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. @Mary: These cases were managed carefully. Just cause you're new to the cause doesn't mean everyone is. And your "concern" about the social chaos that will result from a law being correctly found unconstitutional has no basis in reality. You don't know what you're talking about. If you're sincere, stop giving advice and start learning from those who know more than you do.

    Edie Windsor is 83 years old. She was married to a woman who shared 44 years of her life. The government owes her $350,000. Waiting is not an option, so stop the fear mongering or write the check to Edie yourself.

    Posted by: Ernie | Dec 8, 2012 6:07:04 PM

  2. Ernie, I like you a lot. So I hope you won't be offended when I say that your last post sounds like a cross between you and Kiwi (although I know it's you.) I can't guarantee Mrs. Windsor justice anymore than you can guarantee me that there won't be political fallout from a pro-marriage court ruling. But why would you play right into the hands of the anti-gay forces just when things are going well for you? An incredible amount of progress has been made in just the past 12 months. SSM in all 50 states won't take decades to happen. But as of now only a few states, liberal ones, have voted it in by referendum or the legislature. So a pro-SSM ruling by the Supreme Court court DOES validate NOM's claim that "unelected judges" are circumventing the democratic process. I honestly think that seeing SCOTUS settle this whole issue sets us back. The question isn't whether this is just, it is whether or not the public buys the argument. Many people's support for gay rights is still tenuous. Personally I'd rather give it time to solidify before trying anything risky.

    However, I DO believe that DOMA is unconstitutional.

    I wish Jonathan Rauch would post on Towleroad and back me up on this! Over at IGF more people agree with me about tactics.

    Posted by: Mary | Dec 8, 2012 8:39:03 PM

  3. Mary, you're under the mistaken impression that the people who spent years taking these cases to the Supreme Court know less than you do. They don't. They know more. And they also know that a majority now supports equality and for the next generation it's a no-brainer. The approach has been conservative all along.

    The state by state approach, successful as it's been in states like mine, does nothing to address federal inequality. The Constitution does. It has nothing to do with playing into NOM's hands. They are well on their way to irrelevance. Risk is couples and families without federal protections; it is not make believe repercussions of a Supreme Court decision that favors equality. Trust me on this one. I've been doing this for as long as Jonathan Rauch has.

    If you want to really be an advocate and not a concern troll, stop worrying about the consequences of equality and start worrying about the consequences of inequality.

    Posted by: Ernie | Dec 9, 2012 12:38:16 AM

  4. "Haven't you read the Scriptures?" Jesus replied. "They record that from the beginning 'God made them male and female.' Matthew 19:4

    When you are for same sex marriage you are against God now let us see who will win God or the people...... You better know that He will pronounce the final judgement in favor of His Word --- For He said heaven and earth will pass away but His Word will stand forever.

    Posted by: Sha-Retha | Dec 9, 2012 4:36:54 AM

  5. @Just_A_Guy: I don't know who you are but I do know that you are a moron if you don't know that Kiwi posts under numerous aliases in order to silence dissent. I have experienced his tactics myself and have seen him post vile things about Rick's parents. If you, like him are a homofascist, this life long liberal democrat and out gay man calls you out.You and kiwi and the other homofascists can't tolerate dissent. Deal with it, because I will not stop calling you people what you are: Authoritarian Bullies.The Donald Trumps of the left. This left winger condemns you!!!!!

    Posted by: andrew | Dec 9, 2012 4:48:14 AM

  6. I ask the Judges that please take time and ask themselves, Do I desire that the children of my children to see and live around this wrong environment of "DOMA", This is a big sin and I ask please do not do things that you would repent, then therefore are unpleasant things to our Lord.
    Recalls Sodom and Gomorrah. Genesis 19
    Do not open doors to the enemy, therefore is filtered like worm in our lives.
    In advance thank you, our lord will compensate you.

    Posted by: David L | Dec 11, 2012 10:06:59 AM

  7. I ask the Judges that please take time and ask themselves, Do I desire that the children of my children to see and live around this wrong environment of "DOMA", This is a big sin and I ask please do not do things that you would repent, then therefore are unpleasant things to our Lord.
    Recalls Sodom and Gomorrah. Genesis 19
    Do not open doors to the enemy, therefore is filtered like worm in our lives.
    In advance thank you, our lord will compensate you.

    Posted by: David L | Dec 11, 2012 10:07:00 AM

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