Supreme Court: No Action on Prop 8 or DOMA Cases Today


Those of us waiting to see what the Supreme Court will do regarding cases concerning DOMA and/or Proposition 8 will have to wait a bit longer. SCOTUS today took no action on any of those cases.

So there are a couple possible scenarios left. SDGLN:

1. The Supreme Court, on Oct. 8, will release the list of cases that it will not consider. If the Prop 8 and/or DOMA cases are placed on that list, then the lower court rulings will stand. Gay and lesbian couples in California would again be able to marry, as soon as the lower courts sign off on the case.

2. However, if the Prop 8 and/or DOMA cases are not on the list, that means the Supreme Court could be postponing any decision on those cases until after the presidential election, making Nov. 19 a highly watched date. There is also the distinct possibility that the justices will merge several high-profile gay-rights cases to review en masse.


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  1. JRoss says

    I’ve understood all along that if the Prop 8 case is denied review that the 9th Circuit ruling will stand: ie. good news.

    But if the Doma case(s) are ALSO denied does this then mean that the other Circuit Court decisions declaring DOMA unconstitutional will ALSO stand: ie. also good news?

    The first possible scenario outlined in the explanation above seems to indicate this. Would this then not also be good news, albeit it in a more limited way?

  2. Pete N SFO says

    I’ll be happiest is there’s no decision until after the election.

    We’ve waited this long, we can wait a little more.

  3. Glenn says

    I think the idea that the Supremes are “waiting until after the election” is far-fetched in the extreme. Even if they had granted last week, the cases wouldn’t be argued until well after the election.

    One thing that is probably going on is that the briefing on the various DOMA case petitions is not yet complete. They are probably waiting for that to be finished before making (or at least announcing) any decisions.

  4. jakke says

    They won’t deny DOMA review. Several circuits have struck it down, so they have to address the question.

  5. Esperando says

    @JROSS, If the Supreme Court were to deny cert in the DOMA cases, then the lower courts’ rulings declaring section 3 of DOMA to be unconstitutional would stand as binding precedent on the respective circuits that have issued that opinion. But there’s the rub, not only is a federal law implicated in those rulings, which in and of itself would normally demand Supreme Court review, allowing the lower courts’ decisions to stand would create conflicting precedents between circuits; DOMA would be unconstitutional and unenforceable in the circuits that have declared it so, but would remain good law in the circuits that have not. Allowing that conflict to remain would be an unconscionable abdication of the Supreme Court’s duty to ensure consistency between circuits with regard to federal laws.

  6. says

    Are we taking bets? I say they will postpone until AFTER the election. If Romney wins they can vote against gay marriage and Doma and be the royalty they believe themselves to be. If Obama wins they have to be much more careful as the next appointment will surely be a far leaning left selection.

  7. Glenn says

    Don’t forget, there’s only one Circuit Court DOMA decision, that’s the First Circuit in the Gill case. The other cases are at the district court level, whose rulings are not precedential. By definition, there is not yet a “circuit split” that is usually the most compelling reason for the Court to grant cert. The Court does not consider the fact that one or more circuits have ruled while others have yet to address the issue to create a “circuit split.”

    If the Court grants cert on the DOMA cases, it will be because they think the issues are particularly important (and the fact that the SG has urged them to do so adds weight to that argument).

  8. JRoss says

    Thanks, Esperando (and aren’t we all!). Yes I do understand it as you’ve explained and that was why I said “albeit in a limited way.”

    As to the confusion caused in states under different Circuit Courts, the “unconscionable abdication” of SCOTUS isn’t something to necessarily count on as a reason for action I don’t believe. I’m trying to remain patient and optimistic, but this emotional roller coaster is wearing.

    Again thanks.

  9. Bill says

    Esperando commented regarding DOMA, “Allowing that conflict to remain would be an unconscionable abdication of the Supreme Court’s duty to ensure consistency between circuits with regard to federal laws.”

    By contrast, the details of the lower courts decision regarding Proposition Eight in California are dependent on a chain of events that are unlikely to occur anywhere else. That would suggest that the Supreme Court may decline to review the Proposition Eight decision.

    What happened in California is that there was a court case challenging the previous Proposition 22. At the same time, there was an initiative, Proposition Eight, that took the wording of Proposition 22 and moved it to the California Constitution. Signatures for Proposition Eight were being gathered at the same time that the case involving Proposition 22 was moving through the court system.

    Before the vote on Proposition Eight happened (and before the election campaign for Proposition Eight started in earnest), the California Supreme Court ruled that Proposition 22 was unconstitutional, and same-sex marriages became legal in California. The result was that Proposition Eight’s sole effect was to take away an existing right. When challenged in Federal Court that, plus the obvious animus exhibited in the campaign propaganda, resulted in Propsition Eight being declared unconstitutional by a federal court.

    The catch – if Proposition Eight had passed before the California Supreme Court ruled on Proposition 22, the court would not have been able to throw out Proposition 22 based on California law due to Proposition Eight changing the state constitution.

    That timing dependency makes the case for all practical purposes unique to California. Given that the U.S. Supreme Court hears only a small fraction of the cases presented to it, coupled with the case being so specific to California, suggests that the Supreme Court will decide not to hear the Proposition Eight case. Of course,
    the justices can do whatever they wish – at this
    point, all we can do is to note which outcome is
    more likely.

  10. kaylor says

    I just wanna know what are the chances that gay couples will receuve the same federal benefits as hetrosexual couples and how long will it take? My partner and I have to move out of the USA as we are bi-national couple, but we really want to return back and start a family soon.

  11. says

    I suspect that the Conservative members of the court are resisting. I think they may be scared to take the DOMA cases on because they will HAVE to rule DOMA unconstitutional. But they don’t WANT to rule it unconstitutional.