Issue:  Vol. 48 / No. 3 / 18 January 2018

Breaking: Supreme Court to hear Prop 8, DOMA cases


The U.S. Supreme Court will hear California's Proposition 8 case, and a Defense of Marriage Act case out of New York.
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In a surprise development, the U.S. Supreme Court announced today (Friday, December 7) that it will review both the Proposition 8 case concerning a statewide ban on same-sex marriage in California and a Defense of Marriage Act case out of New York concerning a ban on federal recognition of same-sex marriages.

Many observers had predicted the court would hear a case involving DOMA, but many more expected the court to pass on reviewing a lower court decision concerning Prop 8, the California ban on same-sex marriage. Theodore Olson and David Boies, the high-profile attorneys who had successfully challenged Prop 8 in the lower courts, had urged the Supreme Court to deny review of the 9th U.S. Circuit Court of Appeals ruling. That ruling, they noted, did "not conflict with any decision of [the Supreme] Court or any other court of appeals.'

But refusing to hear the Yes on 8 attorneys' appeal of the lower court decision would have meant same-sex couples could start obtaining marriage licenses within days, dramatically increasing the population of states allowing same-sex marriage.

And while many expected the court to take one or more cases concerning DOMA, the big question was which case or cases it would review.

The court has chosen to review a 2nd Circuit case, Windsor v. U.S., in which the surviving spouse, Edith "Edie" Windsor, is challenging the federal government's refusal to recognize her marriage when it comes to estate taxes on her deceased spouse's estate.

In both cases, the Supreme Court has presented attorneys on both sides with a question on a procedural issue of standing in addition to the original question on merits.

In the Prop 8 case, Hollingsworth v. Perry, the court asks that attorneys argue whether the Yes on 8 supporters of the initiative have legal standing to appeal the lower court's decisions given that the state of California chose not to press an appeal. That means it may be possible the court will let the lower court decision stand by simply ruling that Yes on 8 did not have legal standing to file its appeal. The result would be the same-sex couples would be able to marry – but the resolution would be delayed until June and be politically less consequential.

The Olson-Boies legal team raised the standing issue after Yes on 8 filed its first appeal to a 9th Circuit panel. Asked whether the court might use the standing issue as a way out of ruling on the merits, Olson said in a conference call with reporters Friday that he thinks the court will "probably get to the merits" of the case but said that, if it doesn't, then the 134-page U.S. district court decision declaring Prop 8 a violation of equal protection would be the prevailing decision in California.

"Everyone is anxious to get to the merits," said Boies, but he acknowledged his legal team has argued that Yes on 8 does not having standing to make their appeal. But ruling that Yes on 8 does not have standing would still allow the citizens of California to enjoy marriage equality, said Boies.

In the DOMA case, the Supreme Court asks attorneys on both sides to argue the Obama administration's agreement with lower courts that DOMA is unconstitutional "deprives" the Supreme Court of jurisdiction to decide the case. It also asks whether the Bipartisan Legal Advisory Group has standing to appeal the lower court decisions to the Supreme Court. BLAG attorneys were hired by the Republican-led House of Representatives after the Obama administration announced it would no longer defend DOMA in federal court.

Olson told reporters on the conference call Friday afternoon that he is "very confident" that the outcome of the case before the U.S. Supreme Court "will be to support the rights of our gay and lesbian brothers and sisters."

"We could not be more gratified that this is the case" on which the Supreme Court may decide "the most important civil rights issue of our time," said Olson.

Boies was more guarded, saying he was "encouraged and excited about the prospect that we will finally get a decision on the merits."

Asked whether the Obama administration might weigh in on the Prop 8 case at the high court, Olson said "we would certainly hope they would participate ... and would support our position. ..."

The Obama administration has weighed in on the DOMA cases, arguing in court that it believes the core section of the law to be unconstitutional.

The high court did not indicate Friday whether it would hear an appeal from Arizona, seeking to preserve a state law that bars gay state employees from receiving health benefits for their domestic partners the same as straight state employees are able to obtain for their spouses. Some indication of that, as well as denying review on several other DOMA cases, could be issued on Monday's routine orders list.

One of the Prop 8 plaintiffs, Kris Perry, said "we have learned how to be patient" and that, while she would like to be getting married next week, she is hopeful that, by hearing the Prop 8 case, the court might rule in a way that will make same-sex marriage possible for many others.

Reaction quickly came in from marriage equality advocates.

"Today marks the beginning of the end for a California journey that started eight years ago when San Francisco issued same-sex marriage licenses," said Lieutenant Governor Gavin Newsom, whose decision in 2004 to allow same-sex couples to wed jump-started the marriage equality movement in the state. "By agreeing to hear the Proposition 8 case the U.S. Supreme Court could end, once and for all, marriage inequity in California."

State Senator Mark Leno (D-San Francisco) twice passed same-sex laws in the Legislature only to see them vetoed by then-Governor Arnold Schwarzenegger, also issued a statement.

"The momentum for marriage equality has never been stronger in our country," Leno said. "We have support from President Obama, recent victories at the ballot box, and polls that show a majority of Americans are with us. In addition, federal courts continue to strike down laws that discriminate against lesbian, gay, bisexual, and transgender people. I am convinced our triumphs will continue."

Arguments in both cases are likely to be scheduled for the second half of March, with decisions expected in late June.


Updates to follow.


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