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Sep 24 2012

Prop 8 Update: on the SCOTUS conference docket

The first SCOTUS conference of the session is today and both DOMA (multiple cases) and Prop 8 are on the docket, meaning the Court will (probably) decide whether to take one or the other up in the next term. The votes of four justices are required for a case to be heard by the Court.

Although they are on the docket, it’s not uncommon for cases to be rescheduled, so it’s possible for the day to end without any information on whether the Supreme Court is planning on hearing the cases.

So what do we want?

Well, because of the extremely narrow ruling in the Prop 8 trial, it would probably be better for the court to decline to hear it. As I understand it, this would make gay marriage legal in California, effective immediately. It would also mean that the court would not be ruling for universal gay marriage, but they are somewhat unlikely to do that off of the Prop 8 decision — again, because of the narrow ruling in previous courts.

DOMA, on the other hand, looks like it could be fully destroyed by the court if it is picked up.

Gay marriage might resume in California very, very soon.  We shall see.

5 comments

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  1. 1
    steve84

    Even if they take it, the case is no longer about a fundamental right to same-sex marriage, but about whether it is legal to rescind an already given right with a ballot initiative. It rests almost entirely on Romer v Evans now.

  2. 2
    Ashley F. Miller

    I don’t disagree. It’s not unprecedented for the court to take an opinion and broaden, but it would be somewhat unusual. Certainly they have more political cover than they did 4 years ago, thanks to shifting public and political opinion. Ted Olson is very good with convincing them, but I just don’t see Prop 8 being the case upon which gay marriage is fully legalized. I could be wrong.

  3. 3
    slc1

    It could be that the decision on whether to take the case could rest on whether the conservative justices think that Kennedy appears to be leaning toward upholding the 9th circuit decision. If it appears that he is, they would probably punt, waiting for a less narrowly decided case.

  4. 4
    Quine

    I’ll place my bets. I think they won’t take it because the conservatives know they can’t put Prop 8 back together, again, and do not want marriage equality to move past California and the few other states any faster than it is (they all know it will be universal, sooner or later). However, I don’t see how they can sidestep DOMA because it is an action of one part of the government against another, and sorting that kind of thing out is part of the SCOTUS job description. (When they do take it, they will have to uphold the lower court and throw DOMA out on equal protection grounds.)

  5. 5
    W. Kevin Vicklund

    No grants today for Prop 8 or DOMA. We should find out on Monday if they’re denied or re-listed (re-listing would indicate wanting to bundle with other marriage-related cases).

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