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Supreme Court Takes No Action Today on Marriage Cases


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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  1. 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 5:11:20 PM

  2. A single justice can relist any case for any reason at all. So there's not really any basis for speculation at this point. And yes, in response to K and NN, the delay could theoretically spill over into the next term. There's no obligation for the Court to act on these cases by the end of this term. And practically speaking, if a case is going to be briefed and argued this term the Court needs to grant cert by the end of January 2013. Any cert grants after that point would be scheduled for argument starting October 2013.

    Regarding the Court's liberal "hold" policy and the likelihood that the Prop. 8 case will be held in abeyance until the DOMA Section 3 issue is resolved (from a Friday comment thread), see Justice Stevens: "the Court often 'holds' cases for reasons that have nothing to do with the merits of the cases being held, as when we wish not to 'tip our hand' in advance of an opinion's announcement." Straight v. Wainwright, 476 U.S. 1132 (1986).

    Posted by: alb | Dec 3, 2012 5:47:57 PM

  3. @ALB, so are you saying it is or isn't likely that the Prop 8 case will be held in abeyance?

    Posted by: me | Dec 3, 2012 7:08:42 PM

  4. @ME: one reason it might be held in abeyance for a while is if they think the way they would decide Proposition 8 or if they should even bother hearing it depends on how they decide some other cases.

    Doing in the cases in a particular order may reduce their workload overall.

    Posted by: Bill | Dec 4, 2012 2:01:54 AM

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