not decide on the Arizona benefits case, for what it's worth. (That one may be headed for a denial of cert, which would be great news.)

[Joe Biden 2020]

It looks like it will be reviewed in March and ruled on in June, this is according to CNN's legal analyst Jeffrey Toobin.

[politicallefty]

I didn't expect SCOTUS to take up Prop 8. There's no way the decision will be a narrow one unique to the California situation, which is what I thought the Court would do by not taking it up. It does seem quite possible now that the Court might go for a 50-state ruling.

[Holmes]

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?

[Joe Biden 2020]

The swing vote here will be Anthony Kennedy.  He is a conservative judge, but has generally been favorable to gay rights.

[Benj]

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.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Anthony Kennedy is closer to having a genuine libertarian (after a fashion!) ideology than almost anybody else in US politics or governance, is the thing. Looking at him in that light it's often, though not always, possible to see how he'll vote on something.

I'm a little afraid, to be honest, but also excited.

[politicallefty]

Per SCOTUSblog:

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[Brittain33]

I have a hard time believing Kennedy would vote for a nationwide result in the Prop 8 case, so I don't consider it good news they took it, although I suppose they could eventually rule on procedural grounds. I'm pretty confident that Sec. 3 of DOMA is DOA.

[The Mikado]

Gay marriage licenses start in WA state.



Isn't that the cutest thing ever?

[Thomas D]

Surprised they took both cases. Anyway there could be a split decision? Prop 8 is struck down but DOMA stands? Or vice versa?

[Brittain33]

Surprised they took both cases. Anyway there could be a split decision? Prop 8 is struck down put DOMA stands? Or vice versa?

Absolutely. It seems most likely they strike down DOMA but decline to strike down Prop 8. It's consistent with a (social) conservative states' rights position--if a state allows gays to marry, the precedent is that the feds recognize it, but if 50%+1 of voters in the state don't want it, tough luck for the homos.

[7,052,770]

Chances they make gay marriage legal in all 50 states (under 14th amendment grounds or otherwise)?

Chances they don't quite do the above, but make all states recognize a marriage performed in any state?

[I spent the winter writing songs about getting better]

Chances they make gay marriage legal in all 50 states (under 14th amendment grounds or otherwise)?

Close to nil. Kennedy isn't going to go for that (and really Breyer probably wouldn't either at least.)

Chances they don't quite do the above, but make all states recognize a marriage performed in any state?

Probably slightly less than 50%, Kennedy's not a culture warrior but he is kind of a states' rights stickler.

[True Federalist (진정한 연방 주의자)]

Chances they make gay marriage legal in all 50 states (under 14th amendment grounds or otherwise)?

Less than 50%.  If they affirm a right to same-sex marriage, it will be on Equal Protection grounds.  There is a chance they backdoor it by stating that the House lawyers don't have standing to defend DOMA.  That would have the practical effect of causing the Federal government to recognize state recognized same-sex marriages without issuing a precedent that says the government has to recognize those marriages and without having to tackle the issue of whether same-sex marriage is a constitutional right.

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Zero.  In the court's precedents, there are many examples unrelated to marriage where two states have laws covering the same subject but have different standards.  The court has consistently said that one state can't force its standard upon another.  The court has fairly consistently held the Full Faith and Credit Clause to only apply where two states have essentially the same standard in place.

[morgieb]

Prediction: they'll strike down Prop 8 and DOMA. This does not do much outside of California, however.

[Queen Mum Inks.LWC]

And now I owe someone a beer...

[Brittain33]

The thing about Prop 8 is that marriage equality groups will put a pro-SSM initiative on the CA ballot in 2016 and win, so this is wrapping up sooner or later.