What Is Happening at the Supreme Court Tomorrow?

Tomorrow's conference is a private meeting in which the nine justices get together and decide which cases to hear. They do not really argue about the substance of the case. To the extent that legal issues have to be discussed, they are raised to determine if the Court can or should hear the case. So, tomorrow's discussion is not about what the Court thinks about DOMA's or Prop 8's constitutionality; rather, it is about whether the justices should think about DOMA's and Prop 8's constitutionality (after briefing and oral argument). 

To get a hearing, you need a minority of 4 justices, though you more often get more. Judges who disagree vehemently about the end result, can still agree to want to hear the case. But, getting a hearing at the Supreme Court is rare. Four votes is hard to come by and according to the Chief Justice's year-end report for 2010, the Court received 8,159 petitions for writ of certiorari (formal request for review) for the 2009-2010 Term. Of these, only 87, or 1.005%, were accepted on appeal.

In some form, DOMA will get a hearing. It has to. Two federal appellate courts have already struck down an Act of Congress. The Supreme Court cannot let DOMA be the law in one part of the country and have it not be the law from Maine to Pennsylvania. But, there are a few options for what the grant will look like. (For now, let's exclude the option that the Court takes none of the cases.).

First, the DOMA cases.

1. The Court combines all the DOMA cases into one. The Supreme Court does this when two or several cases come to it at the same time and ask the same issues. The Court's recent decision declaring President Obama's Affordable Care Act constitutional did just that. 

This has a theoretical efficiency benefit, but is not clear to me that it is a real efficiency benefit. If the Court takes all of the DOMA cases and puts them into one, it is likely that Justice Kagan would have to recuse herself because she was President Obama's Solicitor General when some of those cases were going through the pipeline. Despite the intense politics surrounding recusals, the generally collegial Court does not want that to happen if it can avoid it. Plus, combining them does not add any efficiency: the Court can take one and simply hold the others in abeyance until there is a result. It would take the same amount of time. Finally, these cases raises slightly different issues. Most notably, the Second Circuit case (Windsor) is more likely to nudge the Court to say something about levels of scrutiny than the First Circuit case (Gill/Massachusetts). 

So, the Court has another option:

2. Take one DOMA case and hold all others pending the result. This is a likely scenario because it would avoid Justice Kagan's recusal. It also could be a strategically important decision: If the Court takes the First Circuit's Gill or Massachusetts, it will deal with a "rational basis with bite" or "rational basis plus" level of scrutiny and have no occasion to say anything about heightened scrutiny. This would be a safe choice if some of the justices don't want to fracture a majority over the issue. 

But, then again, the Second Circuit's case (Windsor) would not necessarily require the Court to make a definitive statement about the level of scrutiny even if the Obama Administration and the ACLU are united on that front. The Windsor Court said heightened scrutiny was applicable regardless of the complicated mess other courts had been using. (Thanks to Lambda Legal's Jon Davidson for catching a mistake in an earlier version.). But, while this circuit split on scrutiny certainly encourages the Court to make a clear statement of law for the lower courts to use, we know that the Court — even pro-heightened scrutiny liberal justices — could elect to muddle along if they could not be sure of the votes.

In other words, any DOMA case should allow the Court the opportunity to, at a minimum, clarify what it thinks the level of scrutiny should be for antigay discrimination. Therefore, the choice of which may hinge on Justice Kagan's recusal policy and which case is the most appropriate venue for a strategic compromise.

Next, allow me to complicate the picture by adding the American Foundation for Equal Rights and its Prop 8 case, now titled, Hollingsworth v. Perry. Combining this case with the two options above, we have these three alternatives:

1. Take either all or one of the DOMA cases and take the Prop 8 case. This would be indicative of an ambitious Court that feels it — and the public — are ready to make a decision on marriage. There could be a lot of strategy that goes into this: if a conservative justice feels that his best chance to uphold Prop 8 is to take it now, he might want to do, or he might want to take it and lose now just to encourage a public backlash, assuming the public isn't ready for marriage freedom. A more liberal justices might want a clean, favorable DOMA ruling without a complicating factor. Plus, not taking the Prop 8 case lets the Ninth Circuit's decision stand, which would bring marriage back to California; taking the case would delay marriage.

I don't see this as a likely option for legal reasons. The Court has no substantive reason to take the Prop 8 case: it is specific to one state and could not affect any other pending state marriage law given the unique chronology of marriage in California. Therefore, I can't imagine any of the more moderate justices seeing the Prop 8 case as a good venue for a national decision in favor of the freedom to marry.

2. Take one DOMA case and hold pending the other DOMA cases the Prop 8 case. Or, much less likely, take all the DOMA cases and hold pending the Prop 8 case. This option implies that the Court thinks that its substantive holding on DOMA will affect the underlying decision on Hollingsworth. I have spoken before about how any decision in one gay rights case affects the substantive outcome and interpretation of the next gay rights case, so if the Court does this, it might signal its real willingness to tackle the level of scrutiny question and have it applied to the Prop 8 case and the other DOMA cases in a systematized way.

It's a clever option, but I just don't see it happening. There would be no need to hold pending the Prop 8 case in order to deal with the level of scrutiny in Hollingsworth because Judge Walker's district court decision declaring Prop 8 unconstitutional offers the Court a heightened scrutiny model already. The Court would not need to send Prop 8 back down in order to make the level of scrutiny a part of the case for adequate review. Plus, as I noted above, there is still no substantive reason to even think Hollingsworth merits review at any stage as long as the Ninth Circuit's decision about taking away rights is the analytical framework.

3. Take either all or one of the DOMA cases and deny the Prop 8 case. This is the most likely outcome. As a matter of law, the DOMA cases have to be reviewed and both liberals and conservatives can unite to declare it unconstitutional. Moderate and liberal justices are also likely to think that the country is not quite ready for a substantive decision on a marriage ban, even if it does only focus on California. 

The Court following option 3 is probably the best possible outcome for gay rights. The DOMA cases have the potential to be groundbreaking on substantive issues like the dignity of gay couples, equal protection, and levels of scrutiny. Even if the Court continues its muddling standard of something-sorta-like-but-maybe-a-bit-more-than-rational-basis, we will still be having scrutiny arguments, but the Court would still strike down DOMA's odious discrimination. That is itself a victory. And, the final opinion may offer future gay rights attorneys the necessary language for the next win, whether in marriage, employment discrimination, immigration, or surrogacy and adoption.

A notable result of the a favorable decision will be its expressive effect. Once we have a positive decision about the dignity of gay couples, we can include in our political mobilization efforts the lofty rhetoric from a body no less august and honored than the Supreme Court. Homages to marriage, the greatness of gay parents, and the final debunking of quack science will be good for law and politics, especially as we take the next steps to win the freedom to marry in 2013 and 2014 in places like Rhode Island, Delaware, Oregon, and Illinois.

The conference happens tomorrow and though we could know as early as tomorrow afternoon (sometimes, the Court notifies us of its grants immediately), it is more likely that the Court releases its grants on Monday, starting at 9:30 AM. After that, the briefing clock begins. The normal procedure — 45 days for the party seeking reversal of the lower court decision, 30 days for the respondent to respond, and 30 days for the response to the response — may be altered, but it will generally look something like that. This puts briefing done by the middle of March. A hearing will be scheduled for shortly thereafter. And, we should expect a decision by the very end of the term. 

But, don't forget, if the Court denies a hearing on the Prop 8 case, marriages in California can begin almost immediately. 


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.




  1. alb says

    The Court has a liberal hold policy. Option 2 is therefore more likely than option 3. Read the Brief in Opposition in the Prop 8 case. It essentially concedes that the issues are intertwined with the issues in the DOMA cases.

  2. abel says

    Thanks so much, Mr. Waldman, for explaining this situation so clearly. It really is complicated. I wish I felt optimistic, but where the SC is concerned, I rarely do. But I really appreciate the elucidation!

  3. KML says

    How can you be so confident the court would strike down DOMA, especially with the possibility of a Kagan recusal? I’m not an attorney, but this seems like a far cry from a certain outcome. I wish I shared your optimism.

  4. Robert says

    Thanks, Ari, for a clear summary, as usual.
    The SCOTUS is no doubt aware that there are more DOMA challenges in the wings. For instance, the rights of gay service members who have married or the rights of a long-married hetero couple when one of them decides to change sex but not seek divorce.
    And the SCOTUS simply cannot be immune to the growing trend of marriage equality acceptance and the recent gay rights victories in 4 state elections.
    I, for one, am pretty optimistic.

  5. Bob says

    Note that in the Ninth Circuit decision, the dissenting judge was THE MORMON WHO LIVES IN IDAHO, where his family would be shunned if he had voted for fairness.

  6. KT says

    I am not getting my hopes up. Considering we originally thought the Supreme Court would discuss taking on these cases in September, then in mid-November, now in early December, I am not going to get all exicited now. I honestly think the Court is going to take a DOMA case but hold the the Prop 8 case. We have been getting our hopes up for so long and have become a little too confident after the wins at the ballot box. Whenever we take two steps forward, we always seem to be shoved back at least one soon after.

  7. Icebloo says

    Sorry guys but I still don’t trust the Supreme Court. It is too corrupt and is always controlled by the right wing. We need to have some alternative plans in place because we can no longer rely on the Supreme Court to do the right thing. They are puppets of the Republican Party.

  8. Anthony says

    If Doma passes when could I come back to the US with my english Partner, where we had a civil Partnership. Would this count in the US. I want to come home and be with my family as well.

  9. says

    @anthony: thx for your question. you mean if DOMA is overturned. after DOMA is overturned, the DHS will rewrite its regulations to allow the american citizen of a same-sex binational couple to sponsor his/her foreign national spouse for a visa. you have to come back and get married in the US to be able to sponsor him. once DOMA is gone and once you get married here, you can sponsor him.

  10. Zlick says

    I find I AM getting my hopes up. I think DOMA is doomed. And I think they will decline to hear the Prop 8 Case. That will make marriages here in California legal, maybe by Christmas. And they will be full-fledged American marriages by next summer.

    Wouldn’t that put roughly 40% of the nation’s population in states with full marriage equality? If so, I can’t see the apartheid regime holding up too long after that!

  11. MiddleoftheRoader says

    The commenters who are concerned about whether the Supreme Court will throw out DOMA have very legitimate concerns. We need 5 votes — let’s get realistic and forget about Scalia, Alito & Thomas. Can we pick up Kennedy or Roberts? Lots of people think ‘yes’, for various reasons (intellect, legacy/reputation, past decisions, etc).

    However, we need to keep in mind that both Kennedy & Roberts are probably not as ‘liberal’ or ‘libertarian’ as ex-Justice Sandra Day O’Connor; indeed, both Kennedy & Roberts admire O’Connor for many reasons. And so I hope that Ari and other prognosticators will keep in mind what O’Connor said in her concurrence in Lawrence v Texas: “That this [Texas] law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage.”

    So there you have it, O’Connor mentioning that under “rational basis review”, it is a “legitimate state interest” in “preserving the TRADITIONAL institution of marriage.”

    I am not saying that Kennedy & Roberts will blindly follow O’Connor’s statement (indeed, since leaving the Court, O’Connor seems to have distanced herself from her own statement). But Kennedy & Roberts — IF the “rational basis” test is used — will surely take comfort in O’Connor’s statement if they decide to find that preserving traditional marriage is a legitimate interest and that is provides a “rational basis” for DOMA.

    I hope that I am wrong; that they distance themselves from O’Connor’s statement; or that they (less likely) adopt some heightened standard of review. But right now, NO ONE can say with anything more than 50-50 that the Supreme Court is going to strike down DOMA.

  12. Anthony says

    Just a little information; I came to England with my English partner, we have been together for 13 years, when we arrived in England, we went to the register office, signed up for our civil partnership, 14 days later we had our partnership, My visa for 2 year allowed me to work, just applied for my indefinite leave to remain visa and has been granted. I get my British citizenship Next year. I just wish the American system was as easy as it is here. But i still want to come Home.

  13. Stefan says

    “The Court has a liberal hold policy. Option 2 is therefore more likely than option 3. Read the Brief in Opposition in the Prop 8 case. It essentially concedes that the issues are intertwined with the issues in the DOMA cases.”

    Care to cite some instances of this? I can’t think of any other than Brown v Board of Education.

    I’ve read the Brief in Opposition and I’ve seen no such indications.

  14. Bingo says

    AZ: SCOTUS is not being asked to *decide* the matter. The only thing actually at stake in that case is a preliminary injunction. SCOTUS could easily decide not to hear it and then the lower courts would delay action in the case pending resolution of other cases.

    If the DOMA cases are combined “Kagan would have to recuse herself.” Quite the opposite. As long as she had nothing to do with one of them, she participates. Ari’s is the only statement I’ve seen that has it the other way.

    The Court will deal with scrutiny no matter which DOMA case(s) it selects. Period. Imagining that what happened below will in any way open the issue or foreclose it is foolishness. Nan Hunter has been underlining this for months. Why pretend that Windsor has any advantage in this regard? Esp. when Windsor has factual problems.

    Re: Kagan recusal. If the Court divides 4-4 on a DOMA case, what happens? The lower court decision(s) stand(s). Now that could get interesting. (But IMHO she won’t recuse herself.)

    Re hearing a bunch of DOMA cases. Does SCOTUS want to have a megacase with lawyers from BLAG, DOJ, GLAD, LambdaLegal (Golinski), and ACLU (Windsor)? At some point they might get practical.

    Hmmm. I don’t think your answer to Anthony is quite right. Anthony and his partner will need to get married somewhere, not necessarily in the US. Anthony: only marriage counts, not any other sort of legal relationship.

  15. says

    So the Court will decide if we are equal or second class citizens……that about sums it up we, Ari.

    @ ANTHONY : and the recognition of your English situation is a matter for USA Private International law; the USA has to recognise your legitimate rights on a reciprocal basis ; otherwise all other countries can and will refuse to recognise USA courts decisions, say in child abduction cases or contracts or probate decisions.

    One country must recognise the decisions of others…….unless contrary to public policy,,…which same sex marriage clearly is not.

  16. Robert says

    Thank you Ari for this excellent summation.

    I think one of the reasons for optimism is that these conservative justices focus so much on states’ rights. States approving same-sex marriage on their own–vs. being told by the Federal government they have to–fits right into their vision of states’ rights, even if the justice disapproves of marriage equality. And we just had 3 states approve it via the ballot box (conservatives are always saying it should approved by voters blah blah blah). DOMA is a violation of theses states’ rights. So although I agree Thomas, Alito and (probably) Scalia aren’t likely to overturn DOMA, there are reasons to think Roberts and Kennedy might. Especially Justice Kennedy, who wrote the majority opinion in Lawrence v Texas.

    Does this sound plausible to you, Ari?


  17. Kyle says

    To the guys worried that SCOTUS will uphold DOMA after all: The narrowest argument is not about whether denying same-sex couples marriage licenses is constitutional. DOMA does not preserve exclusively heterosexual marriage since states have already violated that exclusion. Instead, DOMA denies rights to certain already-married couples without rational basis. It’s an open-and-shut case. Though there probably won’t be a unanimous decision, an overturn is inevitable.

  18. says

    @ ANTHONY :
    The answer I think is “yes” if you’re in a straight marriage; “No” if you’re in a same sex marriage.

    But does the UK afford more respect to
    USA marriages than the USA does to UK marriages ?…..in terms of recognition…. That is the conundrum .

    That’s what DOMA means to those of us “foreigners” with US partners.

    The USA has a Federal Law not recognising the validity of Foreign same sex marriages…..even though the UK recognizes a same sex marriage from Massachusetts.

    This is the absolutely outrageous arrogance of US lawmakers.

  19. says

    For many of us the issue is not getting married in the USA, it is the recognition of a foreign marriage validly entered into in a foreign country.
    We want exactly the same rights as straights.
    We don’t want to have to get married in the USA if we are already married validly abroad.
    Why should we ?
    straights don’t have to marry twice !!!!

  20. Geoff says

    People like Antonin Scalia – living several hundred years ago as they do – scare the bejeebus out of me. Until folk of his age die off, there is a legitimate threat. That being said, the complexion of the court may have changed just enough, recently. It’s no slam dunk, though.

  21. Matt says

    I hear about how SCOTUS won’t take Prop 8 because of it’s narrow ruling, as if that is binding. The only binding ruling is from SCOTUS, and they could very easily take the previous ruling and completely gut it, because quite honestly, that decision is just ripe for the picking.

    It’s all so hard to say what will happen. Optimally, if the court had any sense amongst it’s members, then we’d be looking at a 7-2 decision for DOMA, and either leave Prop 8 alone, or take it and with another 7-2 decision, both favorable. It is incredibly difficult to say. With how things have gone, maybe it would be ok to leave marriage to the states for a while, then let SCOTUS come in and take care of the rest in a couple years, after many states have allowed gay marriage. Or perhaps this is our only chance for a SCOTUS case for gay marriage.

  22. MiddleoftheRoader says

    The question is not whether marriage should be left to the states. Marriage is left to the states. The question is whether there is a ‘rational basis’ for Congress to have decided that federal statutes (tax, benefits, etc) do not have to recognize a relationship as a ‘marriage’ for federal law purposes even if a state says it’s a ‘marriage’ for state law purposes.

    The ‘rational basis’ test for equal protection violations requires the Court to ask if there is ANY CONCEIVABLE VALID GROUND for the feds to say ‘No, we won’t recognize this as a marriage’? Although the courts that ruled against DOMA have said there is NO CONCEIVABLY VALID GROUND, please don’t assume that 5 members of the Supreme Court will reach the same conclusion. I notice that not a single person who posted anything here is addressing Justice Sandra Day O’Connor’s opinion in Lawrence v Texas where she said that “preserving the TRADITIONAL institution of marriage” is a “legitimate state interest” . That doesn’t automatically mean that DOMA is constitutional, but it’s a statement that Roberts and/or Kennedy would have to ignore or ‘explain away’ in the context of DOMA.

    Many of the posts that are made here present very good arguments for finding DOMA unconstitutional. But none of us can predict whether 5 members of the Supreme Court will say that the federal government’s refusal to recognize state-authorized same sex marriages has NO CONCEIVABLE VALID REASON behind it. We are all guessing, even if that is educated guessing.

  23. Jorge says

    The moniker: Don’t trust everything you read on the Internet comes to mind…

    To clarify, it is NOT correct that the Supreme Court granted and consolidated all of the Obamacare act cases that were pending before it. It took the 3 Eleventh circuit cases and decided those, but held the cases from the 4th and 6th Circuits while it ruled on the 11th Circuit cases.

    Thus, it could be that they would take the Second Circuit cases and hold the 1st Circuit ones, particularly since Justice Kagan will likely recuse herself from the 1st Circuit ones as she worked on that case while in the SG’s office.

    I also disagree that 3 is the likely outcome. Although analytically different, the implications of the DOMA cases for the Prop 8 cases are clear and as other commenters pointed out, the briefs themselves concede the issues are intertwined.

    I would think the more likely outcome is to grant one or two cases covering DOMA (could even be one from each circuit as they present different arguments – the 10th amendment issue) and hold the rest of the petitions while those cases are decided.

    But we shall see.

  24. says

    @jorge: nothing you said contradicts anything in my article. i didnt say sebelius combined ALL cases, but it was an example of the court combining cases. you havent explained why you think they would hold prop 8 in abeyance. that makes no sense from a legal standpoint, but Im open to new theories that i havent considered.

  25. devon charles says

    I’m a federal retiree and in a same sex marriage.
    I’ve been in contact with the Office of Personnel Management(OPM), and Federal Employees Health Benefits(FEHB).
    Both have informed me that even if section 3 of DOMA is ruled unconstitutional, legislation must still be passed by congress and signed by the president to provide spousal benefits to couples in same sex marriages.
    I have seen this reported anywhere.

  26. devon charles says

    Thanks for the info, Ari.
    I predict that whatever rule-making needs to be done after the Supreme Court decision will be made needlessly more difficult by angry anti-equality republicans.

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