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Supreme Court Takes No Action Today on Marriage Cases

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The Supreme Court announced no action today on the DOMA and Prop 8 cases before it. Next word could happen this Friday.

Our legal editor Ari Ezra Waldman weighs in:

Of course it seems like a disappointment now, but the Supreme Court not taking any action on the DOMA or Prop 8 cases is not bad news at all. Sometimes, cases take more than one conference to discuss. And, in these cases, there may be a lot of strategy involved. For example, moderate justices who want to take the DOMA cases but not the Prop 8 case may be maneuvering to ensure that happens. If they think this Court is not ready to give them a victory, better to stop it at this stage. The late-Justice Brennan was a master at this kind of internal politicking. But, strategy aside, no order on grant or denial is most likely the result of needing more time to discuss lots of issues, from avoiding Justice Kagan's recusal to which DOMA case(s) to take, and so on.

Additional analysis here from Lambda Legal's Jon Davidson.

Writes AFER:

We may hear soon that our case has been redistributed for consideration at the Court’s next Conference, scheduled for this Friday, December 7. If this happens, we could get word from the Court that day, or the morning of Monday, December 10. It is important to remember that that the Supreme Court often takes more than one Conference to consider whether to grant review in certain cases.

Here at AFER, we remain optimistic that the Justices will soon act in our case, either agreeing to hear our arguments or allowing gay and lesbian couples to marry in California, but we must also be prepared to stay vigilant into the New Year for a final determination from the Court.

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Comments


  1. What exactly would they be discussing?

    How to strip a returning gay soldier of his/her rights to have equal access?

    Good luck!

    Posted by: AllBeefPatty | Dec 3, 2012 9:42:23 AM


  2. What do experts think this means? Are the delays good for us or bad? The suspense is killing me...

    Posted by: Graphicjack | Dec 3, 2012 9:42:55 AM


  3. I don't think anything will happen until next year. Let the gays wait, their rights are not that important

    Posted by: Chris in Irvine | Dec 3, 2012 9:58:15 AM


  4. How long can they postpone it if they want?Must they take on the cases before the summer?

    Posted by: nn | Dec 3, 2012 10:04:38 AM


  5. Same question as NN.

    Posted by: K | Dec 3, 2012 10:14:01 AM


  6. Ari is spot on with his analysis. We don't really know the dynamics among these judges, so the delay could be read as either positive or negative. If you read up on the history of the Supreme Court, these types of delay are not out of the ordinary.

    Posted by: Stefan | Dec 3, 2012 10:14:22 AM


  7. They may not be "out of the ordinary", but I think we can all agree that they're frustrating as hell.

    Posted by: K | Dec 3, 2012 10:16:38 AM


  8. they scurrred

    Posted by: David in NYC | Dec 3, 2012 10:16:47 AM


  9. To both ALLBEEFPATTY and GRAPHICJACK:

    "For example, moderate justices who want to take the DOMA cases but not the Prop 8 case may be maneuvering to ensure that happens. If they think this Court is not ready to give them a victory, better to stop it at this stage. The late-Justice Brennan was a master at this kind of internal politicking. But, strategy aside, no order on grant or denial is most likely the result of needing more time to discuss lots of issues, from avoiding Justice Kagan's recusal to which DOMA case(s) to take, and so on."

    Already mentioned in the post.

    Posted by: luminum | Dec 3, 2012 10:17:02 AM


  10. Isn't it true that Kagan's recusal in a DOMA case wouldn't make any difference? If Kagan was going to be the 5th vote to affirm DOMA as unconstitutional, her recusal would leave the vote at 4 - 4. A 4 - 4 vote would let the lower court's ruling of DOMA being unconstitutional stand, right?

    Posted by: Tim NC | Dec 3, 2012 10:35:32 AM


  11. My prediction is that the next press release will be that Scalia farted.

    Posted by: Frank | Dec 3, 2012 10:47:31 AM


  12. Typically if a Justice recuses herself and the lower court opinion is thus affirmed on a 4-4 vote, there are no Supreme Court opinions issued and the affirmance is not really binding precedent. It would be much better to affirm on a 5- 4 vote (with Kagan involved) because then there will likely be a written opinion that will serve as precedent.

    For two perspectives on how the Supreme Court might handle the equal protection argument, read the 1st Circuit (or 2nd Circuit) opinions in the DOMA case (an anti-DOMA analysis that we hope will prevail in the Supreme Court) or read the US District Court Nevada decision (issued last week, and which provides a conservative analysis of why refusing to recognize same-sex marriage is constitutional -- and, inferentially, why DOMA has a rational basis).

    Let's hope there are 5 votes for the 1st Circuit or 2nd Circuit analysis, and not the Nevada court analysis. Scalia, Thomas or Alito easily could have written the Nevada court analysis; but we need Roberts or Kennedy to disavow that analysis and agree with the 1st Circuit or 2nd Circuit.

    It's a crap-shoot.

    Posted by: MiddleoftheRoader | Dec 3, 2012 11:11:38 AM


  13. The Supreme Court wesite confirms that the case was redistributed for conference this Friday.

    Posted by: PeteP | Dec 3, 2012 11:22:46 AM


  14. Boooo....OLD FARTS RETIRE ALREADY AND STOP MESSIN WITH PEOPLES RIGHTS!

    Posted by: Johnny | Dec 3, 2012 11:41:51 AM


  15. I am tired of Justice Kagan opting out of all these cases which then hand victory to the right wingers ! What the hell is wrong with her ? Is she there to do the job she is being paid a FORTUNE to do or not ? If not then let's get rid of her and get someone else !

    Posted by: Icebloo | Dec 3, 2012 11:42:52 AM


  16. make the USA free and equal.

    Posted by: Jacques Rosasj | Dec 3, 2012 11:52:37 AM


  17. we have no idea what is going on, but our best hope is that they don't take the 9th Circuit case.

    Posted by: Javier | Dec 3, 2012 12:37:18 PM


  18. On the bright side, perhaps in the meantime evidence of a torrid sexual affair between Scalia (leather daddy) and Thomas (power bottom) will be uncovered, and they will be forced to recuse themselves.

    Posted by: Dance, Music, Sex, Romance | Dec 3, 2012 12:46:43 PM


  19. As in Loving vs Virginia, this is not about marriage, it's about "acceptance" of Gay citizens as equals, like the acceptance of Black citizens as equals. Marriage is not that complex that it needs this debate. Marriage is simply the messenger so to speak.

    Posted by: Sargon Bighorn | Dec 3, 2012 12:54:50 PM


  20. My Stomuch is churning been watching this all day, but now we wont know now until Friday even Monday, can someone please tell me that this is a positive sign. Im living in excile and i want to come home and bring my partner.

    Posted by: Anthony England | Dec 3, 2012 1:12:55 PM


  21. Should have gone with Diane Wood over Elena Kegan. Then we wouldn't have had this problem.

    Posted by: Gregoire | Dec 3, 2012 1:29:00 PM


  22. I'll bet dollars to donuts that Scalia and Thomas are scheming to find a way to stop gay marriage in CA. If the court simply votes not to take the case, gay marriage becomes a reality there, so they really don't want to do that.

    First, it would come on the heels of four major ballot victories for gay marriage. Second, it would demoralize the right wing even further. Third, it would dampen enthusiasm to stop gay marriage. Fourth, Scalia will have to concede that he couldn't convince two more justices to take the case, a personal failure for him.

    But if they take the case, then it might be affirmed or reversed. I'm sure Scalia and Thomas are betting that they can convince at least three other justices to reverse and want that case taken. Really, they have nothing to lose.

    If they take the case and affirm, the worst outcome for Scalia but the best for us, it would delay the decision to the summer, and it won't be so demoralizing to the right wingers and the haters. They can blame the activist judges and blah blah blah.

    IF the court doesn't take the prop 8 case, count on Scalia and Thomas to be looking very very sad in the next few days.

    Posted by: Randy | Dec 3, 2012 1:47:58 PM


  23. I read an analysis where they say the delay is actually a good sign of the court denying cert in Hollingsworth v Perry. It likely means the dissenting justices are writing a formal desent. The same was the case with the 9th Circuit denying the en banc hearing.

    Posted by: Stefan | Dec 3, 2012 1:53:37 PM


  24. Regarding AllBeefPatty's question, "What exactly would they be discussing": keep in mind that the hear about one percent of the cases they are given.

    There are several cases related to same-sex marriage, so they may want to pick the case(s) which are the most likely to result in a definitive ruling. Possibly the Prop 8 case is a contender for that, but they may also have decided not to make an announcement on any marriage case until they've decided which if any they will hear.

    I would guess that they will not hear the Proposition Eight case. While saying they won't hear a case is generally a safe bet as they hear so few of them, the Proposition Eight ruling from the lower federal courts was dependent on a chain of events unique to California and not likely to be seen elsewhere. That would argue against hearing the Proposition Eight case, A reason they might hear it is the possibility of ruling that, while, the passage of Proposition Eight was unconstitutional due to the process in California, banning same-sex marriages is not unconstitutional in general. That would be weird, but we are dealing with "legal minds" so who knows.

    Posted by: Bill | Dec 3, 2012 5:11:00 PM


  25. Regarding AllBeefPatty's question, "What exactly would they be discussing": keep in mind that the hear about one percent of the cases they are given.

    There are several cases related to same-sex marriage, so they may want to pick the case(s) which are the most likely to result in a definitive ruling. Possibly the Prop 8 case is a contender for that, but they may also have decided not to make an announcement on any marriage case until they've decided which if any they will hear.

    I would guess that they will not hear the Proposition Eight case. While saying they won't hear a case is generally a safe bet as they hear so few of them, the Proposition Eight ruling from the lower federal courts was dependent on a chain of events unique to California and not likely to be seen elsewhere. That would argue against hearing the Proposition Eight case, A reason they might hear it is the possibility of ruling that, while, the passage of Proposition Eight was unconstitutional due to the process in California, banning same-sex marriages is not unconstitutional in general. That would be weird, but we are dealing with "legal minds" so who knows.

    Posted by: Bill | Dec 3, 2012 5:11:01 PM


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