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. @KP: KP's comment, "Well, this has basically taught me that the gay orgs and blogs basically know nothing when it comes to SCOTUS," misses the point. It was unlikely that they would review any case because only about 1 percent get reviewed. Events that occur one time out of a hundred are not so uncommon that one would never expect to see one.

    Given that they broadened the scope, there are some bizarre outcomes that are possible. They could rule that states in general have the right to allow or forbid same-sex marriages, but that you can't remove a right out of animus. The Proposition Eight campaign was based on what the high-tech industry calls FUD (Fear, Uncertainty, and Doubt). That campaign put out lies to the effect that kids in kindergarten would be told about sex, that churches would have to perform same sex marriage ceremonies even if that went against the church's religious beliefs, etc.

    The Supreme Court could rule that Proposition Eight was invalid because the campaign to pass it was based on animus, but the proponents still might have an option of reintroducing Proposition Eight and running a "clean" campaign to try to pass it.

    There would possibly be broad benefits in protecting the rights of minorities if the court ruled that the voters must be given accurate information if they are asked to vote on an initiative that limits the rights of a minority - it would make passing any such legislation much more difficult.

    Posted by: Bill | Dec 7, 2012 7:29:38 PM

  2. i've long argued that the courts were not the place to take our fight for equality.
    a decision against us will have huge ramifications for generations to come.
    it does not bode well that the supreme court have decided to take up the prop 8 case when they could have simply sent the issue back to the state (where it belongs).

    Posted by: el polacko | Dec 7, 2012 7:42:07 PM

  3. This is all sounding so much like when Obama was "out" in support of gay marriage. You have the gloom-and-doom liberals, as well as the in-your-face gay conservatives, claiming this is a disaster. You've finally found something to agree on, and you're just sounding so damn insufferable. Grow a spine, liberals, and get a life, conservatives.

    No one knows how this will pan out, but even if SCOTUS goes on the wrong side of history (which I highly doubt), history has a way of rectifying such mistakes. Time passes, people change, gay marriage is legalized in many more states, and the makeup of SCOTUS changes. It's happened before, it'll happen again. In either case, I think we've got a decent amount of evidence to safely assume that things will be ok and go our way. I'm being cautiously optimistic, but I was back when Obama was dancing around his support for gay marriage (actually, I was just irritated at him, as I am with a number of things, like that stupid Nevada judge and NOM et al.), and you all were being so gloomy-and-doomy back then too.

    Posted by: Matt | Dec 7, 2012 8:11:29 PM

  4. I'm not American: Will you know which judges exactly voted for or against? is it revealed?

    Posted by: Collin | Dec 7, 2012 8:34:01 PM

  5. A monumental day can turn into a catastrophic response. Bet they won't go for it. We'll see.

    Posted by: Gary | Dec 7, 2012 9:16:07 PM

  6. It's funny that no one complaints the stupidity of equality California who dropped the ballot after ruling. it's time to reform the organizations and fire the directors who only know to host cocktail parties instead of outreaching. I am so stick of those inept organizations.

    Posted by: Neal | Dec 7, 2012 9:55:14 PM

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

    What happens is that same-sex marriage keeps making progress by being passed in one state after another over time. The good news here is that the Supreme Court's members can't do anything to stop this change even if they want to. All they can rule is that gay equality is not REQUIRED by the constitution, not that it is FORBIDDEN by it. Jon Rauch had a wonderful article once about why its best to let marriage equality be played out state by state in order to create a national consensus. Court action in favor of gay marriage only prolongs that right's argument that "unelected judges" are forcing an agenda on the country. NOM should be facing a serious decline soon. A pro-gay ruling by SCOTUS will only give them a shot in the arm. I'll bet they're secretly hoping for it.

    Posted by: Mary | Dec 7, 2012 10:15:23 PM

  8. @Collin, The basic answer is that a majority opinion will be written by one of the Justices of the court majority and will list the names of the justices which agree with the majority. Another Justice will write the minority opinion and will list the justices that agree with the minority.

    Posted by: ***** | Dec 7, 2012 10:16:56 PM

  9. Oh entitled, so heterosexual.

    Your entire post above perfectly illustrated how utterly clueless you are on this issue.

    Posted by: Greg Cali | Dec 7, 2012 10:32:19 PM

  10. Mary,

    You posted as recently that you think the image of two men showing affection disturbs you. You've posted terrible remarks about gay parents, gay suicide victims (completely overlooking the component of homophobia the victims faced) and spent a good majority of your life actively opposing gay marriage. You are the last person qualified to speak on the interest of gay people. I wouldn't trust a shark in a gold fish costume as far as I could throw you, with your quasi support of us just so you can paint yourself as a moderate.

    Posted by: USC Trojans Fan | Dec 7, 2012 10:34:17 PM

  11. @ Mary

    That reasoning you provided is not justifiable. That reasoning of letting this play out for literally decades to come only serves well for your side. And by your side, I mean the heterosexual that is not at all effected by the lack of equality millions of LGBT Americans face. For you, it's hardly costly or taxing that those LGBT are treated as second class citizens. Seeing them beg for rights from state to state hardly triggers any emotional response for you; so it's easy for someone with a warm platform to sit back and say "Hey guys, be patient, and let this just play out..." It's also a bit self indulgent.

    I could make the very exact argument you made against a federal gay marriage mandate for interracial marriage, and say let it play out state by state so that those opposed to it can't argue that judicial judges impacted the process.

    Posted by: Dynex | Dec 7, 2012 10:37:28 PM

  12. Mary: A majority of the American population now favors gay marriage. So the argument of activist judges imposing their pro gay opinion on the majority is a moot point. Majority of Americans stand with marriage equality.

    That does NOT mean they do so in every pocket of the nation, and that's where it becomes problematic. That an area dominated by ignorance can strip the civil rights of LGBT based on popularity is unjust and UnAmerican.

    Posted by: 2 Dads | Dec 7, 2012 10:39:30 PM

  13. @ Mary

    The tyranny of the majority should not be able to exploit the livelihood, civil rights and equal treatment under the law f the land, of the minority. You- as someone who *attempts* to paint yourself as so fair minded should know that by now.

    Posted by: Duration & Convexity | Dec 7, 2012 10:43:10 PM

  14. Mary, that post came off so icky and calculating, even for you. "Don't give gays equality nation wide via the SCOTUS because it will only anger NOM"....and? so what if it does? So WHAT if their very small base gets fired up. Having the highest court of the United States grant and recognize our equality means far, far, FAR more to me than caring about what NOM and it's members think of me. You completely missed the point on this one- and worse, you did so on purpose and attempted to make it seem like you genuinly care about the plight of gay Americans.

    Posted by: Alex Conjedo | Dec 7, 2012 10:45:48 PM

  15. Mary,
    In my state of Arkansas, it will take another 30 to 40 years (at the very least) before a majority of this state vote in favor of gay marriage. In Mississippi, it will be closer to 50 years. But you already knew that, didn't ya? hence your reluctance for the courts to pass gay marriage.

    Posted by: Klien | Dec 7, 2012 10:47:20 PM

  16. I'm curious to know, do you all think a ballot initiative would have passed in California this year? I lived in that state and truly think it could have.

    Would be very curious to know what readers here think.

    Posted by: Misso Dude | Dec 7, 2012 10:52:57 PM

  17. I'm also not American but the world LGBT comunity is very fixated on this case as well.

    I want to it just two days of trial again in front of Scotus? are the same arguments by both sides going to be made all over again or can we expect them to change their tunes?

    Thanks from Poland!

    Posted by: Martel | Dec 7, 2012 10:54:19 PM

  18. Is there any chance any other state will pass marriage equality from here till June, and if so, can that make a positive impact for our side?

    Posted by: northerngirl | Dec 7, 2012 10:55:56 PM

  19. Interesting. One individual posting under 4 different aliases - all to attack me for saying what Jon Rauch said himself. And I never said that gay couples expressing affection disturbs me. Nor did I say anything negative about gay parents (I support the right of gays to adopt. However, I did say that if Rick Santorum tried to pass laws taking gay people's kids away from them he'd have a hell of a fight from me) And I never blamed gay suicide victims for anything. As for having spent most of my life opposing gay rights, I'm guilty. But a person can change. I'm only asking you to listen to advice. Why are you so friggin threatened, whoever-you-are? It's not like I'm in danger of receiving an offer from Andy to become co-editor of Towleroad or that someone recommended me as the new president of the HRC. Jeez, get some perspective.

    Posted by: Mary | Dec 7, 2012 11:11:33 PM

  20. Also, one more thing. The state by state approach is working - 4 new pro-equality states this year alone. And actually, 5 if you count Iowa re-electing the pro-gay judge. Why argue with success? If you've found an approach that works it's logical to stick with it. I fear you're falling victom to that old weakness of the 1960's and 70's Left - making the good the enemy of the best. SCOTUS could, of course, wave it's judicial wand and declare same-sex marriage legal in all 50 states. But keep in mind that there will be political fallout from such a decision - and none of us knows what it will be.

    Posted by: Mary | Dec 7, 2012 11:39:31 PM

  21. NOM and their supporters' spin sound as confident as the GOP with their presidential candidate's road to victory. Dream On!

    Posted by: Sammie | Dec 8, 2012 4:01:17 AM

  22. @Mary: Hopefully you know that almost all those attacks on you come from the troubled soul of Little Kiwi. Dynex, 2 Dads et al only exist in the troubled mind of that malevolent Canadian. The Donald Trump of the left. The homofascist.

    Posted by: andrew | Dec 8, 2012 6:59:35 AM

  23. @Mary: The state by state approach is working, but not as an end in itself because there is a finite number of states that will cross into the equality column any time soon, and the state by state approach does not address federal benefits, the denial of which cannot be remedied in the states.

    What the state approach HAS done is pave the way for the Court decision finding DOMA unconstitutional, which it clearly is. Without all those married couples at the state level, there would have been no case. SCOTUS deciding that DOMA is unconstitutional has nothing to do with magic wands, it's all about the constitution. (They don't have to make a sweeping freedom to marry decision to find DOMA or Prop 8 unconstitutional; it is more likely to be a narrower decision.)

    You don't wait when you believe the constitution is on your side. You seek remedy for injustice, as the Loving case showed. The only political fallout from the SC decision will be if they ignore the inevitable trajectory towards equality and their own place in history and vote for discrimination based on their personal or religious biases.

    Posted by: Ernie | Dec 8, 2012 10:38:24 AM

  24. Mary, you show yourself to still be an apologist for entrenched discrimi nation . It is absurd to say that li'l k is justo posting under multiple aliases. No, Mary, we know you here, and collectively find your veiled homophobia revolting.

    Posted by: Just_a_guy | Dec 8, 2012 11:17:20 AM

  25. Just_a_guy, if I'm an apologist for anything it's for believing that social change has to be managed carefully to avoid causing social chaos. This is a view I still hold even though my position on gay rights/marriage has changed. Backlashes do more than stall progress - they put those in the minority in danger. Keeping people safe is a worthy cause also. All the people who advocate "as much as we can get as soon as we can get it" are never around to explain or apologize for the disasters they caused by putting their emotions above logic and reason.

    And I never said it was Little Kiwi posting under 4 aliases. I just said it was the same person. In the past I've criticized others for accusing Kiwi without any proof.

    Posted by: Mary | Dec 8, 2012 2:39:25 PM

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