The United States Supreme Court issued an order earlier today granting certiorari in two important same-sex marriage cases. The scheduling order will come later, but it’s expected that oral arguments will take place in March 2013. Decisions are usually published in June, regardless of when the cases are argued, and for these cases it will likely be the end of June when we get the decisions.
In the California Proposition 8 case (HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.), the Ninth Circuit Court decision ruling that Prop 8 is unconstitutional is being appealed. (Prop 8 amended the California state constitution to ban same-sex marriage after it had already been legal in the state. There are currently 18,000 married same-sex couples in California.) In addition to the question presented by the petition, the Court has asked for briefing and arguments on the question as to whether the petitioners have standing to appeal.
The petitioners in this case are the Proposition 8 proponents, the organization which put the amendment on the state ballot and campaigned for its success. The state itself declined to defend the case, so the backers of the initiative stepped in to defend it. Their standing (right to defend in federal court) has been at question throughout the process.
At each previous step they were granted standing, but the foundation for that is shaky. The Supreme Court apparently feels that it’s an important separate question they want to address, along with the merits of the case itself.
The Windsor case (UNITED STATES V. WINDSOR, EDITH S., ET AL.) concerns DOMA, the federal Defense of Marriage Act. It is one of only two DOMA cases on appeal to the Supreme Court that has gotten as far as being ruled on by a federal circuit court. The others petitioning for cert have only made it through the federal district court level and are currently still on appeal at circuit courts.
While the deliberations on which cases to grant cert to are not made public, it’s likely that Windsor was chosen over the Gill v. OPM case because Justice Kagan had indicated her intention to recuse herself from the Gill case. The Windsor case allows the full court to hear and decide the case.
Like in the Prop 8 case, the Court increased the complexity of what is being argued by adding two questions it wants addressed in briefing and argument. One is whether the Supreme Court has jurisdiction in the case, and the other is whether BLAG (the House Republicans who are defending the case) have standing to do so.
The first of those two questions is the more interesting one, and the one less easily understood. Why wouldn’t the Supreme Court have jurisdiction? The question arises because the Department of Justice is the petitioner, even though the circuit court ruled in the DOJ’s favor and struck down DOMA. It’s unusual for the winner to appeal a decision.
At issue, from the DOJ’s point of view, is the fact that the executive branch of the federal government is still responsible for enforcing a law that it deems to be unconstitutional until it is struck down by the Supreme Court. The decision by the Second Circuit that DOMA is unconstitutional applies only to the states within the second circuit, so the DOJ is seeking a final high court opinion to settle the matter of constitutionality and enforcement once and for all.
Apparently the Supreme Court believes this point of jurisdiction under these circumstances is an important one to decide, in addition to the merits of the case itself.
The Court’s order can be read here.
Details about these cases and several others can be found at prop8trialtracker.com.