We all have been waiting for some time for the Supreme Court to give us news about which cases, if any, it plans to hear with respect to DOMA, Prop 8, and benefits discrimination in Arizona. We have been waiting a while, as we discussed last week. But, there are several legitimate reasons why we haven't heard anything just yet.
1. Many issues: Some cases take more than one conference to discuss, especially when the cases involve several wrinkles like Justice Kagan's possible recusal, the need to address the level of scrutiny on anti-gay discrimination, and the opportunity to take several cases (but which ones?) at the same time.
2. Strategy: Some justices might be trying to maneuver the Court toward taking one case, but not others, and before anyone votes, the justices want to work their colleagues to make sure they can win. This matters a lot. Many gay rights advocates believe that it would be better if the Court took the DOMA cases before the Prop 8 case and that otherwise, a conservative Supreme Court would have the opportunity to set us back decades. So, the justices might be trying to ensure the outcome they feel is best for their position.
3. Timing: The justices are not oblivious to the cases coming up through proper channels and there could be a justice or two interested in waiting for a case like the Nevada marriage case to get to One First Street.
Here is where the picture becomes more complicated. Many of us see it as a foregone conclusion that the Court will take some iteration of the DOMA cases. It has to: there is a split among the circuits on scrutiny, an act of Congress has been struck down by several federal appellate courts, and we cannot have DOMA be the law of the land in some areas and not others. But, there really is not a time frame on when the Court has to take the case. We wanted the justices to order a hearing on DOMA as soon as possible not only because every day that it exists is another day that harms same-sex couples, but also because we didn't want the picture clouded by controversies surrounding underlying marriage law.
Now, the Nevada case gives the Court a cleaner case that deals directly with the freedom to marry. I say "cleaner" because it doesn't have the unique procedural history of the Prop 8 case, which, if you recall, emerged as a challenge to an initiative-passed constitutional amendment that took away marriage rights previously granted. The Ninth Circuit's decision affirming that Prop 8 is unconstitutional made that unique history — the taking away of rights — an essential part of the reason why Prop 8 had to go.
The Nevada case has none of that special baggage. It is a simple ban on the freedom to marry. Though we cannot be certain, a Supreme Court decision in this case could implicate every other state ban on marriage freedom. Some might think that's a good thing: A potential victory in one swipe of the pen. Others worry that the nation — and the Court — are not ready. Even our liberal lions like Justice Ruth Bader Ginsburg, a women's rights pioneer, has spoken about Roe v. Wade, questioned its theoretical underpinnings, and warned of going too far too quickly and risking backlash.
What's more, pro marriage freedom forces lost in the Nevada case at the district court, which distinguishes it from the Prop 8 case and the several DOMA cases. This distinction is significant. Take a random sample of federal cases over the last decade and the vast majority of district court decisions are upheld on appeal. There are many institutional, political, and legitimate reasons for this, but there is no doubt that it is easier to uphold a judge's decision than reject it. I spoke about this over two years ago when Judge Vaughn Walker issued his detailed opinion declaring Prop 8 unconstitutional. The phenomenon works both ways.
And, so we have a marriage case from Nevada that may complicate all three of the above reasons: multiplicity of issues, strategy, and timing. The justices may be asking: Should we wait for Sevcik to go through the Ninth Circuit? Should we wait for a Ninth Circuit ruling before we hear any of these gay rights cases? Should we hear Sevcik or Hollingsworth (the Prop 8 case)? Do we hold off on both marriage cases or delay Prop 8 and take Sevcik? Or, the other way around? And, so on and so forth.
Don't get too worried, though. The Court is generally loathe to take cases out of their normal course, and the Nevada case is out of the normal course. The anti-gay forces have asked the Supreme Court to bypass the Ninth Circuit because they want to bypass a notoriously left-leaning appellate bench. That makes strategic sense from their perspective, but it makes it less likely (though by no means impossible) that the Supreme Court will bite. Plus, the Nevada case has nothing to do with the undeniable merit of taking the DOMA cases in some form. This country and this Court are ready to eviscerate DOMA and no delusional conservative judge is going to stop that.
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.