Prop 8, DOMA Cases Don’t Make Supreme Court List

The Supreme Court released its list today of cases they will take up this session and none of the DOMA cases nor the federal Prop 8 case is on the list.

SupremesThe American Foundation for Equal Rights writes:

The Justices meet nearly every week to determine the cases they will take up. The next time we could hear something is Monday, October 1 at 9:30 a.m. EDT / 6:30 a.m. PDT, when the Court is expected to release a list of cases it is not hearing this Term.

Some have speculated that the Supreme Court may wait to consider our case until later this fall when the Justices will decide whether to grant review in several cases challenging the so-called Defense of Marriage Act.

Chris Geidner wrote, over the weekend:

If the court does consider all of those cases together, recent actions by the Department of Justice could put off a decision about Proposition 8 even further. On Sept. 11, DOJ filed two petitions for review in DOMA challenges — one in Edith Windsor’s challenge brought by the American Civil Liberties Union and one in the Pedersen case brought by Gay & Lesbian Advocates & Defenders. Even though the ACLU and GLAD already had requested Supreme Court review of those case, the DOJ filings mean that the House Republican leaders who have been defending DOMA in court would have had until October 11 to respond to DOJ’s filings. The court already has extended that deadline until Oct. 19. The petitions and responses in those cases would then be distributed “no less than 10 days after” the House Republican leaders’ brief in opposition to the petition is filed, which would be Oct. 29.

The earliest conference for briefs ready to be distributed on Oct. 29 would be the conference of Nov. 20 — well after the presidential election.


  1. Fritz says

    I’ve wondered whether the Supremes would look at the Prop 8 case. If they take it up, and affirm Prop 8, Roberts and Kennedy would understand that it would be the 21st century equivalent of the Dred Scott decision, and would mark them (Roberts, especially, since it’s his court) as worthy of mockery for all of history. To take it up, and affirm marriage equality would probably be unpalatable to Alito, Scalia, and Thomas, and possibly Roberts and Kennedy as well. But if they decline to hear it, then same-sex marriages becomes legal in California, but stops there.

  2. Anonymous says

    Despite all the punditry and speculation, none of us really know what the U.S. Supreme Court is thinking at this point and what their discussions entail. Justice Ginsberg intimated that the DOMA cases would be heard late in the court’s session, so I’d take that as a sign, but not a guarantee. Prop H8 is a complete wild card, for it lacks a federal question and there is still dispute at the federal level whether the supporters of Prop H8 actually have standing to defend it at the Supreme Court. We just have to ride it out, and we’ll no nothing about any of these cases till after the election, I’m certain.

  3. says

    True @Glenn, it is the name of the Act, but it is a misnomer since DOMA doesn’t defend any marriages from anything. Instead, it (in Section 3) singles out certain marriages for discrimination by denying couples in those legal marriages federal benefits. So, it’s quite appropriate that AFER puts “so-called” in front of the name, because the name implies something that simply isn’t true.

    As for the cases, the wait and see will continue . . .

  4. Diogenes Arktos says

    “So-called DOMA” reminds me that the Religious Right loves to refer to “so-called marriages” when they refer to legal marriages they pretend don’t exist.

  5. zekeaz says

    Remember it takes four votes for the court to agree to hearing a case. If they agree to hear the case it probably means they have four votes to uphold Prop 8. I’m guessing they are going to wait until after the election to see how the various state initiatives on marriage equality do at the polls. Passage will provide cover on the issue.

    Eventually, the court will have to resolve the “full faith and credit clause” issues which requires all states to recognize the laws of other states. The more states that legalize same sex marriage, the more complicated legally the situation will become. This election could be the tipping point for gay marriage in the U.S.

  6. Pete N SFO says

    Like a lot of you, I’m verrrry tired of waiting, but I also don’t live in a vacuum.

    If these cases aren’t announced until AFTER the election, I’m pretty okay with that.

  7. MiddleoftheRoader says

    Unfortunately, the Full Faith & Credit Clause of the US Constitution does NOT require any state to recognize a marriage that is performed in another state; that Clause only requires states to accept and recognize COURT judgments from a COURT in another state (and even then, there are exceptions).

    The DOMA issue that is being litigated in the courts right now is not about one state refusing to recognize a marriage from another state. Instead, the DOMA issue involves whether the federal government can refuse to recognize valid state marriages for purposes of federal laws (like Social Security survivor benefits, ERISA pension plan survivor rules, etc). This has nothing to do with the Full Faith & Credit Clause.

    Ultimately, the Supreme Court will end up deciding if one state can refuse to recognize a valid marriage performed in another state, but this might be years away — and it won’t involve Full Faith & Credit. It will probably be decided on other constitutional grounds like burdens/interference with interstate travel, or due process, or maybe equal protection. The most obvious scenario: when a same-sex married couple has children in NY and both spouses are recognized as parents, do those children suddenly have only one parent (or no parents?)when the couple moves to Alabama with their children (which doesn’t recognize same-sex marriages)? Can Alabama really refuse to allow Parent #2 to pick up the children at school or sign ‘parent consent’ forms? That result burdens the parents’ (and children’s) right to move/travel in interstate commerce, or deprives them of due process, and denies them equal protection. Or if a same-sex married couple owns a boat in NY as “tenants by the entirety” (this is a form of ownership limited to spouses, so it’s a bit different from “joint tenants” or “tenants in common”), does one of the spouses automatically lose title to the boat if it is docked for a few months near a summer cottage in Erie, PA (PA doesn’t recognize same-sex marriages) rather than at its permanent dock at the couple’s home near Buffalo, NY? That result seems to deprive one spouse of property without due process, or denies that spouse equal protection, or interferes/burdens interstate travel involving the boat and its owners. It’s these types of practical, day-to-day issues that are going to end up forcing states to recognize same-sex marriages from other states, not the Full Faith & Credit Clause.

  8. Icebloo says

    I HATE the Supreme Court ! It is SO f&cking corrupt ! It needs scrapping. The whole judicial system is a pile of s$it.

    They should NOT have the right to pick and choose what cases they hear – basically that’s giving them the power to make judgements on cases without ever hearing anything.

    I have NO faith the Supreme Court will ever hear a gay marriage case. They are corrupt right wingers with no balls so they will wait for the government to change the laws.

    They are a COMPLETE waste of taxpayer’s money !

  9. Derrick from Philly says


    it was a Supreme Court decision that made it possible for you to other men all over the entire United States and not go to jail for it.

  10. LiamMcG says

    Relax. The Supreme Court releases a new Orders List every Monday where it announces what cases it will or won’t take. Most petitions for cert filed between May and October are not reviewed by the Court until the new session opens in October. The fact that it’s not on the first Orders List (which is a very short list) sends no signal as to whether or not they’ll review the case.

  11. Liam says

    @Demarco — You’re welcome. Just to relieve anxiety a bit more, maybe, just because the scheduling procedure haven’t been clearly reported in a lot of the blogs on this: The current briefing on Prop 8 and the other cases is for the Supreme Court to decide WHETHER it will hear the case. Four Justices must vote to hear a case. Then, a new briefing schedule is set for the hearing on the merits. Given the time needed for that and the cases already scheduled for oral argument, I would not expect the Prop 8 case to be heard until Feb-March at the earliest, DOMA even later. Because of time needed for briefing, and because the Court has a habit of waiting to release opinions in high-profile cases until the end of the term, I wouldn’t expect a decision until May.

    I’d be really surprised if there weren’t four votes to review the case (Ginsburg, Breyer, Sotomayor, Kagan, maybe Kennedy) unless for some reason Kagan has a conflict of interest based on her work as Solicitor General or with DOJ, which I find unlikely.
    Kennedy will be the swing on the merits, but which way he went on granting review will be a mystery because who or how many voted each way on a cert petition is not made public except in the very rare case where a Justice decides to write a dissent on the cert decision.

  12. Troy says

    I haven’t heard any updates regarding the P8 case or DOMA, but I’m leery of the S5 challenge this year because that case can have an affect on voting patterns that could disenfranchise LGBT people and allies at the polls. Any thoughts?

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