Supreme Court to Review Proposition 8 and Windsor DOMA Case


The Supreme Court announced this afternoon that it will hear the federal challenge to Proposition 8 and the Edie Windsor DOMA case, marking the first time the high court has heard a marriage equality case.

UPDATE: CLICK HERE for our legal editor Ari Ezra Waldman's analysis of the ORDER.

Here is the SCOTUS order (PDF).

SCOTUSblog writes:

Prop. 8 is granted on the petition question -- whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

In Windsor, the government petition (12-307) is the one granted. In addition to the petition question -- whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

As far as timing goes, arguments in the cases should happen around March 25-27, with a decision coming in late June.

Adds SCOTUSblog:

The Court's two orders on the marriage cases do not include a word about two other issues that lurk in the cases: is Baker v. Nelson still controlling and thus requires dismissal of marriage pleas by gays and lesbians, and what is the constitutional standard of review on gay rights issues. But both almost certainly will be argued in the briefing and at oral argument....It is obvious now why the Court took as much time as it did: the selection process must have been rather challenging, and the compositon of the final orders equally so. The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues.

Lambda Legal Director Jon Davidson's take:

"Perry granted on merits and standing of Prop 8 proponents. So no answers (or CA marriages) likely until June, and Court may ultimately duck merits of Prop 8 and allow order striking it down to stand by finding that Prop 8 proponents had no right to seek Supreme Court (and maybe not 9th Circuit) review."

NCLR Executive Director Kate Kendell, Esq. writes:

“Both the federal DOMA and California’s Proposition 8 serve only one purpose: to harm and stigmatize same-sex couples and their children. Without a doubt, Ted Olson, David Boies, and our colleagues at the ACLU will make the strongest possible case for equality before the Court. We are confident the Supreme Court will strike down DOMA once and for all next year, and, after four long years, will finally erase the stain of Proposition 8 and restore marriage equality to California couples.The day is now clearly in sight when the federal government, the State of California, and every state will recognize that same-sex couples and their children are entitled to the same respect and recognition as every other family.”

Writes the ACLU:

Windsor is represented by attorneys from Paul, Weiss, Rifkind, Wharton & Garrison LLP; the American Civil Liberties Union; the New York Civil Liberties Union and the Stanford Law School Supreme Court Litigation Clinic. While New York and eight other states now give same-sex couples the freedom to marry, DOMA requires otherwise legally married same-sex couples like Edie and Thea to be treated by the federal government as if they had never married,” said New York Civil Liberties Union executive director, Donna Lieberman. “It is time for the Supreme Court to strike down this unconstitutional statute once and for all.”

Protect Marriage writes:

The day we've been waiting for is finally here . . . Today we scored a MAJOR victory for traditional marriage in the Supreme Court of the United States!!  Just moments ago, the Supreme Court GRANTED our petition seeking the Court’s review of the Ninth Circuit’s erroneous decision striking down California's Proposition 8. Thankfully, now we finally have a fighting chance at a fair hearing to defend the votes of over 7 million Californians who approved Prop 8 to restore traditional marriage. This is a great relief, after a long and difficult journey through the lower courts where the deck was stacked against us from the start.

GLAD writes:

DOMA creates a gay-only exception to federal recognition of state-licensed marriages, and we believe that the federal government should stop discriminating against same-sex couples legally married by their states. We know from working with legally married same-sex couples since 2004 in Massachusetts that DOMA undermines their security in every aspect of life and death. GLAD has been leading the fight for marriage equality for two decades, including the historic marriage equality breakthroughs in Massachusetts and Connecticut. That the issue will soon be heard by the Supreme Court is a vindication of our work to achieve equal protection under the law for same-sex couples. This day has been long in the making, and we are committed to the success of this case.

Freedom to Marry's reaction:

By agreeing to hear a case against the so-called Defense of Marriage Act, the Court can now move swiftly to affirm what 10 federal rulings have already said: DOMA’s ‘gay exception’ to how the federal government treats married couples violates the Constitution and must fall. When it comes to the whole federal safety net that accompanies marriage – access to Social Security survivorship, health coverage, family leave, fair tax treatment, family immigration, and over 1000 other protections and responsibilities -- couples who are legally married in the states should be treated by the federal government as what they are: married." “Additionally, gay and lesbian couples in California – and indeed, all over the country – now look to the Supreme Court to affirm that the Constitution does not permit states to strip something as important as the freedom to marry away from one group of Americans.

NOM reacts:

"We believe that it is significant that the Supreme Court has taken the Prop 8 case," said John Eastman, NOM's chairman and former Dean (and current professor) at Chapman University School of Law. "We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect."

"Had the Supreme Court agreed with the lower courts' decisions invalidating Proposition 8, it could simply have declined to grant certiorari in the case," Eastman said. "It's a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco at both the trial court and appellate levels. It's worth noting that Judge Reinhart is the most overruled judge in America. I think this case will add to his record."

GLAAD reacts:

“Today is a historic moment for our nation, equality and countless gay and lesbian couples, who simply want an opportunity to marry the person they love,” said GLAAD President Herndon Graddick. “Our momentum is great and our resolve is strong, with the Supreme Court now poised to affirm our Constitution’s core principals of liberty, dignity and equality for all.”


"Today's decision by the Supreme Court to review Proposition 8 and hear a challenge to DOMA is another step forward for California couples to marry, with the hope that the federal government will also recognize these marriages," said Executive Director R. Clarke Cooper. "In recent years, many conservative judges have repudiated DOMA, and five of the eight justices who have overturned this anti-federalist and discriminatory statute were appointed by Republicans. Add conservative champions like for former Solicitor General, Ted Olson, and it becomes clear that true conservatism demands respect for the freedom to marry."

Here's Ari's earlier analysis of the ruling in the Windsor case if you're interested.

Here's the New York Times report on the consideration.

Developing (refresh for updates)...

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  1. WHAT ? ! They finally got off their cowardly. lazy asses and made a decision ?

    Well all you religious people out there had better pray because the Supreme Court is just another branch of the Republican Party. They hate us just as much as everyone else.

    Posted by: Icebloo | Dec 7, 2012 3:20:18 PM

  2. Is there any silver-lining to be found in the fact that they will be reviewing prop 8?

    Posted by: Shawn | Dec 7, 2012 3:21:03 PM

  3. so it seems another 6-8 months of waiting.

    Good golly things move so slowly. I want a job where someone comes to me, asks me to do something and I get to say, "I'll have that to you between June and August of next year."

    Posted by: Ken | Dec 7, 2012 3:21:18 PM

  4. Very scary. I don't feel good about the Prop 8 case. The Supreme Court rarely upholds the Ninth Curcuit, as NBC's Pete Williams is saying now.

    Posted by: Jake | Dec 7, 2012 3:26:20 PM

  5. I'm afraid that there will not be positive outcomes for prop 8. Had hoped that Prop 8 would end today

    Posted by: nn | Dec 7, 2012 3:26:23 PM

  6. ok so can someone please explaine to me in laymans terms what the court has decided please. I wanna come out of excile.

    Posted by: Anthony England | Dec 7, 2012 3:27:00 PM

  7. Well, this has basically taught me that the gay orgs and blogs basically know nothing when it comes to SCOTUS. Nobody thought the Court would take on Prop 8. They said it was a possibility but not likely. They thought the court would just give in and let LGBT Californians marry. Nope. Scalia and Thomas won't let that happen without a fight. And now we have to wait 7 months. And there is a very good chance the Court will not rule in our favor. Honestly this sucks. I am very nervous.

    Posted by: KP | Dec 7, 2012 3:27:59 PM

  8. Pete Williams says the conservatives must think they have votes on Prop 8 case or they would have voted not to grant cert. he seems to think it portends they will uphold Prop 8.

    Posted by: Jake | Dec 7, 2012 3:28:00 PM

  9. @Icebloo: I understand the frustration and nervousness about these cases, but let's not overstate things. An arguably even more conservative SCOTUS gave us Romer v. Evans as well as Lawrence v. Texas. The current make-up also gave us Kelo v. City of New London along with National Federation of Independent Business v. Sebelius, both of which Republicans objected to quite strongly, rightly so in the first case at least.

    We'll see what happens.

    Posted by: JohnAGJ | Dec 7, 2012 3:29:50 PM

  10. Totally foolish miscalculation by gay rights groups who prematurely pushed this on a hostile Supreme Court. Ted Olsen is not our friend.

    Posted by: Jake | Dec 7, 2012 3:30:57 PM

  11. @Shawn, the silver lining (so to speak) is that SCOTUS is also going to rule on standing in the PROP 8 case.

    Posted by: Howard | Dec 7, 2012 3:32:30 PM

  12. They did not take the Gill case.

    Posted by: Jake | Dec 7, 2012 3:33:50 PM

  13. What happens for us next when the Republican-controlled Supreme Court rules against us on all of these cases ?

    Posted by: Icebloo | Dec 7, 2012 3:37:07 PM

  14. Too many Catholics on the court...not to sound like a religious bigot, but they will not vote to provide equal rights for gays...Hope that Justice Kennedy can shake off all that early brainwashing and be on the right side of history.

    Posted by: Quest | Dec 7, 2012 3:37:18 PM

  15. Just push for another referendum in California- (prop 9?)to allow same sex marriage? It probably will pass.

    Posted by: simon | Dec 7, 2012 3:37:36 PM

  16. WTF?!!!!! LATE JUNE?!!!!!!

    Posted by: AJ | Dec 7, 2012 3:39:00 PM

  17. Do we have any hope at all just a little Im also very nervous.

    Posted by: Anthony England | Dec 7, 2012 3:39:19 PM

  18. FYI, it only requires 4 justices to grant cert. This does not mean anything at all, but I am hoping that the two swing votes (Kennedy and Roberts) go our way.

    Posted by: Jakey | Dec 7, 2012 3:41:28 PM

  19. @Simon: Why don't the democrats just pass a new law in the legislature? They now have a super majority in California.

    Posted by: Quest | Dec 7, 2012 3:43:34 PM

  20. Let the games begin.

    I'm not necessarily happy based on what I've been reading and what I've heard on TV post-decision from SCOTUS, but at the same time, it seems that the legal experts have been wrong a lot regarding these Prop 8/DOMA cases so we'll have to see what happens. There is no point in not being hopeful yet realistic. So that's what I'm going to do. I'm confident in those who will be arguing for us in court. But you would assume that they wouldn't have taken this if they didn't want to make *the* decision, one way or another.

    Posted by: Francis | Dec 7, 2012 3:44:02 PM

  21. The reaction from the orgs and blogs should be interesting - AFER seems pleased while Michelangelo Signorile and Joe Jervis are nervous. Honestly, I don't know what to think.

    I imagine between now and June there will be a lot of people wondering if we shouldn't have just put a Prop 8 repeal on the ballot. It's been over four years at this point - and what happens if the court rules against us? I fear a loss at the court will completely destroy the momentum we have built over the past few years...

    Posted by: Lee | Dec 7, 2012 3:44:48 PM

  22. Calm down everyone. I think Chief Justice Roberts might surprise everyone and rule in our favor on this. He clearly has a long view of history and of his legacy. Just a feeling I have.

    If the Supreme Court doesn't strike down Prop 8, it can always be repealed by referendum next election. With the direction of polling, we'd clearly win a second round at the ballot box.

    As for DOMA, there's no WAY it gets upheld. I could see it being destroyed by a 7-2 decision... or even a unanimous one.

    Posted by: George | Dec 7, 2012 3:46:00 PM

  23. If ANY of them rule against us they should automatically lose their jobs. The Constitution CLEARLY states equal protection. There is no other way of reading it. End of debate.

    Posted by: Icebloo | Dec 7, 2012 3:49:43 PM

  24. i sincerely hope the "swing vote" judges will spend the time to rationally and soberly think about how history will remember them.

    do they want to be forever listed as a shameful opponent to human equality in America, for all its touted "Freedom Liberty and Justice", or will they favour the short-term thrill of being a darling to the country's remaining Bigotty Nitwits?

    nobody but the few remaining Klansmen looks back at reverence on the anti-Integrationists.

    this is, in reality, no different. the world only spins forward.

    how do you want to be remembered? as a proud example of American Liberty, or as a shill for the country's scum?

    Posted by: LittleKiwi | Dec 7, 2012 3:50:42 PM

  25. 5-4 or 6-3 in favor, maybe Roberts will come along like he did for healthcare.

    Posted by: Mike | Dec 7, 2012 3:51:13 PM

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