1. Jim in MN says

    Don’t you *REALLY* think that SCOTUS is going to punt the entire thing by saying that the proponents in BOTH cases do not have standing to argue before them? Won’t that 1) prevent a Supreme Court precedent being set 2) allow PROP 8 to drop in the ninth circuit and LGBT marriage equality to begin there and 3) drop DOMA Section 3 for the second district allowing FEDERAL RECOGNITION of marriages in CT, VT, and NY and forcing the hand of Congress to repeal DOMA at a legislative level? All without having any supreme court decisions, especially on the applicable level of scrutiny? Seems to me, its ALL set up for that to happen quickly.

  2. Rich says

    Punting on 8 is the easier one — there is a good basis in the 1997 Arizona case to deny standing, and as that would leave Walker’s decision intact for California, it’s not a total loss for us.

    The DOMA case is more difficult to punt on because the statute is Federal, and a result that grants Federal recognition to New York marriages but not to Iowa marriages is probably too absurd even for Justice Scalia.

  3. Zlick says

    I don’t think they would punt – BUT the truth is, there’s no proper standing in either case. If the Supreme Court lets that pass and gets to the merits of these cases, which I believe they will, they will be setting up an unfortunate precedent for ignoring the requirements of Article III standing under the Constitution.

    I’m all for getting to the meat of these cases, but I’m also for the rule law. And the plaintiffs in both cases simply DO NOT have proper standing.

  4. Jim in MN says

    I get that its a Federal issue, but the GOP is acting as the Department of Justice in bringing for this case, the proponent (the DOJ) has removed itself from the case, so somehow a majority of the justices will have to find that they have standing, that they can act as the government when the government feels it does not have a case, that alone is controversial and sets a bad precedent. I really think they are going to diffuse the whole thing by saying in both instances their is no standing to argue… it also allows them (as they said in the video) more time to be able to rule on things like level of scrutiny… Seems to me its the obvious path. A question I have, though, is, doesnt the Supreme Court need to rule on standing BEFORE actually allowing them to argue? or do they allow them present arguments then go away and come back and say they have no standing… which makes no sense.

  5. Anthony says

    The Prop 8 proponents have no standing, but with DOMA, SCOTUS can still rule on standing for the U.S. and strike it down, and possibly grant heightened scrutiny. The way they are setting these cases up so carefully makes me think they are going to make a big ruling.

  6. Chuck says

    @Zlick: “And the plaintiffs in both cases simply DO NOT have proper standing.”

    I think you mean the defendants have no standing. The defendants in the Prop 8 case are the religious nuts, not the state of CA, and the defendants in the DOMA case are the repubs in the House, not the DOJ.

  7. Paul R says

    Of course the court is going to issue a ruling. Maybe people have noticed that the issue has attracted a fair bit of attention? And that the court doesn’t take and announce cases more than 6 months in advance just to say that there’s no standing?

    Many of these justices are activists.

  8. says

    Can one of you very bright legal eagles expand a little bit more on the concept of “level of scrutiny”.

    Is there a different test to determining the constitutionality of State laws and Federal laws ?
    This federal system is very alien to me.

  9. Chris says

    Why would the Supreme Court have accepted the cases for review in the first place, if they’re just going to “punt?”

  10. Zlick says

    Yes, thank you, Chuck. I meant the Defendants.

    Punting would be in accordance with the law, but also would seem to make zero sense. As Chris noted, why bother to take the cases?

    Either way – wow – Supreme Court hearings next week! Five years in the making, on the Prop 8 case. Rulings in June. I’m so glad we’re finally here … and that even punting would be a good result for us in both cases.

  11. anon says

    Denying standing to the Prop 8 petitioners would overrule the ninth. It would be a legal mess. Denying standing to Congress would go against precedent. They don’t risk that and subject themselves to retribution.

    Scrutiny is a way to measure the balance between majoritarian rights and individual/civil rights. A law is subject to strict scrutiny by the courts if it suppresses individual or civil rights. There are legal “tests” that are used at the lower court level for scrutiny.

  12. Ryan says

    why would they take the cases and then punt? it takes fewer justices to agree to hear a case than it does to form a majority opinion. not saying they will punt, just answering how it could happen.

  13. MiddleoftheRoader says

    The unfortunate thing about not reviewing the Prop 8 case on the merits is that there is probably no other court case that has dealt with the right to same-sex marriage that has the extensive factual record that exists in the Prop 8 case. The lawyers did a great job of presenting facts that sexual orientation isn’t by choice, that preventing a same-sex (domestic partner) couple from using the word “marriage” has real harm, etc etc. And the trial court judge made “findings of facts” based on this record that are hard for the Supreme Court to ignore or overturn. So if the Prop 8 case is thrown out on standing, and when the next case that raises the marriage issue has a crappy factual record, we could really be screwed by the Supreme Court because there aren’t enough “facts” in the ‘record” to support the pro-marriage arguments.

    Another thing that could happen, which would be a cluster-muck: There might no no majority opinion in the Prop 8 case or the DOMA case. It’s possible that 1 or 2 Justices (Roberts and/or Kennedy) write a decision that says there is no standing, and they don’t go further than that; then 4 Justices (Breyer, Ginsburg, Kagan & Sotomayor) say that Prop 8 and DOMA are unconstitutional; and then 3 or 4 Justices (Scalia, Alito, Thomas and either Roberts or Kennedy) say that Prop 8 and DOMA are constitutional. Then what?

  14. Chuckles says

    In the DOMA case, the standing of the plaintiffs (DoD) is at issue too.

    SCOTUS can deny Congress/BLAG’s standing in the DOMA case — and probably very much want to based on longstanding positiuons on separation of powers — but as long as they determine the DoD has standing, then they can proceed to decide the DOMA case.

  15. Chuckles says

    Can someone have a little chat with Goldstein about the terms “gay marriage” and “homosexual”?

  16. dcinsider says

    “Level of scrutiny” applies to the test applied when allegations of discrimination are made by certain identified minorities.

    “Strict scrutiny” is used on all racial classifications. Thus, if the state were to classify ANYTHING on the basis of race, the state would be required to show, under strict scrutiny, three things: (1) classification is justified by a compelling state interest; (2) the classification (or law or policy) is narrowly tailored to achieve the goal or interest identified in (1); and , (3) the classification law or policy is the least restrictive means by which to achive the goal or policy in (1).

    “Rational Basis” is the lowest level of scrutiny and is applied when a person challenges a law or policy on constitutional grounds, but the person (or group) are NOT a recognized minority. All the state need to prove is that the law or policy is rationally related to a legitimate government interest. This is the level traditionally applied to gay and lesbian discrimination because the SCOTUS has not ruled on whether gays and lesbians are entitled to higher protections due to our minority status. If the SCOTUS does find that gays and lesbians are more protected because of our minority status, they are most like to apply “intermediate scrutiny”.

    “Intermediate scrutiny” is applied in gender-based discrimination and requires that the state prove that the law or policy furthers an important government interest in a way that is substantially related to that interest. So while rational basis requires that the law be rationally related to legitimate government interest, intermediate scrutiny requires that it be an important government interest.

    A finding of intermediate scrutiny by SCOTUS would likely strike down ALL existing same sex marriage bans throughout the US (once challenged), and would also tend to support claims of discrimination in the workplace and other arenas.

    Hope that helps.

  17. Craig Nelson says

    My thinking on these cases is this. They will take DOMA because chaos will ensue if a federal law is of uncertain pedigree. If, incidentally, they allow for heightened scrutiny as well as disposing of a lot of arguments that are common to the two cases this, along with denying standing in the Prop 8 case, this would leave us where Kennedy probably is happiest.

    1. If you’re a district judge striking down a refusal to marry you’re not going to be humiliated by a later SCOTUS ruling.

    2. A precedent would have been set that if a State didn’t defend such an impugned law various others would not enjoy federal standing to appeal the decision.

    3. SCOTUS is not obliged to take cases it feels has been handled satisfatorally at a lower level. Marriage equality can then (provided there is heightened scrutiny) proceed state by state, circuit by circuit. If a circuit ruled against equality then it could be taken by SCOTUS and overruling in this case would provide equality in 50 states. However if ruling according to the DOMA precedent buttressed by Lawrence and Romer this is less likely.

    4 Using this approach will allow the ‘conversation to continue’ (for a year or two). In this several states may equalise marriage by a legislative route. More likely once one circuit had legalised marriage equality and that was not reviewed by SCOTUS it would in any case be game over as others would follow (this would take some clever litigating to try to get to favourable decisions earler). If all decisions were uniform marriage could be legalised across 50 states and SCOTUS not need to issue any other ruling than DOMA in order to do it.

    So striking down DOMA and denying standing in Prop 8 would be a very good outcome. Below that they try either the 9 state solution or the California specific ‘you can’t take it away’ doctrine.

    Personally though I think they will want to bring some speedy resolution to this matter as outlined above even if it takes a few more rulings from lower courts to get there (I think it was a little like this in Canada where the issue was more or less tidied up at the different lower courts rather than by the Supreme Court or the subsequent vote by Parliament).