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. Yeah, a loss on the broad constitutional question would mean we can longer argue same sex marriage is a constitutional right. It would kill one of most potent arguments in the crib and put an official stamp of approval on antigay arguments. It could be a disaster for us.

    Posted by: Jake | Dec 7, 2012 3:53:47 PM

  2. This is going to get struck down. I am hereby making my own prediction. Their only argument is the Bible. June is going to be a good month.

    Posted by: AJ | Dec 7, 2012 3:54:29 PM

  3. Chief Justice Roberts did pro bono for gay rights causes when in private practice. He's married but has two adopted daughters. He's got some class and is good looking. Closeted? I don't think so, but he could be a big surprise vote on the gay marriage issue.

    Posted by: Dan Cobb | Dec 7, 2012 4:00:19 PM

  4. "Yeah, a loss on the broad constitutional question would mean we can longer argue same sex marriage is a constitutional right"

    It's not. If it were, marriage laws would not have been delegated to individual states.

    Those of you hoping for a sweeping decision that would legalize same-sex marriage nationally were and are dreaming. On the other hand, I suspect the Court will uphold the lower-court rulings on both Prop 8 and DOMA and did not think that it could just duck the questions since they have become such high-profile social issues at the national level.

    The cases will probably be narrowly decided (in our favor) because that kind of incrementalism is the approach the Court usually takes towards such contentious issues, desiring neither to get to far ahead of public opinion, nor to lag too far behind it.

    Posted by: Rick | Dec 7, 2012 4:02:29 PM

  5. What Rick said.

    Posted by: Howard | Dec 7, 2012 4:05:52 PM

  6. @Quest Well considering that Kennedy is the author of both Lawrence v. Texas and Romer v. Evans, that hope might not be such a long shot.

    Posted by: Mike | Dec 7, 2012 4:10:12 PM

  7. Here is an interesting analysis by SCOTUS Blog on another possible outcome for PROP 8:

    Again on standing in Perry: Just to refresh about the record: In Judge Walker's Court, the same-sex couples had standing, and the state of California had standing. When the state refused to defend Prop. 8, Judge Walker allowed intervention by the Prop. 8 backers. That was not disputed.
    But when Walker ruled, and the state declined to file an appeal, the issue arose as to whether the backers of the measure could stand in for the state. The 9th CA asked for an got advice from the Calif SCt on that issue under state law, and then found Article III standing for the backers to appeal. If that standing decision is overturned, then the 9th CA had no live controversy before it, and it would have lost jurisdiction.
    There is no doubt -- at least until I am better informed -- that Judge Walker had jurisdiction to decide the case. Please e-mail me if you have reason to think I am wrong. At this blog, we are not a bit uncomfortable confessing error.

    Posted by: Howard | Dec 7, 2012 4:12:28 PM

  8. Wow, never thought I would say this but I agree with Rick. Honestly, I think it might be best for the Court to narrowly rule on Prop 8. It sucks to admit but the country is just not ready for SSM nation wide. If the Court ruled for SMM for all 50 states, they would be a lot more pushback than there might be in 10 years.

    Posted by: Lee | Dec 7, 2012 4:19:31 PM

  9. I think you're going to lose the prop 8 case simply because it feels like a democracy vs judicial thing for my and the will of the people (no matter how stupid) matters more that the opinion of a judge .

    Posted by: aki | Dec 7, 2012 4:19:56 PM

  10. @Jake, read up on Baker v Nelson and what that has meant since 1972. "Same sex marriage as a constitutional right" was decided then. By hearing these cases there's the potential for a overturning of that case's precedent but as it stands now that broader argument has already been lost.

    Posted by: unruly | Dec 7, 2012 4:21:09 PM

  11. Remember, if it is legalized nationwide in June, there is no possibility of a federal constitutional amendment. It would be dead on arrival in the Senate.

    Posted by: Anthony | Dec 7, 2012 4:30:40 PM

  12. Rick is wrong. Rights are not a popularity contest. States have recognized the right to marriage, and that gay people are not excluded from that right. The federal government cannot interfere with that right, and furthermore federal law cannot allow some states to stomp all over it.

    Unruly is also wrong. Baker is not precedent. No less than Scalia himself recognized this in Lawrence.

    Posted by: Randy | Dec 7, 2012 4:34:54 PM

  13. So, SCOTUS isn't taking up the Arizona case?

    Posted by: Cemil | Dec 7, 2012 4:35:25 PM

  14. @ JAKEY :

    Bless you ! Roberts a swing vote !!!
    I fell to the floor laughing.

    Posted by: JackFknTwist | Dec 7, 2012 4:46:09 PM

  15. Prediction:
    DOMA Overruled 6-3 with Scalia, Thomas, Alito dissenting.

    PROP 8: Proponents have no standing, OR
    Prop 8 Unconstitutional based on Romer VS. Evans 6-3 OR 5-4 depending on how much Roberts is willing to swing.

    Insiders Note: Ted Olson is a very calculative attorney who is very much in bed with the conservatives of the court and has a VERY strong record with the Supreme Court. He will never bring a case to his friends on the bench unless he knew he had a really good chance in being successful. Olson is really good friends with Roberts, Alito, and Kennedy.

    Kennedy is the real major player who I think has shown very clear indications that gay marriage is a constitutional right, and I would not be surprised that he is worried about his legacy on the court. Roberts will also come to play, being the chief justice he is worried about legacy as well as this case will most likely be attached with his name forever if we win (much like Obamacare). Both justices see the clear writing on the wall and will want to rule in non-intrusive but yet favorable way that shows that the court is very relevant in setting fundamental precedent and paving the way for the rest of America. If SCOTUS mandates gay marriage all over the country it will swing much of the voters more in supporting gay marriage being that they will be able to see gay couples getting married and see NO harm to the institution. This is NOT the same as ROE V. WADE where people can make arguments that such ruling "lead to DEATHS of innocent babies." They are totally two separate issues. We will see americans supporting gay marriage over 60%+.

    As far as Joe Jervis and their ilk, they can bite me. They need to get over themselves and be patient and WAIT AND SEE. They are NOT lawyers who have argued cases before SCOTUS. They have no connections to these justices (like Olson does), they can only assume things (and in Joe's case his fear mongering may be due to his political opposition to Olson). And let me remind you that these are the same hacks that were against going to court in the first place, saying that Olson was going to lose - so far that hasn't been the case. PROP 8 case has been very successful and carefully crafted in such a way to ensure such success.

    Lastly, so what if we lose? That is not my biggest concern. No matter what happens we have to get the public on our side. And we will. IF Prop 8 is upheld we go to the voters and they can (and will) OVERRULE the court, setting new precedent. Then we have other states to consider: Oregon, Ohio, Rhode Island, New Mexico, Minnesota, Delaware, Colorado, Illinois, Arizona. Once we have these states in our pocket we go back to court with a *NEW* more liberal court. The court has overruled itself many times and it will do so on this as well. Hardwick was overruled by Lawrence, twenty or so years later. But for gay marriage any reversal will come much sooner.

    I believe that time is more than anything on our side. And some us need to learn to be patient if you want to win. Patience and persistence are the two most important ingredients. We think in terms of ourselves and "me me me" - stop that! This is beyond you and me. This is something bigger and much more fundamental. We are setting the building blocks for human equality for tomorrow's generation of gay Americans to come.

    Posted by: Jose S | Dec 7, 2012 5:14:50 PM


    Roberts has a history re gay issue. It may be pro bono and it may be that his firm made him do it. BUT I still stand by my belief that Roberts is a swing vote on this issue:

    1.) He can see that public opinion is going by way of acceptance of gay marriage. Therefore, he would not want his Court to be known to be on the wrong side of history.

    2.) He's not a curmudgeon like Scalia, and I can see him as a progressive catholic.

    3.) I am betting that he's the reason why Ted Olson is confident to argue in front of the SCOTUS.

    Prepare to eat crow when the judgment is handed.

    Posted by: Jakey | Dec 7, 2012 5:16:28 PM

  17. @Jose S

    Beat me to it! And a much better response to boot!


    Posted by: Jakey | Dec 7, 2012 5:18:06 PM

  18. @ Jake:
    "Yeah, a loss on the broad constitutional question would mean we can longer argue same sex marriage is a constitutional right. It would kill one of most potent arguments in the crib and put an official stamp of approval on antigay arguments. It could be a disaster for us."
    I am pretty sure we have more and better arguments for us to use in favor of allowing gays to marry. The constitutional argument was really not used during the elections that lead us to victory (we used commitment as a better more effective argument), and besides I think using such argument that you pose has no real weight being that the SCOTUS has not YET ruled if there is an actual constitutional right to gay marriage.

    Posted by: Jose S | Dec 7, 2012 5:23:36 PM

  19. I'm going to guess that conservatives wanted the Prop 8 case and liberals wanted the DOMA case so they did a deal to cover both. Just about everyone wants something out of these cases. In particular, Kennedy and Scalia, since they see the culture wars so differently. Kennedy also has to maintain his idea of "personal liberty" in precedent. Scalia wants to please the Pope, but even if he loses he likes writing scathing dissents. Nothing can be predicted at this time.

    Posted by: anon | Dec 7, 2012 5:31:37 PM

  20. When the rice and confetti have been swept away, the champagne long gone flat, many of us will find our lives have suddenly become not more free, but less. Idiots.

    Posted by: Gary | Dec 7, 2012 5:54:18 PM

  21. @ JAKEY :

    I accept your wager !
    Prepare to eat roast crow !!!!

    Posted by: JackFknTwist | Dec 7, 2012 6:16:10 PM

  22. LAME leaders in Equality California refused to put it on the ballot this year...
    WE WOULD HAVE WON!!!!!!!! I'm IN California...I travel all throughout this marriage is a non issue. OUR LEADERS FAILED US!

    2014 IS A HORRIBLE DECISION!!!!!!! ...The mid term elections ONLY bring out elderly and conservative voters. Young people do NOT vote in mid term elections!


    Posted by: Greg Cali | Dec 7, 2012 6:50:52 PM

  23. 2014? Mid elections are very risky. Liberals, youth vote, and college voters are not keen on voting then. The Presidential election, especially this very pro liberal leaning one with great momentum for gay marriage (facilitated by our Presidents endorsement) was the one to put same sex marriage on the ballot. I'm sure it would have been successful. In my opinion, they should either now wait for 2016. 2014 is very risky in that if it fails again, California will no doubt be one of the last states in the union to see gay marriage, perhaps behind even some Southern states, and that would be a crying shame!

    Posted by: Scott Johansen | Dec 7, 2012 6:53:26 PM

  24. If we attracted 48% of voters for our side here in California over 4 years ago, with the calculating and massive Mormon campaign and with a terrible campaign of our own....we would have absolutely won (even by a small margin) this time around at the ballot box. That California marriage equality organizations were so over confident in the conservative leaning courts is very frustrating. The people have evolved, especially in CA. 2008 we had 48% of support. It's 2012, with a President who has incredibly supported marriage equality, and we chose not to put it on the ballot? I too believe it was a very costly mistake by our leaders.

    Posted by: Art Smith | Dec 7, 2012 7:12:08 PM

  25. I wouldn't put it on the 2014 ballot. I agree that the problem with a 2014 ballot is that most Californians don't even vote for a Presidential election, much less a 2014 one. And those who favor gay marriage aren't as passionate about it to vote in a 2014 election. But the church crowd, and massive churches sure will demand all their dozens of thousands of members stand in line and vote against our equality.

    I would say wait for the 2016 Presidential election, even though it's absolutely terrible to think how LGBT contribute more in the state of California (by the millions) than perhaps any other state in the country.

    Posted by: Michelle | Dec 7, 2012 7:14:24 PM

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